A tied Senate could end the filibuster, once and for all


(Reuters/Jonathan Ernst.)

This is a guest post by Richard Arenberg, who worked on the staffs of former senators Paul Tsongas (D-Mass.) and George Mitchell (D-Maine), and Sen. Carl Levin (D-Mich.) for 34 years. He is co-author of “Defending the Filibuster: The Soul of the Senate,” and is an adjunct lecturer in public policy and political science at Brown University.

Major analysts agree that Republicans have a very credible chance of becoming the majority party in the 2014 Senate races.  Such is the prognosis of many sites, including Larry Sabato’s Crystal Ball, the Cook Political Report,  the Rothenberg Political Report and here at The Monkey Cage.

But another intriguing and certainly possible outcome is that Republicans gain only enough seats to give them 50 seats.  This creates a tied Senate.  In this circumstance Vice President Biden may cast the deciding vote, thereby giving the Democrats the majority in the Senate.  That, however, is far from the last word.  What is likely to happen in this scenario?

The recent precedent is the 107th Congress. The 2000 election resulted in fifty Democrats and fifty Republicans in the Senate.  With newly elected Vice President Dick Cheney casting the deciding vote, the Republicans became the apparent majority party in the Senate.

Then Senate Minority Leader Tom Daschle (D-S.D.) described the circumstance at the outset of the 107th Congress.  In his memoir, “Like No Other Time,” he wrote:

The fifty-fifty split created an intriguing institutional challenge—determining who would control the chamber and set its agenda in this evenly divided Senate… Both the majority and minority parties have their own weapons of parliamentary procedure, developed over the course of the Senate’s history, to advance or defend their particular positions…

Democrats in the Senate demanded shared power.  As Daschle describes:

We wanted equal committee membership, to replace the one-member advantage the Republicans had enjoyed as the majority party [in the previous Congress].  We wanted the budgets for each committee… to be divided evenly between both parties… If the money and memberships were evenly divided, the chairmanships would be hardly more than cosmetic.

The then-Democratic Whip Harry M. Reid (D-Nev.)  made the strategy explicit:

It’s fairly simple. It takes a resolution to form committees in the Congress. And, of course, it goes without saying that that is something that doesn’t happen with 51 votes. You have to have 60 votes.

Because of the need to pass a resolution to organize the Senate and name its committee chairmen and the Democrat’s threat to filibuster it, the Republicans caved in and made an agreement to share power in the Senate.  Committees were equally divided and other provisions weakened the normal powers of the majority leader.

Should the election of 2014 result in an equally divided Senate during the 114th Congress,  it is safe to assume that the Republicans will point to the power-sharing precedent and demand the same. This demand would no doubt be backed by the promise to filibuster anything less.

Here’s the interesting question.  Last November the Democratic majority used the so-called “nuclear option” to eliminate the filibuster for presidential nominations (with the exception of the Supreme Court).  This established the principle or at least demonstrated the means by which any rule could be changed at any time by a simple majority.  In the wake of a hard-fought election to determine control of the Senate, would the temptation to eliminate the filibuster in order to gain clear control using the simple majority (with the vice president’s vote) be irresistible?  Would the Democratic base tolerate any less?

I have  long  argued  that the use of the nuclear option would place the Senate on a slippery slope.  I believe that the elimination of the filibuster on legislative matter is close to inevitable.

A tied Senate could be the test.

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John Sides · February 11, 2014

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