Even Steven: How would a 50-50 Senate operate?

With control of the Presidency and the House seemingly headed towards victories for Hillary Clinton and the Republicans, respectively, the main undecided question appears to be whether Republicans can hang on the U.S. Senate.  However, what if the nine close Senate races give neither party control, and the Senate is deadlocked 50-50? Well, it happened not that long ago and I was there.

Somehow this brief period of forced bipartisanship has been overlooked amid the bitterness around the crazy Bush-Gore election and eventual Supreme Court decision.  But after a 50-50 Senate emerged from the 2000 Senate election cycle, the parties’ leaders, Republican Trent Lott and Democrat Tom Daschle, agreed to a unique power-sharing agreement that actually led to a reasonably productive Senate early in 2001.  Lott and Daschle agreed to split each committee roster evenly and divide staff resources in half, while Republicans technically retained the chairmanships and the ability to convene hearings and markups. Lott was given the power to proceed to legislation that had received a tie vote in a committee.

{mosads}To be clear, this Senate was a far cry from the intense partisanship we have witnessed over the past decade. The chamber included at least eight members who would either switch parties during their career (Sens. Ben Nighthorse Campbell, Lincoln Chafee, Jim Jeffords, Arlen Specter, Richard Shelby), work in the opposing party’s administration (Chuck Hagel), or campaign actively against their party’s presidential nominee (Joe Lieberman, Zell Miller). And the roster included many more Senators who routinely broke party lines including Sen. Max Baucus, John Breaux, Dick Lugar, Olympia Snowe, Ted Stevens, George Voinovich and John Warner.

So the Lott-Daschle power-sharing agreement did not seem a surrender to the other party the way either party’s base might portray it now. It may be hard to return mentally to the pre-9/11, post dot-com economic era, but the main legislative priorities of the incoming Bush Administration were modest. Republicans found a small handful of Democratic votes to ‘return’ the government surplus to taxpayers in the 2001 reconciliation bill.  The Congress passed what was a then a bipartisan “No Child Left Behind” education bill, and the Senate confirmed numerous nominees including controversial appointments of John Ashcroft as Attorney General and Ted Olson as Solicitor General, a decade before Democrats embraced him for same-sex marriage advocacy. Majority Leader Lott was also forced to hold a lengthy debate on the McCain-Feingold campaign financed bill and was able to move a sweeping bankruptcy reform bill over the objections of then law professor Elizabeth Warren.

Of course, the power-sharing agreement only survived for five months until liberal Republican Jeffords announced he was leaving the Republican Party on May 24, 2001, the day after the Bush tax cuts passed the Congress.  With a 51st vote in hand, Daschle became Majority Leader for the remainder of the 107th Congress, a title he lost in 2003 with the Republicans recapturing the majority.

The 2001 agreement in general should serve as a good template for how a 2017 50-50 Senate should operate. However, a Republican leader needs to address ahead of time several procedural issues:

• Obtain a commitment from the Democratic leader not to change the Senate’s rules to forbid a filibuster on a Supreme Court nomination. The decision by Majority Leader Reid to change unilaterally the Senate’s rules for lower court judges requires a commitment that further erosion of the rules cannot occur in a 50-50 environment.
• The Minority Leader will always have an opportunity to offer amendments to bills before the Majority Leader ‘fills the tree’ to block amendments.  Majority Leader McConnell has made great strides this Congress in returning the Senate to a deliberative body and should ward against a return to the 2007-2013 era of limited floor action.
• Congressional Review Act challenges will be in order.  While it seems unlikely that a President Clinton would sign a CRA challenge to a new regulation issues in the dying throes of the Obama Administration, Congress should retain its authority to attack lame duck regulations.
• The 50-50 deal remains in place until one party captures a 51st vote. Obtaining an actual majority by an appointment, special election or party defection should provide either party with the right to return to the normal majority-minority tradition of the Senate. However, should a seat become briefly open due to a death, incapacitation, or other short-term vacancy, the 50-50 arrangement should remain in place.

In an era of intense partisanship and 24/7 politics, the idea of a power-sharing agreement in the Senate may seem nearly impossible to implement. However, if the voters choose a tie, it will be incumbent on Majority Leader Mitch McConnell and soon-to-be-Leader Chuck Schumer to prove that cooperation is not only possible, it is necessary.

C. Stewart Verdery, Jr., is Founder of Monument Policy Group, a public policy and strategic communications firm. He served as General Counsel to U.S. Senate Assistant Majority Leader Don Nickles (R-Okla.) from 1998-2002.

The views expressed by authors are their own and not the views of The Hill.