The Senate Power-Sharing Agreement for the 117th Congress

The 2020 elections and the ensuing Georgia runoffs for the last two U.S. senate seats resulted in a Senate evenly split between 50 Democrats (including 2 Independents who caucus with Democrats) and 50 Republicans, with Vice President Kamala Harris casting any necessary tie-breaking votes. In light of the split, Democratic leader Chuck Schumer (D-N.Y.) and Republican leader Mitch McConnell (R-Ky.) have reached a power-sharing agreement on the organization of the Senate and certain procedures for the 117th Congress. This Holland & Knight alert reviews the contexts of that agreement and what it could mean for clients and the legislative outlook for the remainder of the Congress.

The Power-Sharing Agreement

On Feb. 3, 2021, Majority Leader Schumer introduced Senate Resolution 27, which he negotiated with Minority Leader McConnell and will govern certain procedures, along with the Senate's standing rules, precedents and committee rules. The resolution was adopted by unanimous consent. The agreement covers key aspects of committee ratios and budgets, the process for discharging measures or matters in the event of a subcommittee or committee tie vote, and certain floor procedures. The agreement is based in large part on the power-sharing agreement reached by then-Democratic leader Tom Daschle (D-S.D.) and then-Republican leader Trent Lott (R-Miss.) following the November 2000 elections that resulted in a 50-50 Senate split during the 107th Congress.

Committee Ratios and Budgets

Committees will be composed equally of Democrats and Republicans, with equal budgets and office space.

Discharge from Subcommittee or Committee

Should legislation or an Executive Calendar item result in a tie vote in a subcommittee, the committee chair may discharge the matter and put in on the full committee's agenda. Should a measure or matter result in a tie vote at the full committee level, the committee chair is required to transmit a notice of a tie vote to the Secretary of the Senate. Once notice is transmitted, either Schumer or McConnell, after consulting with the Chair and Ranking Member of the committee, can make a motion to discharge the measure or matter. Debate on the measure or matter is limited to four hours, equally divided, without other motions, points of order or amendments. If the measure or matter is discharged, it is immediately placed on the calendar.

Floor Procedure

The agreement includes a "sense of the Senate" that the leaders "shall seek to attain an equal balance of interest of the two parties" in scheduling and debating business, and that a motion to proceed continues to be considered the prerogative of the Majority Leader, while recognizing that the Standing Rules do not prohibit any other senator from moving to proceed on an item. It also prohibits the filing of cloture motions during the first 12 hours of Senate debate. Finally, the agreement made no changes to the Senate's cloture rules nor ruled out future changes, despite McConnell's efforts to secure the latter.

Termination

The agreement also makes clear that the committee ratios will remain in effect until a party attains the majority of senators, whether it be by retirement, death or a senator switching parties, as occurred in 2001, when Sen. Jim Jeffords (I-Vt.) left the Republican Party to become an Independent, caucusing with Senate Democrats. In this event, the wider provisions of the agreement would cease to have effect.

Effect on Senate Business for the 117th Congress

While the numbers are even, Democrats have control of the calendar on the floor and in committees. More than anything, this allows them to push their message and emphasize their priorities on both legislation and congressional oversight and investigations. From a legislative perspective, any one member can wield considerable power, particularly at the committee level, both on the Democratic side and on the Republican side. This means committee chairs have a strong incentive to work with members across the aisle to develop legislation with broad support. Without that, they could find themselves held hostage by a single strong-willed member of their own party.

That said, given the tight margin in the House, it's far from certain that legislation with bipartisan support could make it to President Joe Biden's desk. The compromises necessary to achieve that are likely to alienate more progressive members of the House Democratic Caucus, and there is little indication that anything drafted by a Democratic senator will receive significant support from House Republicans. Once Democratic leadership has finished with budget reconciliation, that dynamic is likely to make future legislation even more difficult. (See Holland & Knight's previous alert, "Congress Passes Budget Resolution, Begins Reconciliation Process," Feb. 8, 2021.

This is why the most significant power the Democrats may hold is the ability to talk about their priorities and advance it through congressional oversight, executive action and other measures not requiring bipartisan support. Legislation outside of reconciliation will be very difficult. Must-pass legislation such as the National Defense Authorization Act are likely to be loaded with as many provisions as they can bear. If congressional Democrats can use their pulpit to generate public interest and support for their priorities, it's possible that legislation can advance in regular order. However, those with an interest in legislative action should not assume gridlock. Although opportunities may be rare, when they arrive it will be crucial to have laid the groundwork for inclusion in advance.

For more information or questions about a specific legislative action important to your organization, contact the authors or another member of Holland & Knight's Public Policy & Regulation Group.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.