How a House Divided Can Stand

Recent days have ushered in a period of questions for the future of America’s Congress in vastly different forms. Hours before the nation learned that the Capitol was overrun by marauding protesters, dual Democratic victories in the Senate runoff elections in Georgia produced the rare phenomenon of a Senate split 50-50.

While the Vice President’s role as President of the Senate gives Democrats the upper hand, how the upper house will practically function remains an open question.

Such a split has only occurred three times in the nation’s past: in 1881, 1954 and, for a short time, in 2001. During that most recent occurrence, even though Republicans then had the advantage of Vice President Dick Cheney as the 101st vote, Republican leader Trent Lott and his Democratic counterpart, Tom Daschle, worked out a power-sharing agreement that split committee appointments evenly and came very close to giving both parties an equal hand in running the chamber. Six months into the arrangement, Sen. Jim Jeffords of Vermont left the Republican Party and began caucusing with the Democrats, giving them a 51-member majority and in 2002 Republicans won the Senate back.

Hamodia spoke with Stewart Verdery, who served as General Counsel to U.S. Senate Assistant Majority Leader Don Nickles (R-Okla.) from 1998-2002, about how the 2001 deal worked and what arrangements seem possible to manage the same situation 20 years later, in a vastly more divided political environment. Having spent many years working in the Capitol and more recently as a lobbyist remaining closely connected to Congress’ function, his perspectives and insights on the violence that occurred there are shared here as well.

How did the power-sharing deal of 2001 come about? If Republicans then had Vice President Cheney as a tiebreaker, why was Sen. Trent Lott open to forging a power-sharing agreement rather than just seizing a majority?

It was a different era in a couple of ways. First, there were many more crossovers on votes from both parties. There were still some Southern Democrats who voted with Republicans on social issues and some old school northern Republicans who were more socially liberal and sometimes voted with Democrats. The parties weren’t nearly as lockstep and divided as they are now. GOP leadership could not always count on getting its whole caucus to vote the way they wanted them to and they needed a way to get everyone to agree on how the Senate would function.

Another factor was that there was still the filibuster for nominations in place. So to confirm judges and cabinet positions you needed 60 votes. That has since been ended. Between those two factors, there was a lot more dealing and trading that went on.

Lott was a centrist and wanted to be more magnanimous. He was focused on parochial home state issues for Mississippi, more than on real hot button Republican social issues which left more room for compromise. And he and Tom Daschle generally got along very well.

The way the Senate operates, without organizing resolutions, you can’t get started. So I think Lott decided it was better to cut a deal than to kind of go into protracted negotiations. He could have forced the party into power, just like Chuck Schumer could do now, but he would have needed all 50 of his colleagues to want to go that route.

This was also against the background of the Bush-Gore litigation. In some ways, I think Republicans were just happy to have won the presidency and they were willing to be a little generous when it came to controlling the Senate.

How much of a role did Vice President Cheney end up playing in the chamber itself?

Not a whole lot. There weren’t many votes that came down to a tiebreaker. That agreement only lasted for four months, until Senator [Jim] Jeffords switched parties and gave the Democrats a majority.

There were two big bills that moved through the floor during those six months. One was the Bush tax cuts, which was done through reconciliation, which only required 51 votes anyway. The other was the McCain-Feingold campaign finance bill, which was bipartisan.

How well did it work? Do you feel it’s a good model of how a divided Senate could function?

It was such a short period of time. It would probably be easier to judge if the deal lasted a full two-year session. Then we would have seen a lot more bills that had to be dealt with on the floor. For the short period of time it existed, I think it was a success.

The deal allowed committees do their work. It kept the Senate from descending into chaos, which is what would have happened with no deal. You wouldn’t have been able to confirm the new President’s nominees or hold hearings. Even non-controversial legislation needs a functioning Senate to move it through.

To what extent did the arrangement reduce partisanship?

It did, but it was kind of a temporary pause.

You also have to remember that it was a strange year for the Senate and for the government in general; 2001 started off with this bipartisan Senate. Then you had Jeffords switching parties and ending the deal. Three months later was 9/11 and, after that, there was a big bipartisan push in response to the attacks: including the New York spending bill, the border security bill, and the authorization of force against Afghanistan. Then you had the 2002 elections, which became very partisan, and the Republicans took back the Senate.

What about the present political landscape makes the arrangement that existed in 2001 unlikely now?

One reason is that they got rid of the filibuster for administration nominations. So, Senator Schumer will be able to pass Biden’s cabinet nominees without any Republican support as long as no Democrats defect. There isn’t the kind of pressing need for tradeoffs that existed before, where Republicans would have had leverage to say “We’ll vote for your nominees if you give us some legislative favors.”

Another difference is that the base of both parties are much more ideologically entrenched now. In 2000, there was a sprinkling of people across the ideological spectrum who influenced party thinking. Now, Democrats are much further left-leaning. Their base isn’t interested in moderate legislation you can compromise on; they want very sweeping legislation on labor issues, environment, and criminal justice. And Republicans have much more of a right-wing lean which makes it less likely for them to work with Democrats.

The big question will be if there is a centrist group of Democrats that are going to force Schumer to make some kind of deal. Will Democrats like Joe Manchin, Chris Coons, and Jon Tester say they’d rather work with a few Republicans, like Romney or Murkowski, to work out a power arrangement and say, we’re not going to let Chuck Schumer dictate everything just because he’s got 50-plus-one votes?

I think the moderates would like to go with the 2001 arrangement as a starting point. It has a precedent and it seems fair. If the moderate Democrats take that position, then Schumer will have to decide if he wants total control at the risk of a showdown with his colleagues. At the same time, he may get a lot of pressure from his left. The AOCs in the party will want to be as aggressive as possible and will not be interested in bipartisan deals.

Do you think that Democratic Senate moderates are willing to stand up to their party’s leadership to force some sort of power-sharing deal?

Manchin already, and a few others already, said they don’t want to get rid of the filibuster or to pack the Supreme Court. Those are signals that they don’t want to use maximum power, even if it was possible.

If I would be negotiating for the Republicans, I would seek a commitment from the Democrats that they will not move to eliminate the filibuster during this Congress, in exchange for an organizing resolution. Democrats are going to want to keep the filibuster open as an option if their agenda hits roadblocks, but if there is enough backing I think such a deal could work.

What kind of role do you envision Vice President-elect Harris playing in a 50-50 Senate?

I don’t expect her to be like living in the Capitol. She will be there to break ties and the administration might use her to do some lobbying and coordinating with Congress. She wasn’t in the Senate for long enough to build a lot of deep relationships, so I don’t see her playing a major role there when she has so many other responsibilities.

How aggressive do you think Democrats will be in terms of their legislative agenda? What limitations do they face from such a slim majority?

Their first big bill will be the reconciliation spending bill which they can pass with a simple majority. They can load that up with their priorities and hide all kinds of controversial things in it. So, I think they’ll be quite aggressive there and try to load it up with pretty aggressive provisions on tax, climate, entitlements, and some infrastructure spending.

Do you think that Sen. Schumer and his lieutenants really have appetite for radical changes like eliminating the filibuster or court packing, or that such issues are just campaign rhetoric?

I don’t think eliminating the filibuster is going to be a first recourse, but it could be an effective threat. My guess is that they will try to negotiate with Republicans on some of their priority issues and see how far that gets them.

You could imagine an immigration bill that might get a couple of Republican votes, but it’s hard to imagine one that would get 60 votes in the chamber. That would leave them with a decision of either watering it down to get more Republicans to sign on or sticking with a bill the far left supports and threatening to eliminate the filibuster to get it through.

The court is its own kind of beast. There is a solid conservative majority there, but I think the discussion on court packing will be influenced a lot by what kinds of decisions the court hands down. Avoiding stoking harsh reactions to decisions is definitely something that Justice Roberts always seemed concerned with, but he’s not the fulcrum of the court anymore.

To what extent do you think eliminating the filibuster would change the nature of the Senate?

It would change the institution immensely. For over 200 years, in order to authorize consequential laws, you needed to have consensus. If that’s not the case, everything is subject to the ebb and flow of who is in power. One Congress will pass laws and the next one will repeal them.

Anything passed on a party line vote tends to become controversial, even it wasn’t before. Obamacare had a lot of aspects that really were not that controversial until they got passed on a party line vote. Those types of bills don’t tend to stick.

If you get rid of the filibuster, it would basically make the Senate another version of the House, just with different proportions.

The violence that occurred in the Capitol was roundly condemned by many leading Republicans. Do you think the trauma of protesters storming Capitol Hill will moderate the Republican caucus and open the door to more bipartisan cooperation?

I think it will. It certainly is going to put a speed bump in front of Republicans before they kind of take the default hard-right Trumpist position. Whether because you believe substantively that you may be inciting people or because you think you might be blamed for doing so, it will have an impact.

Until now you had a lot of folks who went along with a lot of Trump-type ideas because it seemed easier to do so. I think we’ll see more politicians giving it a second thought before they endorse some idea the far Right is promoting.

The other factor is that Ted Cruz and Josh Hawley have been looking to run for President. I don’t think these riots are going to stop them, but it might make it much harder for them. Until now the only path to the Republican nomination was the Trump acolyte lane. This might seriously open up a more moderate and traditional conservative lane.

As someone who spent many years working in Congress, what was your personal reaction to seeing the Capitol overrun by protesters? And what do you think this event could mean for the future of American government?

It was an incredibly sad day. I worked on the Senate floor. And the idea that some random protester or terrorist is sitting in the presiding officer’s chair just 10 minutes after going through the electoral college vote is just inconceivable.

I think we’re somewhat lucky that there wasn’t more violence. The five fatalities are terrible, but if you think of 1,000 people storming the Capitol, it could have been a lot worse. I agree with the commentary that people have been setting these bonfires hoping they were going to catch on to something bigger and that’s exactly what happened.

I’m hoping that people begin to think more carefully about how their words are echoed in social media and how they capture people’s attention. Whether you’re the President or a Senator, or a media figure, things get amplified and your words can matter a lot. More than ever, a lot of people can’t seem to tell what the difference is between fact and opinion.

The Capitol is a physically beautiful place to work in; and to have it overrun is just terribly sad.

How optimistic or pessimistic are you for the future of American democracy?

I’d like to think this is the bottom of the barrel. My party, the Republican Party, has seen what I look at as a 15-year slide into nothingness. It started with Sarah Palin’s nomination, and then the Tea Party’s ascendancy, and then Trump. The question seems to be when enough more traditional Republican voters will push back and demand a party that marginalizes these populists and, as we now see, dangerous elements.