From the outside, many of the procedural challenges can seem trivial, but as in any organization, providing a clear road map for conducting business is the only way for the Senate to function effectively; any ambiguity about process can derail legislation. Back in 2001, it took us several weeks to negotiate rules for committee structure and resources in a 50-50 chamber. It was one of the most difficult undertakings either of us faced in all the years we served in leadership.
The circumstances are more complicated today: The country is more polarized. Social media and ideologically inclined 24/7 cable news channels, not nightly network news broadcasts, dominate the conversation. As senators, we had already built not only a solid working relationship but a friendship based on communication and trust. That chemistry between the Senate’s leaders — or many of the members of their respective party caucuses — is not as evident now.
As a result, the hurdles that Sens. Charles E. Schumer (D-N.Y.) and Mitch McConnell (R-Ky.) face are more onerous. Given our experiences, we foresee five main difficulties that will require, at the outset of the new Congress, careful attention and negotiation in good faith.
First and foremost, the Senate needs an organizing resolution at the beginning of each new Congress. The body cannot operate without one. Especially when the membership divide between the two parties is narrow, the two leaders, along with their committee chairs and ranking members, must carefully determine the makeup and leadership of committees. In a sense, it’s akin to agreeing on ground rules before the start of a competition.
The organizing resolution is exclusive to the Senate and does not have the force of law, but it sets the working environment for the two years of that particular Congress. It lays out the infrastructure under which the Senate will operate. But while passage requires only a majority vote, a sense that committee jobs weren’t apportioned fairly can carry over to subsequent legislative debates.
The resolution incorporates the second major challenge: determining committee sizes, membership, and the ratio of Republicans and Democrats on each panel. Normally, the majority party has a majority of each committee’s seats. But in a 50-50 Senate, a mere technical majority goes to the party that holds the vice presidency, since the vice president has a tie-breaking vote, according to Article I, Section 3 of the Constitution. In 2001, we agreed to have equal numerical membership on all committees. That required moving senators off some committees and expanding the membership of others. Generally, senators prize key committee assignments — they sometimes wait years for a seat on their preferred committee. Delivering tough news to a member demands the greatest degree of diplomacy, persuasion and thick skin that a leader can muster. We both had difficult conversations explaining to colleagues with tenure and expertise that they would be reassigned to different committees in the name of Senate balance.
The third challenge involves committee budgets, staff and office space. These resources are key to both parties’ ability to function productively. Normally, the majority party retains a larger proportion of each. In our 50-50 negotiations, we concluded that they ought to be split. At that time, because Republicans were still technically in the majority, given Vice President Dick Cheney’s constitutional role as president of the Senate, it was a controversial commitment for Republicans to make. It could be just as controversial for Democrats now. One step to make this more palatable to the majority was to allow for an allotment of up to 10 percent of each committee’s budget for the majority to cover necessary administrative expenses — anything from computer equipment to engaging outside experts.
We recall intricate conversations about the leadership of the Appropriations Committee, then helmed by Sens. Robert Byrd (D-W.Va.) and Ted Stevens (R-Alaska). Both had served in the Senate for decades, including in leadership; they had a close working relationship. They insisted on maintaining autonomy from leadership in making committee-related decisions on staffing, office space, budget and operating rules, and we understood their concerns.
The fourth challenge is procedural. Normally in a Senate committee, legislation dies — and does not proceed to a full Senate vote — on a tie vote. In a 50-50 Senate with equal committee representation, this could occur frequently without a contingency. Failure to pass a bill in committee with the possibility of a different outcome on the Senate floor, given the vice president’s ability to break a tie, required a solution. Ours was this: In the case of a tie vote in committee, a motion to discharge the bill from the committee could be considered on the floor, by the full Senate, with a time limit of four hours of debate.
The fifth challenge is not one we addressed in our 2001 organizing resolution, but in some ways it is the most pressing concern: security. It wasn’t until several months later, on 9/11, that we realized a need for new safety measures. We vividly recall being told that a plane might strike the Capitol as airliners had just hit the World Trade Center and the Pentagon. In those moments, confusion reigned. The congressional leadership was rushed to the top floor of the Capitol Police headquarters, where the shades were pulled. We were later flown to an undisclosed location, where we stayed for a few hours until we insisted on being returned to the Capitol to announce our determination to resume business the following day.
Days ago, we couldn’t help but remember those moments as members of Congress, their staffs, law enforcement and others faced a mob desecrating the Capitol, breaking windows, shattering doors and trampling through offices. A few rioters even made their way onto the Senate floor.
No doubt, leaders of the Senate and the House of Representatives will spend months sorting out the security failures. A complete organizational review is required, and in the short term, a semblance of comity is urgent: Reports that some members of Congress have refused to pass through newly installed metal detectors at the entrances to the House and Senate floors don’t reflect the cooperation necessary for either chamber to function or do its work.
With a new administration arriving during a pandemic, some of these issues can appear mundane. But they have to be addressed thoughtfully, precisely because resolving them paves the way for the real business of legislating. It’s always crucial. In a 50-50 Senate, it requires even more care.