Last updated: 11/12/2020
As of Wednesday morning, we have as much clarity on the status of the majority in the United States Senate for the 117th Congress as we’re going to have until January. Over the past few days, the Senate races in North Carolina and Alaska were called in favor of their Republican incumbents. That puts the current partisan count for the Senate at 50 Republicans to 48 Democrats (including the two Independents who caucus with the Democrats). That means that the majority hangs on the results of the two run-off races in Georgia.
As we’ve previously stated, the Georgia run-off date is January 5, potentially after the 117th Congress convenes. If the Senate convenes before the Georgia winners are certified, the partisan balance will actually be 51-48 in favor of the Republicans. While Senator David Perdue’s term will officially end at noon on January 3, Senator Kelly Loeffler will remain a senator until the winner of the special election is certified and that person is sworn into the Senate. That means that if the Senate convenes before the Georgia races are certified, Loeffler would be the 51st vote for the Republicans. If Loeffler and Perdue are both victorious on January 5, the Senate will be 52-48. If they both lose, it will be an evenly divided Senate.
In the 50-50 scenario, Democrats would have the ultimate tie-breaking vote after January 20, as the vice president serves as the president of the Senate and may break ties if he or she so chooses. Legislation needs a majority vote to pass. Thus, legislation fails if there is a tied vote. If the administration wants a vote to fail, then the vice president could simply choose not to cast the tie-breaking vote. This situation occurred once before in recent memory. Following the 2000 elections, the 107th Congress had an evenly divided Senate as Democrats had won a net of four seats to bring the ratio to even. For the first 17 days of that Congress, the Democrats held the majority while Vice President Al Gore remained in office. The Republicans took control with the inauguration of Vice President Dick Cheney.
For that Congress, the parties came to a historic agreement, where Republicans would serve as committee chairs after January 20, but the committees would all be evenly divided. Restrictions on cloture motions and floor amendments offered by party leaders were put into place. The agreement did not cover every aspect of Senate procedure, but it did represent nearly unprecedented bipartisan cooperation. The agreement allowed the Senate to function until June 6, 2001, when the Democrats took control of the majority when Vermont Senator Jim Jeffords switched parties from Republican to Independent and began to caucus with Democrats. Thus, Democrats had a working majority of 51-49. The partisan breakdown would remain the same for the remainder of the 107th Congress. In fact, this agreement worked so well that Vice President Cheney was only called on twice during the time the agreement was in place to break ties. They were both on amendments to the budget resolution in April of 2001. With today’s hyper-partisanship, it is hard to imagine that such an agreement could be made in the current political environment.
Once it becomes “apparent” that a new president has been elected, but before such an election is certified, a lot of behind the scenes work begins to ensure a smooth transition from one administration to the next. Despite past heated election seasons, this transition generally has gone smoothly. Much of it is coordinated by the General Services Administration (GSA)—a large federal bureaucratic agency that most people have either never heard of or rarely think about. Those who are familiar with the GSA may know the agency through its role in providing office space and supplies for the federal government. The agency also plays a key role in presidential transitions. The GSA has a roughly $6 million budget to help the incoming president’s team procure office space in Washington, D.C., and coordinates meetings between transition officials and current agency staff. It is in those meetings, referred to as “agency review,” where the new administration is brought up to speed on the inner workings of all federal agencies in preparation of when they take over at noon on January 20. There is no area where this is more important than in the national security space. The incoming president is given access to the president’s daily brief of potential threats to the United States, which is compiled by the intelligence community and is also shared with the president-elect’s national security team.
None of this can formally begin until the administrator of the GSA signs a “letter of ascertainment” indicating that it is apparent that a new president has been elected. To date, the current GSA administrator has not signed this letter. GSA Administrator Emily Murphy has cited the ongoing legal challenges filed by President Donald Trump’s campaign and the precedent from the disputed 2000 election in her defense of not signing such a letter. Following the 2000 elections, while legal challenges over recounts in Florida dragged on, the transition from the Clinton Administration to that of George W. Bush was delayed by a number of weeks. The 9/11 Commission would ultimately include the shortened transition period in their analysis of things that contributed to the inability to prevent the September 11 attacks. President Bill Clinton did, however, authorize classified intelligence briefing for then-Governor Bush two weeks before the acting GSA administrator signed the letter of ascertainment that year. It remains to be seen if President Trump will make the same accommodation for President-Elect Biden.