Senate Majority Leader Charles E. Schumer (D-N.Y.) intends to have Vice President Harris cast the tiebreaking vote, but first he needs to make sure all 50 members of his caucus are on hand to vote yes.
If one Democrat has a fever, breaks an ankle or takes a bad fall, the legislative process would come to a stop until all 50 were able to vote for President Biden’s first critical legislative agenda item.
Worse, Democrats are fully aware that a death could end their majority at any moment, particularly given the increasingly old nature of today’s Senate.
“We are one heartbeat away, and I remind myself every day: I’m not putting off anything until June that I can do today,” Senate Majority Whip Richard J. Durbin (Ill.), the top Democratic vote counter, told reporters Tuesday. “And I want to get as much done as possible.”
Durbin, 76, is one of 18 members of the caucus who are at least 70 years old, six of whom come from states with laws allowing Republican governors to appoint a GOP successor. Two more 70-something Democrats come from states where laws would leave the seat vacant until a special election is held to replace them.
A brief absence would leave Schumer without a working majority for the most contentious legislation and presidential nominees. But a full vacancy with a GOP replacement would trigger a new organizing resolution that would put Senate Minority Leader Mitch McConnell (R-Ky.) back in power.
That’s what happened in the last 50-50 Senate, in 2001, when the two leaders, Trent Lott (R-Miss.) and Thomas A. Daschle (D-S.D.), negotiated a power-sharing deal that called for either side to become a full, normal majority if they got to 51 seats. In June 2001, Sen. Jim Jeffords (Vt.) left the GOP and joined the Democratic caucus, making Daschle the majority leader.
That scenario is unlikely now, as there are fewer true centrists in the two caucuses. Sen. Joe Manchin III (D-W.Va.) does regularly receive criticism for bucking his party, but with a 50-50 Senate, the media-hungry senator receives an outsize amount of attention as the swing vote to determine what can get approved. If he were to switch parties, Manchin would hand all that power to McConnell, who would be able to block anything he wanted.
For Schumer’s and McConnell’s own sakes, they will not want to have a repeat of the whiplashed Senate during the 83rd Congress, in 1953 and 1954.
That Senate began essentially tied, with 48 Republicans, 47 Democrats and an independent who had left the GOP and caucused with Democrats. Then-Vice President Richard Nixon gave the GOP a majority.
In late July 1953, two Republicans died — including the majority leader, Robert A. Taft Sr. (Ohio) — but Congress adjourned in early August that year. When the Senate reopened in January, Taft had been replaced by a Democrat, giving that party a clear majority.
Republicans did not budge, because they could filibuster any effort to give Democrats the majority, according to Don Ritchie, the former Senate historian.
For almost six months Republicans were in the majority without an actual majority, prompting the Democratic leader, Lyndon B. Johnson (Tex.), to take no pity in their plight.
“If anyone has more problems than a majority leader with a minority, it is a minority leader with a majority,” Johnson said, according to Ritchie.
In June 1954, a Wyoming Democrat died by suicide and was replaced by a Republican, giving the GOP an actual majority again. All told, nine senators died over those two years, a record high. Six were replaced by members of the same party.
Today’s Democrats can take solace knowing that one Republican governor, Phil Scott of Vermont, has a long-stated policy that any vacancy that he fills, whether for county office or the U.S. Senate, will go to someone of the same party.
An aide confirmed that policy Tuesday, so if Leahy or Sen. Bernie Sanders (I-Vt.) could no longer serve, Scott would appoint someone who joins Schumer’s caucus.
But that leaves four other Democrats in their 70s who have GOP governors who would likely appoint a successor, giving McConnell the majority. Four other younger Democrats also come from states with a Republican governor who holds appointment power, should some surprise ailment happen to those Democrats.
Republicans have a few of their own sitting in states where Democratic governors could fill a vacancy and give Schumer a clear majority.
McConnell, who turned 79 last month, bristled at questions last fall about his health after he appeared bruised on his hands and face, refusing to answer questions. But last month his allies in the Kentucky state legislature introduced legislation that would require Gov. Andy Beshear (D) to appoint someone of the same party as the departing senators.
And McConnell aides made clear that he supports the move, assuring a Republican would replace the longest-serving GOP leader in history.
In the near term, Democrats are just making sure that everyone in their caucus gets some rest and prepares for a legislative slog known as “vote-a-rama,” a set of debate and unlimited amendment votes that is required when the majority uses a fast-track process to pass budget legislation on a simple majority and not have to clear a 60-vote hurdle to avoid a filibuster.
The first such session, in late January, went until 5:23 a.m., concluding a nearly 15-hour march in which senators conducted 40 roll calls.
“It is just an endurance contest and a gotcha contest,” Durbin said.
They had 16 deadlocked votes that day, most of which were GOP amendments that simply died because they needed a majority to be considered.
But Durbin knows that, as they get ready for this week’s marathon on the pandemic package, which is scheduled to start Friday, he has to keep track of every Democrat to make sure no one gets sick or steps away without voting, for fear that Republicans could win an amendment vote.
Said Durbin: “It just takes one person to wander away.”