After the Georgia runoff elections held on Jan. 6, 2021, the Senate finds itself with 50 Democrats and 50 Republicans. Not a very common occurrence but not the first time its happened either. Previously there was a Republican majority, and the Republican leader Mitch McConnell was styled the majority leader and the Democrat leader Chuck Schumer was the minority leader. In recent days, the media has reversed these titles, implying that the Democrats are now the majority and the Republicans are the minority. Is this so?
In fact, there is neither a majority nor a minority. There are exactly the same number of Democrat senators as Republicans. (In fact, two senators are independents but for Senate organizational purposes they caucus and vote with the Democrats.) Thus it follows that McConnell and Schumer are leaders of their factions, but not majority or minority leaders. So why is the media calling a majority and a minority in the Senate?
The key to this issue is the Vice President. The Constitution is our guide here. It assigns to the Vice President the Presidency of the Senate with the authority to cast a vote in instances of a tie vote in that chamber. Despite the expansion of the office of the Vice President in recent decades as that office holder is assigned various tasks by the President it should be remembered that they are voluntarily assigned by the President with no statutory authority beyond the Presidential assignment and wish. The Presidency of the Senate is the only constitutional duty of the Vice President besides succeeding to the Presidency in the event that office becomes vacant.
The Vice President is a member of the executive branch of government, not the legislative branch. Of interest is what happened when Vice President-elect Lyndon B. Johnson attempted to do in a vain attempt to retain authority in the Senate. LBJ was Senate majority leader for eight years when he was elected Vice President as John F. Kennedy’s running mate in November 1960. LBJ, knowing full well the powerlessness of his new position tried to retain Senate authority. On January 3, 1961 he attended the Democratic caucus and indicated that he wished to remain its Chairman, a post ordinarily filled by the leader, in this case Mike Mansfield of Montana who was just elected to that position. The Democratic senators revolted and refused LBJ’s wish to remain Senate leader. He was told in no uncertain terms that he was no longer a member of the legislative branch and had no business in their caucus. (This is described in great detail by Robert Caro in the fourth volume of his biography of Johnson “The Passage of Power”). It can be inferred from these above cited events that truly, the Vice President is the Senate’s presiding officer and will vote on legislation when there is a tie. It seems to me that the Vice President has no role in the organization of the Senate and its manner of doing business. This is reserved to members of the Senate, the upper house of the legislative branch of government. Further involvement in the affairs of the Senate are impermissible interference by the executive branch of government and a serious breach of the Constitutional doctrine of separation of powers. If this analysis is correct and there is a split Senate, it follows that there is no majority and no minority. Leaders are leaders of their respective factions.
What is required under these circumstances is joint management of the Senate and its legislative process. Committee membership, chairmanship, legislative agendas, voting, and other activities will require a level of bipartisan cooperation that has not existed in recent years. This is an opportunity for the Senate and its members to rise to the occasion and demonstrate their statesmanship. If a tie-vote occurs, the Vice President will be there to cast a tie breaking vote.
Garry S. Sklar
Las Vegas, NV
January 20, 2021
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