A 50-50 Senate: Why it’s Complicated

With the swearing in of Georgia’s two new Democratic Senators, the Senate is now split evenly between the two parties, with 50 senators of each party. Sen. Chuck Schumer (D-NY) has formally become the majority leader. 

Sen. Schumer’s leadership isn’t the same as when Sen. Mitch McConnel (R-KY) was majority leader, because Schumer doesn’t hold a true majority of 51 or more senators. He is majority leader because Vice President Harris, who casts a vote if (and only if!) the regular Senate is tied, is also a Democrat. Therefore, his power is more ceremonial than McConnell’s was. McConnell held a true majority, and was able to direct everything from the daily procedures of the Senate to which bills were voted on by asking his party members to vote a certain way. Now, in the everyday proceedings of the Senate, power and resources must be split differently than they have been for the past four years. Under normal circumstances, in anticipation of a floor vote, the majority leader would ask their party’s members to all agree to the motion, guaranteeing it will pass without the need for bi-partisan agreement. In a split Senate, the most likely outcome is a 50-50 tie, and neither party can “push” their legislation through the way Republicans have been able to for the past four years. 

What sort of precedents are there?

The Constitution offers no guidance in this situation, so it’s up to party leadership to work out a power-sharing compromise. The last time the Senate was split was in 2001. Back then, the parties were able to negotiate an agreement that gave Republicans and Democrats equal access to government resources, equal numbers on all committees (the smaller bodies within the Senate that write and propose legislation), and both party leaders some presiding power. Presiding power is the ability to direct things on the floor of the Senate, to keep a body of 100 people on task. The deal took several weeks to finalize. However, tensions were less high at that time, there was no pending impeachment to deal with, and cabinet confirmations were much further along, so it could take Schumer and McConnell much longer to finalize a similar agreement now due to all the other work the Senate has scheduled.

Where are we at right now?

Until then, moving forward with legislation and other Senate processes becomes difficult, as either party can filibuster legislation (essentially “press pause” on the debate that happens before each potential law is voted on), which requires a 60-person majority to break. Similarly, 60 votes are needed to move legislation from the debate stage to the official voting stage. Democrats could try to change the rules about filibustering, essentially “killing” it, but they would need Republican to formally change the rule, or all 50 Democrats would need to unanimously agree to use the nuclear option (the procedure which was used in 2013 and 2017 to limit the number of votes you need to confirm cabinet members and judicial appointments). 

On Tuesday Jan 26th, Schumer hinted that a deal was in the works, using the 2001 agreement as a model, and that McConnell had relented on the filibuster issue, citing the two Democratic Senators who have publicly opposed getting rid of it. The details of what they agreed on have not yet been released to the public. The deal would need to pass a vote in the Senate, as the resolution in 2001 did. A resolution isn’t law of the land, but is instead a statement of the Senate’s will and self-governance. 

In short, a 50-50 split raises a lot of complications, and both parties will need to work together going forward in a very different way than they have during the past administration. 

Need clarification? Where do you think this situation will wind up? Share in the comments!

{UPDATE} On February 3rd, the Senate announced they had reached a resolution, very close to the 2001 agreement. The most important points include equal distribution of party members on committees, though all committee chairpersons will be Democrats, and the survival of the filibuster. McConnell backed down on the filibuster issue because Democrats were unable to marshal enough support to kill it. With a resolution in place, Senate business can begin in earnest.

Sources and further reading:


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