Organizing the Senate
The Senate ended weeks of uncertainty yesterday when it approved an organizing resolution for the 117th Congress. The breakthrough came after Majority Leader Chuck Schumer, D-N.Y., and Minority Leader Mitch McConnell, R-Ky., announced that they had reached an agreement on how to share power in the evenly divided Senate. While Schumer replaced McConnell as Senate majority leader last month thanks to Vice President Kamala Harris’s tie-breaking vote, his fellow Democrats had not yet assumed control of the Senate’s committees or officially appointed its principal officers (i.e., the Secretary of State, Sergeant at Arms, Doorkeeper) – all of which are typically routine transitions whenever partisan control of the Senate changes hands. The Senate’s approval of an organizing resolution (S. Res. 27) cleared the way for subsequent passage of resolutions making majority committee assignments (S. Res. 28) and minority committee assignments (S. Res. 32). And it allowed senators to adopt a resolution formally designating Sonceria Ann Berry as Secretary of the Senate (S. Res. 29).
Hurdles to Sharing Power
While it took Schumer and McConnell weeks to negotiate their power-sharing agreement, its provisions (as codified in S. Res. 27) are essentially identical to an agreement (S. Res. 8) negotiated by former Majority Leader Trent Lott, R-Miss., and former Minority Leader Tom Daschle, D-S.D., in 2001 when the Senate was last evenly divided. Yet even with the Lott-Daschle blueprint to follow, Schumer and McConnell struggled to reach an agreement. Their talks stalled, in part, due to McConnell’s effort to force Democrats to pre-commit to keeping the filibuster in place in exchange for Republicans’ cooperation on organizing the Senate. The delay in the Senate’s business threatened President Joe Biden’s agenda. But Democrats nevertheless rejected McConnell’s gambit as setting a dangerous precedent. The standoff ended when Joe Manchin, D-W.Va., and Krysten Sinema, D-Ariz., released public statements reiterating their support for the filibuster. McConnell seized on Manchin’s and Sinema’s statements as evidence that he had successfully preserved the filibuster by taking a hard line in his negotiations with Schumer and subsequently dropped his demands that Democrats pre-commit to follow the Senate’s rules in the 117th Congress.
The Schumer-McConnell Agreement
Among its provisions, S. Res. 27 stipulates that all of the Senate’s committees “shall be composed equally of members of both parties” in the 117th Congress as long as the Senate is evenly divided. It stipulates that committee budgets and office space for committee staff “shall likewise be equal.” The resolution also revives a procedure from the earlier Lott-Daschle agreement to prevent the minority party from using its equal complement of members on a subcommittee to unilaterally stall a bill or nominee, thereby preventing its consideration by the full committee. S. Res. 27 does so by authorizing the chairman of each committee to “discharge a subcommittee of any Legislative or Executive Calendar item which has not been reported because of a tie vote and place it on the full committee’s agenda.” In a notable omission from its equal treatment of the majority and minority parties, the resolution does not give a committee’s ranking minority member the same power to discharge a subcommittee of further consideration of a bill or nominee on which its members have deadlocked.
S. Res. 27 also borrows a provision from S. Res. 8 to ensure that an even split on a bill or nominee at the full committee level will not prevent the full Senate taking it up. But unlike the previous provision, the resolution empowers both the majority leader and the minority leader to take action when that happens. Specifically, the resolution modifies the Senate’s current discharge procedure to expedite it in specific circumstances. If a committee deadlocks on a vote to report a bill or nominee either party’s leader may move to discharge the “measure or matter” on which the tie vote occurred in committee. While the Senate’s current rules and practices already authorize senators to discharge committees of further consideration of bills and nominees - and not just on occasions when committees are deadlocked - the resolution expedites that process by limiting floor debate on a discharge motion to four hours “equally divided, with no other motions, points of order, or amendments in order.”
S. Res. 27 also bars the majority leader from using cloture preemptively to speed consideration of legislation regardless of time spent on the floor. The resolution stipulates that it is not in order “for any cloture motion to be presented on an amendable item during its first 12 hours of Senate debate.” (The provision does not apply to executive branch and judicial nominations.)
The resolution also revives aspirational language in S. Res. 8 stating that “both Leaders shall seek to attain an equal balance of the interests of the two parties when scheduling and debating legislative and executive business generally.” And in a significant departure from the rhetoric of recent majority leaders, the resolution acknowledges explicitly that all senators may make motions to proceed to legislation and nominations under the Senate’s rules.
How the Senate Organizes Itself
As the details of S. Res. 27 suggests, “organizing the Senate” refers primarily to the process by which the Senate determines the overall number of member slots for each committee in a given Congress and appoints the specific senators to fill them. “Organizing the Senate” also refers to the majority’s decision on who to tap to serve as the Senate’s principal officers. However, neither then Constitution nor the Senate’s Standing Rules spells out in detail how senators make these decisions. The process is instead governed by the two political parties internally and in negotiations with each other.
The Constitution
The Constitution does not provide a lot of detail on how members of the House and Senate organize themselves to conduct business. It sets membership criteria for the House (Article I, section 2, clause 2) and the Senate (Article I, section 3, clause 3). It acknowledges that a “Speaker” presides over the House (Article I, section 2, clause 5) and stipulates that the Vice President presides over the Senate (Article I, section 3, clause 4). It defines Congress’s powers and responsibilities (e.g., Article I, section 8). And it specifies how often, and in what manner, members of the House (Article I, section 2, clause 1) and Senate (Article I, section 3, clauses 1 and 2) are selected.
Yet the Constitution does not address the two central institutions that today’s senators use to make the Senate work (or not work) - congressional committees and party leadership. The Constitution alludes to the principal officers of the House (Article I, section 2, clause 5) and Senate (Article I, section 3, clause 5), but only in passing. And it does not specify how representatives and senators choose them. The Constitution instead gives the House and Senate the power to determine their own rules of proceeding (Article I, section 5, clause 2).
The Senate’s Standing Rules
The Senate has adopted forty-four rules to govern its proceedings using its constitutional grant of power under Article I, section 5, clause 2. Unlike the House – which adopts its rules at the beginning of every two-year congress – the Senate’s Standing Rules do not expire. They instead remain in effect from one congress to the next (i.e., standing rules). This is because the Senate is a continuing body. Only one third of the total number of senators stand for election every two years (in contrast to all 435 House members).
The permanent nature of the Senate’s rules contributed to the uncertainty surrounding committee deliberations at the beginning of the 117th Congress. Rule XXV empowers each committee to conduct business within its jurisdiction in perpetuity, or until “their successors are appointed.” And Rule XXIV regulates the committee appointment process, requiring the full Senate to approve committee members and chairmen by adopting a resolution. Provisions like these in the rules made it possible for Republicans to maintain control over the Senate’s committees until senators approved a series of resolutions that established new ratios of Democrats to Republicans on each panel and appointed majority and minority members to serve on them.