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Senators Mull Kerry Scenarios

The possibility of a John Kerry victory in November already has some aides and Members nervously eyeing the possibility that the early days of a new administration could be more chaotic than even the 106th Congress, when the Senate’s majority flipped twice within five months.

If a Kerry triumph provided an extra boost to Democratic chances of reclaiming the Senate, a net one-seat gain in the chamber would mean Vice President John Edwards could provide the 51st and tie-breaking vote for the purposes of organizing the chamber.

But under that very scenario, a whole series of twists and turns would likely take place, not the least of which is that the Senate majority could flip back and forth while what still seems likely to be a GOP-controlled House provides the aggressive opposition.

Unless Democrats take over the Senate with a clear and convincing majority of at least 52 seats — a feat most political prognosticators say is unlikely — the fight over selecting Kerry’s replacement in the Bay State could leave the Senate in a state of paralysis.

Of course, if President Bush wins re-election and Republicans retain control of the chamber, such talk would be rendered moot. Then again, even if Bush wins re-election, the Senate could still end up at 50-50, setting off another bitter bout of reorganizing similar to the weekslong negotiations after the 2000 elections left the chamber deadlocked.

“You have to deal with a treacherous minefield,” said Sen. Trent Lott (R-Miss.), who dealt with his own minefield as then-Majority Leader in the early days of the 106th Congress. That was followed a few months later by another tempestuous round of reorganization after Sen. Jim Jeffords (I-Vt.) left the GOP and gave Democrats the majority.

“I’ve given up trying to figure out these situations,” said Sen. Patrick Leahy (D-Vt.), who went from being Judiciary chairman to ranking member and back to chairman in a six-month span in 2001.

A similar back-and-forth rotation early next year could leave Leahy out of power when it comes to overseeing hearings for a hypothetical President Kerry’s nomination for attorney general, but back in charge as chairman if a Supreme Court vacancy occurred later in the summer of 2005.

The plot lines are varied, and most Senators shied away from openly discussing such hypothetical scenarios, particularly ones in which their party loses the White House or the chamber’s majority. But the potential fallout from this fall’s elections could be felt in the chamber for months — and potentially years — to come.

The 50-49 Senate

With Bush’s standing in the polls remaining stagnant and a few GOP retirements, Senate Democrats have grown increasingly optimist about their chances of winning the majority on Nov. 2. While Senate Minority Leader Tom Daschle (D-S.D.) regularly proclaims that if the election were held today Democrats would end up with 52 seats, that result would require Democrats to essentially run the table this fall.

Perhaps a more realistic scenario for Democrats is an election resulting in a 50-50 split with Edwards breaking the tie, allowing for a loss of two among their five open seats in the South and a few pickups in open GOP seats in the West.

Such an outcome would quickly throw the chamber into turmoil, with all eyes turning to the Democratic-dominated Massachusetts state Legislature and Republican Gov. Mitt Romney. Under current law, Romney has the power to appoint a replacement for Kerry who would serve until the next federal election in 2006 —an appointee who would undoubtedly be a Republican, giving the GOP a 51-49 edge.

But the state Legislature has passed, by a veto-proof margin, a bill revoking Romney’s power to appoint Kerry’s successor and requiring a special election in the spring of 2005, 145 to 160 days after the vacancy occurs. Under that legislation Kerry’s seat would remain vacant until the special. Unless Romney or former Gov. Paul Celluci (R) were to run, Democrats believe their nominee would be the solid favorite, and several House Members are already jockeying to be in position to run.

Even if Kerry were to win the White House and resign his Senate seat the day after the election, it would still be mid-April before a special election would be held and his replacement sworn in.

So, after getting the Senate to 50-50 in November, Democrats would be faced with the prospect of being in the minority for at least the first 100 days of Kerry’s presidency — 50 Republicans, 49 Democrats.

And Republicans make no bones about it: if they have the majority, they will rule like a majority for however long they have it.

“My guess is, if you have the majority, you have the majority,” said Sen. Rick Santorum (Pa.), chairman of the Senate Republican Conference. “You play it straight, that’s the way you ought to.”

As Lott put it, “I’m sure Republicans would take advantage of whatever opportunity we had.”

Republicans would at first seek to negotiate a reorganization of the chamber giving them official majority status, but Democrats would undoubtedly be prepared to fight if it looked certain that a Democrat would claim Kerry’s seat, allowing them to claim the majority in the spring. “If anybody tries to take advantage of a temporary situation, they would run into partisan roadblocks,” said Sen. Dick Durbin (D-Ill.).

If the two sides couldn’t reach a deal on organizing a 50-49 chamber, then committees would continue to exist as they are currently constituted, with Republican majorities and no new appointments.

The Budget Committee, for example, currently has a 12-11 Republicans tilt, and without any reorganization the GOP would hold an 11-10 edge because of retirements. The Finance Committee, after retirements, would have at least a 10-7 edge for Republicans.

The GOP could actually try to ram through a budget-and-tax bill early in the spring, get it to conference with the House and send it to President Kerry before Democrats took over the chamber — although such an accomplishment would require an incredible amount of discipline not currently on display from either party in either chamber.

If they felt Republicans were over the top in their actions, Democrats would have several parliamentary tricks to turn to. On any day, it takes unanimous consent to allow committees to meet, and Minority Leader Tom Daschle (D-S.D.) could simply object, bringing legislative action at the committee level to a halt.

Unless the GOP moved a budget-and-tax bill under reconciliation, rendering moot the need to gain 60 votes to invoke cloture, Democrats could filibuster most bills brought to the floor. And, in the most extreme move they could take, Democrats would be able to block the bill to fund all committees, which are slated to lose their financing in mid-March 2005.

For a few odd weeks in January 2001, Democrats held the Senate majority because the 106th Congress was seated in early January while Bush and Vice President Cheney were not sworn in until Jan. 20. That left then-Vice President Al Gore as the tie-breaking vote for Democrats.

In those few weeks Democrats did run the chamber but, at Daschle’s behest, did not try to run roughshod over Republicans. Leahy chaired the nomination hearings for Attorney General John Ashcroft, who was approved by the committee and confirmed by the Senate.

If the Senate does go 50-49 with a Kerry administration, all of Kerry’s nominees would face approval from GOP-controlled committees. While some Republicans suggest that Cabinet-level appointees would not get knocked down, they acknowledged any early judicial nominees would face a high bar because of the current Congresses’ ongoing battles over would-be judges.

“I don’t think we’d engage in that sort of partisan activity with Cabinet choices,” Santorum said. “When it comes to judges, let me tell you: What’s good for the goose is good for the gander.”

50-50 Senate

Assuming a Massachusetts Democrat won the race to succeed Kerry and that victory deadlocked the chamber at 50-50, the most recent guiding precedent is the semi-obscure bill known to the few parliamentary experts on Capitol Hill as “S. Res. 8.”

That was the reorganization bill that Lott and Daschle reached agreement on in early January providing for committees to be evenly divided and evenly funded. The Majority Leader was given the power to pull any bill or nominee out of a committee if there were a tie vote.

Republican committee chairmen despised “S. Res. 8,” which some GOP Senators never forgave Lott for because they felt it seriously eroded their power.

In a 50-50 Senate next year, whichever party does not control the White House will almost certainly point to the 2001 framework in organizing the chamber. But the party in power will definitely try to get a better deal, which could set off an acrimonious set of negotiations.

“We would have to deal with our organizing dance,” said Sen. Jon Corzine (D-N.J.), chairman of the Democratic Senatorial Campaign Committee.

Even after that dance were complete, however, a 50-50 Senate would be a precarious place for Kerry to navigate — and without question each side would begin to woo the other’s moderates to switch parties.

The possibility that Senators could be tapped for Cabinet appointments is another factor that could add to the chaos and, in a chamber filled with lawmakers in their 70s and 80s, all eyes would be on the health of any Senator who had even a nagging cough this coming winter.