1. How many times has this happened in US history?
In 1881 the Senate remained evenly divided for much of its two-year session. In 1954 it happened again – because of the death of a senator – but the even separation lasted only a few months. And in 2001 the Senate was split 50-50 from January to June.
2. Who heads the Senate if neither party has a majority?
The party that holds the vice-presidency. The constitution makes the Vice President President of the Senate, who is authorized to cast the decisive vote in the event of a tie.
For example, in 2001, the Democrats were in control at the beginning of the few days Al Gore was vice president. When Richard B. Cheney became Vice President, Republicans took control.
This year a 50:50 split would put the Democrats in control, with Kamala D. Harris able to cast the decisive vote as Vice President.
3. What about the party that doesn’t control the Vice Presidency? Is it just excluded?
Twice in the past – in 1881 and 2001 – the two parties have reached agreements that have allowed for some power-sharing. As a result, the party without power had more influence than a minority party normally would.
In 2001, for example, the parties agreed to divide committee memberships evenly – instead of overloading them with members of the majority party as usual. They also changed the rules so that if a committee stuck to a bill, the bill could still be put to a vote in the Senate.
Trent Lott (Miss.) – then the top Republican in the Senate – worked this deal with the then Democratic leader Tom Daschle (SD). In an interview on Tuesday, Lott said he wanted to avoid a deadlock by giving the Democrats greater leverage.
“I could have been a horseback and said,” We have the majority, the hell with you, “said Lott.” And we would have been at war every day. “
That deal lasted about six months before the Democrats persuaded Republican Senator Jim Jeffords (Vt.) To switch to their caucus. Then the Democrats took control with a majority of 51-49.
4. Could such a compromise take place again in 2021?
It is possible. Neither Republicans nor Democrats have elaborated on how they would deal with a 50:50 split.
Some of the staff who helped Daschle and Lott draft their power-sharing agreement are still working for the current Senate leaders, Mitch McConnell (R-Ky.) And Charles E. Schumer (DN.Y.).
Ahead of the 2016 election, when there was a possibility of another 50:50 split, McConnell told reporters he would try to use the 2001 deal as a model.
“I think if we landed 50-50 we would just repeat what we did,” he said.
But the Senate has changed a lot since 2001, is highly polarized and less prone to bipartisan collaboration.
“Tom Daschle and I talked more in a day than Mitch McConnell and Chuck Schumer did in a month on Sundays,” said Lott.
For example, this week some Republican senators say they will object to the vote count for President-elect Joe Biden. This makes one of the most basic bipartisan functions of Congress a place for President Trump’s unsubstantiated allegations of electoral fraud.
After that – and after two elections in Georgia that resulted in hundreds of millions of dollars in advertising spending – would the Democrats be ready to return their newfound power to the Republicans?
5. If the Democrats have 51 votes, what could they pass?
With 51 votes, the Democrats were able to confirm Biden’s nominations for cabinet positions, for federal courts and – if open – for a seat on the US Supreme Court.
You could also use the legislative mechanism known as “reconciliation” to pass some laws when they relate to budgets or expenses. This mechanism, through which the Democrats passed health care reform in 2009 and Republicans tried to overturn it in 2017, allows the Senate to pass laws with just 51 votes.
However, it is limited and cannot be used to pass laws that are not budget related. This type of legislation is still subject to the filibuster rules, which require 60 votes to be passed.
The Senate could theoretically change the rule that sets this threshold of 60 votes. But that kind of change seems unlikely: it would require the support of every Democrat, and at least one – Joe Manchin III (W.Va.) – has said he will not support it.