Leahy recovering from hip replacement surgery

82-year-old Vermont Democrat, who suffered a fall at his home, is a critical vote in the 50-50 Senate

Sen. Patrick J. Leahy, D-Vt., is the longest-serving sitting senator and chairman of the Appropriations Committee. He will retire at the end of the 117th Congress. (Tom Williams/CQ Roll Call file photo)
Sen. Patrick J. Leahy, D-Vt., is the longest-serving sitting senator and chairman of the Appropriations Committee. He will retire at the end of the 117th Congress. (Tom Williams/CQ Roll Call file photo)
Posted June 30, 2022 at 3:13pm, Updated at 9:47pm

A health scare showed Democrats Thursday how hard it may be to pass a partisan tax and spending package without any Republican support in an evenly divided Senate.

Appropriations Chairman Patrick J. Leahy broke his hip after taking a fall in his McLean, Va., home Wednesday night and underwent hip replacement surgery Thursday. The 82-year-old Vermont Democrat was "comfortably recovering" at a Washington area hospital, his office said in a statement Thursday night.

“He is expected to begin a physical therapy regimen after sufficient healing that will allow Patrick and Marcelle to begin taking their daily long walks together again," the statement read, referring to Leahy's wife. 

It wasn't immediately clear when Leahy would be able to return to the Capitol for votes. A spokesman said Thursday night it was too soon to say since he was just out of surgery, and "especially since we're still in recess for a while."

Senators don't return to Washington for votes until July 11. 

According to the Mount Sinai Hospital System website, hospital stays after hip replacement surgery typically last for three to five days, potentially followed up by a "short stay" in a rehabilitation facility. 

"As soon as the first day after surgery, you will be asked to start moving and walking around with a walker, crutches, or a cane," the Mount Sinai site says. "You will need physical therapy to strengthen your new joint for up to several weeks after your operation."

A separate post on the Johns Hopkins Medicine website says "most" patients can start walking and go home the day of the surgery, with a possible need for a cane or walker to get around in the aftermath. "If you have a desk job with minimal activity, you can return to work in about two weeks," the Hopkins site says.

The surgery, while successful, had threatened to sideline Leahy for weeks, just as momentum appeared to be building to salvage a downsized version of the “Build Back Better” plan that stalled last year. 

With no Republican support for the measure, Democrats need every single vote from their members to pass the measure using the budget reconciliation process, which allows for a simple majority instead of 60 votes for passage.

The informal deadline for wrapping up the budget package is the August recess, since the fiscal 2022 budget resolution governing the reconciliation bill expires Sept. 30 and lawmakers are going to be consumed with funding the government after Labor Day.

The Senate is scheduled to depart for its summer recess on Aug. 5. But the House, which will need to pass whatever version the Senate can agree to, has an even earlier start-date for its recess, departing after July 29.

Senatorial tradition

While it's not yet clear how much time Leahy will need to fully recover, the Senate has a long history of accommodating disabled members when critical votes are needed.

In May 1985, former Sen. Pete Wilson, a California Republican, was brought by ambulance to the Capitol from Bethesda Naval Medical Center one night to vote on a GOP-drafted, deficit-cutting budget blueprint that couldn’t be adopted without his support.

Wilson had undergone emergency surgery for a ruptured appendix and was expected to be absent for as long as 10 days. But he volunteered to leave his hospital bed to vote on the Senate floor when Senate GOP leader Bob Dole determined the Republican-backed budget would otherwise be defeated.

Wilson was wheeled into the floor at 1:30 a.m. "wearing a brown bathrobe," according to media reports at the time. The budget amendment was adopted on a 50-49 vote, with then-Vice President George Bush breaking the tie. After further negotiations with the Democratic-controlled House, a final budget blueprint with reconciliation instructions was adopted, laying the groundwork for enactment of a major deficit reduction law the following year.

Press accounts compared Wilson's dramatic vote to that of Iowa Republican James Wilson Grimes in May 1868, who was too ill to walk but was carried into the chamber to cast a vote against the conviction of President Andrew Johnson in his impeachment trial.

More recently, in December 2009 a frail former Sen. Robert C. Byrd, then 92, was wheeled onto the Senate floor to vote on what would become President Barack Obama's health care overhaul law and a measure to increase the federal debt limit after spending weeks in a hospital earlier that year for a staph infection. Byrd died the following year.

Like Leahy, Byrd was president pro tempore of the Senate at the time, placing him third in line for the presidency. He was routinely ferried to the Capitol from his McLean home by Capitol Police. 

Byrd had also been Appropriations chairman, though he'd given up that post early in 2009 on account of ill health.

Vote pairing

Even if Leahy is able to vote by late July, the reconciliation process entails a lengthy “vote-a-rama” on the Senate floor that can stretch late into the night. That cumbersome series of votes could prove to be an endurance test for someone still recovering from hip surgery.

One option for helping Leahy through the process could be an informal Senate practice known as “pairing,” in which a senator on one side of an issue agrees to abstain from a vote as a courtesy when a senator from the opposite side is unable to vote.

A “pairing” occurred as recently as February, when Sen. Mike Rounds, R-S.D., changed his vote on confirming Food and Drug Administration Commissioner Robert Califf to "present" in order to offset the absence of New Mexico Democrat Ben Ray Luján, who had suffered a stroke. 

And in 2018, Sen. Lisa Murkowski, R-Alaska, who was the only Republican opposed to the confirmation of Supreme Court Justice Brett M. Kavanaugh, agreed to vote “present” to offset the absence of Sen. Steve Daines, R-Mont., who was attending his daughter’s wedding.

It's not clear Republicans would extend Democrats such senatorial courtesy when it comes to the budget reconciliation bill, which is a top legislative priority for Democrats and President Joe Biden in advance of what's likely to be a brutal set of midterm elections in November.

Reconciliation, nominations

The setback comes just as Democrats were thought to be making headway on a revised reconciliation package that includes new measures to curb prescription drug prices and raise taxes to help reduce deficits.  Democrats reached an agreement this week on drug pricing. 

And several Biden nominees that have encountered GOP opposition could face lengthier delays in getting confirmed if Leahy can't make it to the Capitol.

In addition to three tie-breaking budget votes that Vice President Kamala Harris has had to cast since taking office, she's broken 20 ties during votes on Biden nominees, including six in May 2022 alone, according to Senate records.

In June, Harris would have been the tie-breaking vote to confirm Lisa M. Gomez as an assistant secretary of Labor, heading up the Employee Benefits Security Administration. But Harris was in Los Angeles attending the Summit of the Americas, so Majority Leader Charles E. Schumer, D-N.Y., flipped his vote to "no" in a procedural move allowing him to bring the matter up again for consideration.

Other nominees facing GOP blockades include Biden's pick to head the Bureau of Alcohol, Tobacco, Firearms and Explosives, Steven M. Dettelbach, and Nancy G. Abudu to be a U.S. Circuit Judge for the Eleventh Circuit. The Senate Judiciary Committee deadlocked on both nominees with 11-11 party line votes.

The Senate is currently scheduled vote on cloture on Dettelbach on July 11, the chamber's first day back after a two-week recess. Under Senate rules, cloture on executive and judicial nominations requires only a simple majority.

Appropriations markups

Leahy’s prolonged absence could also complicate his plan for the Appropriations Committee to mark up its fiscal 2023 spending bills in July.

He said before the recess the panel would begin markups soon after the July Fourth recess despite the lack of a bipartisan agreement on overall discretionary spending levels. But unlike floor votes, which require a senator’s physical presence, committee votes can be conducted by proxy, so it’s possible for markups to proceed without Leahy in attendance.

However in order to report an appropriations bill out of committee, Senate panel members must vote in person. So if Leahy can't attend markups, any bills that don't have bipartisan support on the evenly divided panel would need at least one Republican not to show up. That would preserve a tie vote, after which Democrats on the floor could vote to discharge the measure from committee, though they’d need a simple majority.

Leahy, who was first elected in 1974, is not running for reelection this fall.

Aidan Quigley, Lindsey McPherson and Niels Lesniewski contributed to this report.