Senate Control Will Remain Unclear Until January

With all races being called, Republicans have had a net loss of one seat in the U.S. Senate – so far. Both Georgia seats will be decided in a pair of runoff elections on January 5, 2021 – incumbent David Perdue (R) versus Jon Ossoff (D), and incumbent Kelly Loeffler (R) against Rafael Warnock (D). With Republicans otherwise holding 50 seats in the next Congress to the Democrats’ 48, the two Georgia seats will determine whether the Senate has a 52-48 Republican majority, a 51-49 Republican majority, or a 50-50 tie.

Incumbents Cory Gardner (R-CO), Martha McSally (R-AZ), and Doug Jones (R-AL) all lost their bids for reelection. In the last two days, the AP and others have called the two remaining races (Mark Sullivan (R-AK) and Thom Tillis (R-NC) won re-election), and all other contests were settled last week.

Because Georgia (until this year) was a reliably red state, the GOP and its two incumbents are presumed favorites in both runoffs. But because the 2020 general election was so obviously about Donald Trump, and nothing but Donald Trump, election handicappers are of two schools of thought about turnout in the runoffs. One is that having Trump not on the ballot will disproportionately diminish Democrat turnout, since there were a lot of people who don’t normally vote who would have crawled over broken glass to go vote against Trump. The other school thinks that Trump is unique in his ability to drag conservative nonvoters out to vote for him and the downballot, and that Trump’s absence on the ballot will disproportionally hurt Republicans. (Evidence for either assumption: Trump and Perdue got almost the exact same number of votes, being only 707 votes apart, whilst Biden got around 100,000 more votes than Ossoff.)

There is also the still-open question of whether or not President Trump will campaign for either Republican candidate in Georgia, and how hard, as well as whether or not Trump will do something like shut down the government again and have that hanging over the special elections.

Continued GOP majority. Assuming that the GOP holds one or both of the Georgia seats, Mitch McConnell (R-KY) will remain Majority Leader for two more years, and Chuck Schumer (D-NY) will remain Minority Leader for the same period. (Both men won re-election in their party conferences this week.) McConnell and Schumer can be expected to negotiate an organization resolution that gives the GOP a one-seat majority on all committees (in the 51-49 scenario) or, maybe, a two-seat margin on a handful of committees and a one-seat margin everywhere else (in the 52-48 scenario).

In normal times, three years out of every four, the Senate doesn’t conduct any real business until late January or early February – after the President’s State of the Union address. But in the first year of a new Presidency, the Senate customarily holds nomination hearings on proposed Cabinet nominees in the January 3-19 period, before the new President is sworn in. Immediately after giving his inaugural address and before leaving the Capitol, the new President would then sign the formal paperwork transmitting his Cabinet nominations, and the Senate could confirm as many of the nominees as possible, by unanimous consent or voice vote, on that day so the new Administration could get started quickly.

This tradition started to go south in the first year of President Obama, where only six of the Cabinet nominees were confirmed on January 20. (Republicans demanded roll call votes on Hillary Clinton and Eric Holder for a couple of days, both sides wanted more debate on Eric Geitner, and Obama’s initial nominees for Commerce and HHS had to withdraw.)

Then, the wheels completely fell off during the opening weeks of the Trump Administration, not just due to Trump’s delays in naming appointees and sending paperwork to the Hill, but also because of unprecedented resistance and delaying tactics by Democrats, demanding cloture votes, an intervening day, and then roll call passage votes on all nominees. Only Defense and Homeland Security were confirmed on Inauguration Day, with most having to wait until February or March for confirmation. The relative timetables of the 2009 Obama Cabinet appointments and the 2017 Trump Cabinet appointments are below.

Obama Initial Cabinet Trump Initial Cabinet
Announced Hearing Floor vote Announced Hearing Floor vote
State 12/1/08 1/13/09 1/21/09 12/13/16 1/11/17 2/1/17
Treasury 11/24/08 1/21/09 1/26/09 11/30/16 1/19/17 2/13/17
Defense kept previous incumbent 12/1/16 1/12/17 1/20/17
Justice 1/1/08 1/15/09 2/2/09 11/18/16 1/10/17 2/8/17
Interior 1/17/08 1/15/09 1/20/09 12/15/16 1/17/17 3/1/17
Agriculture 1/17/08 1/14/09 1/20/09 1/8/17 3/23/17 4/24/17
Commerce 2/25/09 3/18/09 3/24/09 11/30/16 1/18/17 2/27/17
Labor 12/19/08 1/9/09 1/24/09 2/16/17 3/22/17 4/27/17
HHS 3/2/09 3/31/09 4/28/09 11/29/16 1/18/17 2/10/17
HUD 12/13/08 1/13/09 1/22/09 12/5/16 1/11/17 1/31/17
Transportation 12/19/08 1/21/09 1/22/09 11/29/16 1/11/17 1/31/17
Energy 1/11/08 1/13/09 1/20/09 12/14/16 1/19/17 3/2/17
Education 12/15/08 1/13/09 1/20/09 11/23/16 1/17/17 2/7/17
Veterans 12/7/08 1/14/09 1/20/09 1/11/17 2/1/17 2/13/17
Homeland 12/1/08 1/15/09 1/20/09 12/7/16 1/10/17 1/20/17

The Biden transition team may be more decisive to select nominees, and quicker to fill out the paperwork, than the Trump team was. (Although the lack of official federal resources to do background checks may hamper this significantly so long as Trump refuses to allow the government to admit that Biden won the election.) But many of the delays on the Trump nominees were due to Democratic delaying tactics, and Mitch McConnell is a man who keeps score of that kind of thing. Accelerating the confirmation of a lot of Biden nominees well ahead of the speed with which the Trump nominees were confirmed in 2017 may not be in the cards.

This is particularly true for the Department of Transportation. McConnell must have been miffed that Democrats delayed his wife’s confirmation as SecDOT to January 31 and wouldn’t let it go by unanimous consent (and then, Schumer and five others voted against her confirmation). Will Obama’s Secretary of Transportation be confirmed by the Senate before January 31? Hmmm.

Beyond that, a 51-49 Senate or a 52-48 Senate will function much the same as the 53-47 Senate has functioned for the last two years – not doing anything major unless it absolutely has to. And the big “has to” date in 2021 will be sometime in late September or October, when the federal government once again hits the statutory ceiling on the public debt. The debt limit has been suspended since August 2, 2019, when it was $22.3 trillion. As of this week, it has climbed to $27.2 trillion, and should climb to around $29 trillion when a new limit at that level pops back into being on August 2, 2021. At that point, new federal borrowing has to cease, and Treasury will have to begin “extraordinary measures” to move money around between the Treasury and the Fed, and between Treasury and federal retirement funds, in order to keep the government solvent.

These extraordinary measures can only last about two months at most, at which point Congress either has to pass a law increasing or waiving the debt limit or else the Treasury starts defaulting on obligations. Getting the votes to raise the debt limit is always like pulling teeth, and the opposition party in Congress usually sits on its hands and makes the President’s party find the votes on its own. It is little wonder why most major federal fiscal policy decisions in recent years were attached to debt limit increases. The last four major federal budget deals (2011, 2015, 2018 and 2019) all included debt limit votes. And the opposition party gets more leverage the closer they are willing to get to a debt limit crisis (see the 2011 experience in particular), so it stands to reason that most of the fiscal decisions to be made in 2021 will wind up waiting until the August-October debt limit crisis talks.

The 50-50 scenario. If the GOP somehow manages to go 0-for-2 in the Georgia runoffs, then Senate bill be split 50-50 once Perdue and Loeffler’s replacements are seated. Prior to January 20, Mike Pence will still be Vice President, but after the inauguration, Kamala Harris will be the tiebreaker, and because of that, she will start giving Chuck Schumer the right of first recognition as Majority Leader instead of Mitch McConnell. (Trivia: the right to be recognized first is the source of all the Majority Leader’s legislative power.)

But just because Harris would be the tiebreaker and Schumer would be recognized as Majority Leader does not automatically mean that the rest of the Senate would be able to function. When last we had this situation, in January 2001, outgoing Majority Leader Tom Daschle (D-SD) was able to negotiate a power-sharing agreement with incoming Majority Leader Trent Lott (R-MS). That agreement was ratified on January 5, 2001 as S. Res. 8 (107th Congress) and it provided for a 50-50 split of seats on each committee (as well as an equal split of office space and staff resources). It also provided that, if a committee had a tie vote on reporting out a bill or nomination, Lott or Daschle could make a floor motion (immune from filibuster) to discharge the committee and put it on the appropriate calendar.

That resolution also provided that no motions to invoke cloture on otherwise-amendable legislation could be made until after 12 hours of debate, and that the right to call up legislation or nominations “shall continue to be the prerogative of the Majority Leader, all though Senate Rules do not prohibit the right of the Democratic Leader, or any other Senator, to move to proceed to any item.”

That resolution was only valid for the 107th Congress. In a 50-50 scenario in January 2021, McConnell and Schumer would be charged with negotiating a new resolution in order to get the Senate organized. Otherwise, no freshmen Senators would be able to be elected to committees, and Republicans would still have majorities on some panels (like Appropriations, or Commerce, or Budget, or Environment and Public Works) but would be tied with Democrats on others (like Finance, or Banking) because of retirements.

McConnell and Schumer do not cooperate nearly as well as did Daschle and Lott, meaning that negotiations on an organizing resolution might take some time, during which the Senate could not conduct any serious business.

The 50-50 scenario makes it theoretically possible that Congress could pass a Democratic budget resolution, which would make it possible to move a large package of revenue and entitlement spending through Congress using the “budget reconciliation” technique that is exempt from Senate filibuster. But that budget blueprint, including recommended deficit, tax receipt, and spending levels by category, would have to have the unanimous support of all 50 Democratic Senators, from Bernie Sanders (I-VT) and Elizabeth Warren (D-MA) on the left to Joe Manchin (D-WV) on the right. (As well in the House, where Democrats may only have a five- or six-seat safety margin next year, which is not as close as it sounds.)


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