With a split Senate, Democrats find themselves suddenly in control

Partisan gridlock is nothing new in Washington, D.C., but as the 117th Congress gets underway this week, the Senate will face an unusual — but not unprecedented — challenge to passing legislation.

This year, because of the outcome of the Senate races in Georgia, we have an even split among Republicans and Democrats within the U.S. Senate, with Vice President-elect Kamala Harris casting any deciding votes.

One of the major questions that need to be answered in this Congress is if the Democrats will abolish the legislative filibuster, enabling them to pass bills with 51 votes instead of the 60 votes traditionally required in the Senate. While this option is very appealing to many Democrats and progressives, it is opposed by some moderate Democrats like Sen. Joe Manchin, who has said previously that he would not support its removal. The Biden-Harris administration has not taken a formal stance on the legislative filibuster either, but the president-elect’s long history in the Senate and more moderate political leanings suggest he is less likely to support it.

Without the removal of the legislative filibuster, the primary avenue for Democrats to effect policy change would be through the reconciliation process. This is a process where Congress changes existing laws to conform tax and spending levels to the levels set in a budget resolution. The reconciliation process was used in recent years by Congressional Democrats in the passage of the Affordable Care Act and by the GOP in their attempts to repeal the ACA and in their most recent tax bill.

If Democrats can directly tie any pieces of legislation to the nation’s budget, they would be able to use reconciliation to help secure its passage. For example, it would be much easier for Democrats to pass a new COVID stimulus package with their slight majority and without the legislative filibuster through reconciliation. However, it would be much harder to pass legislation without direct budgetary implications, such as the John Lewis Voting Rights Advancement Act or the Equality Act, which would likely still require 60 votes for passage.

The 50-50 split with Vice President-elect Harris as tie breaker will also mean that the administration will likely have a much easier time getting all of their cabinet nominees confirmed. As a result, nominees like Xavier Becerra, who President-elect Biden has named as his Secretary of Health and Human Services, but who faces stiff opposition from Senate Republicans due to his previous roles, now have a much clearer path to confirmation.

Perhaps even more importantly, Democratic control of the Senate means that the administration will also likely face much less resistance with the confirmation of Supreme Court justices and federal judges. It’s currently unclear if there will be an opening on the Supreme Court over the next four years at this time, but with some justices reaching advanced ages, it’s not out of the realm of possibilities.

The last time there was a 50-50 split in the Senate — and the only time in modern U.S. history — was 2001, when Vice President Dick Cheney presided over an evenly divided Senate after the contentious 2000 elections. With the very real possibility of intractable gridlock looming, then Senate Majority Leader Trent Lott, R-Miss., and Senate Minority Leader Tom Daschle, D-S.D., struck a deal that would split committee memberships evenly between the two parties. In addition, a mechanism was provided to allow deadlocked bills to leave committee and be considered by the full Senate.

The AIDS United Policy Team will be monitoring the 117th Congress and will continue to provide updates throughout this Congressional session. Subscribe to our policy update and stay tuned for more.