Georgia’s election officials could take a few days, or even up to two weeks, to declare winners in the state’s two U.S. Senate races, given how close the presidential contest and the two initial Senate ballots were. That means Senate Majority Leader Mitch McConnell (R-Ky.) and Minority Leader Charles E. Schumer (D-N.Y.) will be in a bit of a standoff until there is clarity about which side will hold the majority.
With no new resolution setting up the Senate committees, the panels will remain in their current form for however long it takes to sort out Georgia and then reach a compromise on the new makeup of committees. That freezes in place the expected game of musical chairs as at least nine committees are slated to have new Republican leadership next year — if the GOP keeps its majority.
And, effective at noon on Jan. 3, when this session of Congress ends, three committees will not have anyone to wield the gavel, as the current chairmen are retiring. Those headless committees will not be able to conduct any business or call confirmation hearings for Cabinet nominees or hold hearings on new legislation, because only the chairmen can take such actions.
“Until the organizing resolution is done, they don’t have any authority to do anything,” said Marty Paone, who spent almost 30 years as a top parliamentary adviser to Senate Democrats. “They couldn’t even buy paper.”
The oddest quirk will come on the Health, Education, Labor and Pensions Committee, where Sen. Lamar Alexander (R-Tenn.), the chairman, is retiring, as are two other Republicans on that committee, Sens. Mike Enzi (Wyo.) and Pat Roberts (Kan.).
Until new senators are appointed to the panel, Democrats actually will hold a 10-9 majority.
Sen. David Perdue (R-Ga.) is in perhaps the most unusual situation of all — his six-year term ends at noon Jan. 3, two days before his runoff against Democrat Jon Ossoff.
If he ultimately defeats Ossoff, he will nonetheless have ceased to be a senator for a brief period.
So, at the start of the new Congress, McConnell will hold 51 seats vs. 48 for Schumer, as Perdue waits in limbo and an appointed senator, Kelly Loeffler (R-Ga.), holds her seat until a winner is declared in her runoff against Democrat Raphael Warnock.
President-elect Joe Biden’s transition will continue without much disruption from the Senate’s continued state of uncertainty, although planning for the legislative agenda will be slightly complicated by not knowing whether Democrats hold the majority in the House and Senate, or if Congress will remain divided.
Democrats need to win both Georgia races to deadlock at 50-50, which would be only the second 50-50 Senate since the expansion to 100 senators in 1959. Vice president-elect Kamala D. Harris, upon being sworn in on Jan. 20, would become president of the Senate and give Democrats the tie-breaking vote to have the majority and the committee gavels that come with it.
Even if Democrats win both Georgia seats, the Biden Cabinet confirmation process will begin with Republicans in charge.
Tradition dictates that the Senate start processing Cabinet nominees in early January to tee up several to be confirmed in the afternoon a few hours after the new president is inaugurated, particularly those in critical national security positions.
On Jan. 20, 2017, the Senate confirmed Jim Mattis and John Kelly as secretaries of defense and homeland security, respectively, and held a procedural vote setting up Mike Pompeo’s confirmation as director of the CIA.
Paone, who is now a senior adviser at the Prime Policy Group, took part in the negotiations for Democrats the last time the Senate had a 50-50 split, a similarly confused period of suspended Senate animation.
The Republican and Democratic leaders, Trent Lott (R-Miss.) and Thomas A. Daschle (D-S.D.), could not get to work on the organizing resolution until after the Supreme Court settled the presidential election in mid-December, making clear that Lott would be majority leader once Richard B. Cheney was sworn in as vice president on Jan. 20, 2001.
Lott and Daschle settled things over a tense couple weeks of negotiations, eventually compromising on evenly divided committee rosters and special privileges for any legislation that remained in a tie in committee.
The Senate passed the new committee lineups on Jan. 5, but that still left Democrats a brief window of holding the majority until Cheney was sworn in to replace then-Vice President Al Gore.
Democrats ran the confirmation hearings and approved enough of the nominees in committee to set up 11 Cabinet posts for full confirmation in the hours immediately following George W. Bush’s swearing-in ceremony, including the new secretaries of defense, state, treasury, and health and human services.
“It was a very orderly transition,” Paone recalled.
Now, however, this transition includes the extra wrinkle of Republicans trying to rotate in a bunch of new committee chairmen (or ranking members, if they end up in the minority) because of their internal rules that place six-year limits on holding committee gavels.
So, for example, Sen. Charles E. Grassley (R-Iowa) is supposed to leave the Finance Committee and use his seniority to reclaim the top spot at the Judiciary Committee, displacing Sen. Lindsey O. Graham (R-S.C.), who would then replace retiring Enzi at the Budget Committee.
There’s an internal battle over who replaces the retiring Alexander — Sen. Richard Burr (R-N.C.) or Sen. Rand Paul (R-Ky.).
But none of those moves can occur until there is a new committee resolution, which will not emerge until Georgia has been resolved. Only Graham has the power then to call a confirmation hearing for the new attorney general, while Grassley will have to oversee the hearing for Janet Yellen’s nomination as treasury secretary — even though neither senator will remain as head of his committee.
And no hearings can take place at Alexander’s HELP Committee, Enzi’s Budget Committee or Roberts’s Agriculture Committee, because all three will be gone, leaving nominees for posts such as secretary of health and human services and director of the Office of Management and Budget hanging until Georgia has been settled.
Of course, one way to speed up this process would be clear, convincing victories by one side or the other, so McConnell and Schumer could know who’s in charge and quickly compromise on the committee resolution.
But it took 10 days for Edison Research and 16 days for the Associated Press to call Georgia for Biden in the presidential contest, with a victory margin of fewer than 13,000 votes out of nearly 5 million cast.