Balkinization: Functioning with a Short-Handed Senate

Functioning with a Short-Handed Senate

David Super

On June 30, Vermont Democratic Senator Patrick Leahy fell, broke his hip, and had immediate surgery. He is expected to make a full recovery but will miss time in the Senate. This weekend, Senate Majority Leader Chuck Schumer announced that he has COVID-19 and will self-isolate for a week. Earlier this year, New Mexico Democratic Senator Ben Ray Lujan missed time (after a stroke) as did North Dakota Republican Senator Kevin Cramer (after a gardening accident). With the Senate so closely divided, some have wondered what the absence of a senator can mean for its agenda.

The short answer is “not that much” – provided the absence is relatively short.

First, a great deal of the Senate’s work is not conducted through contested votes. Because most substantial measures require sixty votes, the emphasis is negotiating a bipartisan agreement. Without that, nothing will move even if the majority party is at full strength. With a deal, votes are typically fairly plentiful so one or a few absent senators will not matter.

Second, the Senate – very much unlike the House – has a long tradition of collegiality. It is a small place, full of repeat players with copious special needs. Few senators want to take a scorched earth approach to senators of the opposite party for fear that those tactics will be reciprocated. Thus, on any but the highest-profile votes, senators have commonly agreed to “pair” with an absent senator taking the opposite position. The senator who is present refrains from voting and announces that she or he would have voted one way and is a pair with the absent senator, who would have voted the other way. As grassroots advocates in both parties have become quicker to criticize senators for any departure from party orthodoxy, pairs have been difficult to achieve on high-profile votes but at still possible on more routine matters.

The two parties’ floor managers (typically but not always the majority and minority leaders) usually try to avoid forcing important votes at moments when a senator of the other party is unavailable if a small delay would solve the problem – and the floor leader of the absent senator’s own party has means of detailing any ill-considered attempt to do so.

Finally, a fair amount of the Senate’s schedule is devoted to running out this or that clock. For example, although nominations are no longer subject to filibuster, the minority party may still force a certain amount of debate on each one, consuming precious floor time and effectively constraining how many nominations the majority can move. Procedures for moving a reconciliation bill, too, guarantee opponents a debate of twenty hours. Even without permanent rules allowing debate, the “time agreements" under which routine bills come to the Senate floor commonly allow significant amounts of time for debate.

Because senators, even of the majority party, commonly resist sessions that start early, end late, or occur on days other than Tuesdays, Wednesdays, and Thursdays, finding enough session time to satisfy the debate mandates attached to various nominations and legislation can be challenging for the majority leader. During periods when Sen. Schumer lacks the votes to move anything controversial because of his own absence or those of one or more members of his party, he may nonetheless have his deputies convene the Senate and run down the clock on various pieces of pending business.

To accommodate senators’ preferences for long weekends back in their home states, the Senate commonly “stacks” many votes in a row, often on wholly unconnected matters, just before the Senate goes out or just after it returns to session. As long as Senator Schumer has all of his senators together for stacked votes every now and then, the Senate should be able to stumble along almost as it usually does. The limiting factors remain senators’ willingness to be in session and Republicans or holdout Democrats’ willingness to cut deals.

@DavidASuper1

Posted 5:04 PM by David Super [link]