What Can History Teach Us About the Impact of the 50-50 Senate Split?

The U.S. Senate is currently split with Republicans and Democrats each having 50 members...

The U.S. Senate is currently split with Republicans and Democrats each having 50 members. Even though Vice President Kamala Harris holds the tie-breaking power, the effective “tie” is poised to make the lawmaking process particularly challenging.

What the Constitution Says About a Divided Senate

Vice President Kamala Harris’ time in the Senate may not be ending after all. Article I, Section 2 of the Constitution provides that, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

With the exception of giving the Vice President the authority to cast a tie-breaking vote as President of the Senate, the Constitution is silent regarding what happens when the Senate is evenly divided among two parties. History provides a more useful guide. There have been three equal party splits in the Senate’s long history; they occurred in 1881, 1953, and 2000.

Great Senate Deadlock of 1881

The first evenly-divided Senate occurred in 1881. When 47th Congress convened on March 4, 1881, to consider the cabinet and agency nominations for Republican President James A. Garfield’s new administration, the Senate was comprised of thirty-seven Republicans, thirty-seven Democrats, and two independents. While the session was expected to last 11 days, the gridlock caused by the tied Senate continued for months.

While one of the Independents, David Davis of Illinois, agreed to vote with the Democrats, the other, William Mahone of Virginia, was uncommitted to either party. The Republicans were ultimately able to sway Mahone to their side after awarding him chairmanship of the influential Agriculture Committee and the authority to choose the Senate’s secretary and sergeant at arms. In response, the Democrats used numerous parliamentary tactics to block the Republican’s nominees. The Republican majority in the Senate was also short-lived, with two Republicans suddenly resigning in May in response to a disagreement with President Garfield.

As described in the Senate’s historical account, the assassination of President Garfield on September 19, 1881, finally brought the parties together to reach a compromise. When Chester Arthur assumed the Presidency in October, he called the Senate into a special session. With 38 members to the Republicans’ 35, the Democrats refused to allow three newly appointed Republicans to be sworn into office until a Democratic president pro tempore had been elected. Once they took the oath, the Senate was again split 38 to 38. With no Vice President to cast a tie-breaking vote, the two parties reached an agreement under which the Senate elected Independent David Davis as the president pro tempore, Republicans maintained control of the Senate’s committees, and Democrats were allowed to elect the Senate’s other officers.

Power Sharing Agreement of 2001

Most recently, the Senate was evenly divided following the November 2000 election, with Vice President Dick Cheney serving as the tie-breaker. To address the split, leaders of both parties reached a historic power sharing agreement (Senate Resolution 8).

As described by the Congressional Research Service (CRS), the key components of the power sharing agreement provided for Republican chairs of all Senate committees after January 20, 2001; equal party representation on all Senate committees; equal division of committee staffs between the parties; procedures for discharging measures blocked by tie votes in committee; a restriction on the offering of cloture motions on amendable matters; restrictions on floor amendments offered by party leaders; eligibility of Senators from both parties to preside over the Senate; and general provisions seeking to reiterate the equal interest of both parties in the scheduling of Senate chamber business.

The agreement was not all-inclusive; rather, it served as a framework and memorialized issues on which the two parties could agree.  As the CRS report noted, it “was an experiment” that “differed from many established practices of the Senate.”  Because the agreement was not comprehensive, new issues came before the Senate that had to be resolved by informal agreements, unanimous consent negotiations, or other means. “The success of any Senate organizational settlement depends in part upon its adaptability and that of its members to changing circumstances,” the CRS report further stated.

The power sharing agreement was in effect from January to June of 2001. On May 24, 2001, Senator James Jeffords announced that he planned to leave the Republican party and become an Independent who would caucus with the Senate Democrats. Senator Jeffords’s defection from the Republican party gave the Democrats a 51-50 majority going forward.

What’s Next for the Senate?

With Vice-President Harris ready to cast tie-breaking votes, the Democrats will have a slight edge in the upcoming session. While a simple majority is enough to pass certain taxing and spending measures as well as reverse some Trump-era regulations under the Congressional Review Act, Democrats will still generally need a supermajority of 60 votes to pass major legislation in the Senate. That means they will need to unite all Democrats and recruit at least 10 Republicans to vote with them. While Senate rules have traditionally given the leader of the majority wide authority to set the chamber’s schedule and legislative agenda, the Democrats may be willing to relinquish some of that power when negotiating rules to govern the tied Senate. Democratic Leader Chuck Schumer and Republican Leader Mitch McConnell are currently working on a bi-partisan power sharing deal. However, given the current polarized political climate, it may be difficult to come up with bi-partisan plan that rivals 2001.

If you have questions, please contact us

If you have any questions or if you would like to discuss the matter further, please contact me, Teddy Eynon, or the Scarinci Hollenbeck attorney with whom you work, at 201-896-4100.