While visions of sugar plums may dance in the heads of young people, it’s not hard to imagine what Mitch McConnell’s Christmas wish might be.  Senator Joe Manchin is a lifelong Democrat, he seems to be on the outs with large factions of his party with other Congressional Democrats angry about his decision not to support President Joe Biden’s Build Back Better legislation.

While there is no news to report on this front, given the slowdown in the Congressional calendar now that the holidays are fast approaching, it is interesting to game out a scenario where Joe Manchin either becomes an independent or a Republican.  Fortunately, we do not need to look back very far to see what happens should that occur.

It’s Happened Before

In 2001, the new President George W. Bush found himself with a 50/50 Senate – just like today.  At the time, Vice-President Dick Cheney was able to cast any tiebreaking votes making Republicans the acting majority – just like Vice-President Kamala Harris’ vote gives the Democrats control of the Senate today.  On June 20, 2021, Senator Jim Jeffords, a Republican from Vermont, announced he was switching parties and caucusing with the Democratic party.  With that one move, Democrats went from being in the minority to being the brand-new majority.  The Democrats kept that majority until Jim Talent of Missouri defeated acting Senator Jean Carnahan in a November 2002 special election, changing the Senate back to a 50/50 body with the Republican Vice-President’s ability to break a tie giving the Republicans back the majority.

If Senator Manchin was to do something similar, the  same scenario would play out with the parties holding opposite roles from 2001. This would have enormous consequences since the majority party controls the chairs of committees and subcommittees and controls the Floor agenda that determine what votes will be considered and whose nominations will be confirmed.

Organizing a Legislative Body

As we pointed out in February in our blog, Who Controls a 50-50 Senate, organizing legislative bodies is a complex thing.  The Senate is even more so, since it is the only legislative entity in the world that is an ongoing and perpetual body.  Since only one-third of the Senate is up for election every two years, there is always a two-thirds quorum of Senators.  This matters a great deal because it can result in some strange scenarios. 

In the House, once a general election occurs, the old Congress adjourns and the new Majority passes a rules package organizing the House, electing a Speaker, and nominating committee chairs.  The Senate does not pass new rules. Its current ones have been in effect since 1793, and so a separate resolution must be passed for Senate business to reflect the results of the most recent election.

The Senate sets itself up by passing an organizing resolution that determines, for instance, who will be the Committee chairs.  A resolution remains in place until it is superseded by a new one, regardless of the results of an intervening election.  In 2001, the lack of a new resolution because of the 50-50 split resulted in Democrats being the majority, but Republicans remaining as the Chairs of all the Committees. This did not change until Senators Trent Lott and Tom Daschel reached an agreement that allowed the Senate to pass a new resolution naming Democratic chairs.

This organizing resolution can be filibustered so the minority party has some leverage in organizing the Senate.  You might recall that Senator McConnell held up the organizing resolution in January 2021 until he had assurances that the Majority party would not try to kill the filibuster.  Once Senator Manchin and Kyrsten Sinema announcing their opposition to changing the filibuster, McConnell relented and allowed the Democrat’s organizational resolution to proceed.  Still, in normal times (whatever that means anymore), the minority party has an interest in negotiating their best agreement and then allowing it to pass. 

How It Could Go Down

So, if Senator Manchin was to change parties or becomes an independent who caucuses with Republicans, then Republicans would take control of the Senate by one vote.  Their first step, the one that establishes who is in the majority, would be the election of a new President Pro Tempore.  By tradition, this is the longest serving member of the Majority Party, and, under the Constitution, third in the line of presidential succession behind the Vice-President and the Speaker.  Under a new Republican Majority, this position would be held by Senator Grassley of Iowa.  The Senate would then pass a negotiated organizing resolution naming Committee Chairs and other matters of control  In 2001, the Senate:

…agreed to S. Res. 120, which readjusted the committee seat ratios to favor the majority party by one (with the exception of the Ethics Committee, which is always evenly divided). It also provided that no Senator would lose his or her seat on committees as a result of the change. Additionally, any agreements that Chairmen and Ranking Members had made concerning committee budgets and spaces were to remain in effect, unless the two committee leaders renegotiated them.”[1]

This would seem to be a model for the current Senate should Senator Manchin change parties.  Of course, partisan polarization is so high, it is not difficult to imagine a protracted negotiation driven by, ironically, Democratic threats to use the filibuster.  (One amusing aspect of a change in party control is how quickly and thoroughly, opinions on the filibuster change – no doubt, if the Democrats should suddenly find themselves in the minority, the filibuster will go back to being the greatest things since sliced bread.)

Another thing that would also be similar to 2001 is that the President’s party will continue to control the House of Representatives, meaning both parties either work together or even less legislative work that is currently happening will get done. .  The biggest change will be the inability of the Biden Administration to gain approval of nominees, particularly judicial ones, without compromising in advance with Senate Republicans.  Another difference?  Since both the House and Senate must pass identical reconciliation language in the budget resolution, moving major partisan legislation through reconciliation will be next to impossible. 

A Christmas Wish

Senator Manchin is trying to represent his constituents from West Virginia the way he thinks is best.  Republicans should expect that he will go on doing the same thing if they should suddenly find themselves in the majority.  No doubt, McConnell will have to sweeten the pot with promises of a Committee Chairmanship for Manchin.  But as Christmas wishes go, potential Republican chairs and leaders are hoping for a shiny new majority; Democrats, meanwhile, might want to be careful in their criticism of Joe Manchin, or run the risk of Santa filling their stockings with West Virginia coal.

[1] Strand, Mark and Timothy Lang. “Who is in Charge of a 50-50 Senate” https://www.congressionalinstitute.org/2021/02/05/whos-in-charge-in-a-50-50-senate/