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Breaking a Tie in the Senate

(Update- see this more recent post on the possibility of a court challenge to the Lieutenant Governor’s vote).

It appears the Virginia Senate, following Tuesday’s elections, will be equally divided, with Republicans holding 20 seats and Democrats holding 20 seats. The Democrats want a shared-power arrangement, meaning that committee chairmanships and other responsibilities would be divided equally between the two parties. This is apparently what was done on the one previous occasion, in the 1990s, where such a situation arose. Republicans, on the other hand, contend that they are entitled to control the chamber because the Republican Lieutenant Governor has the power to break ties.

One Democratic Senator, “Chap” Petersen, told the Washington Post that “the lieutenant governor is not a member of the Senate” and that, if Republicans seized power, Democrats could sue to stop it. Senator Petersen seems to be saying that the Lieutenant Governor lacks the constitutional power to break ties with regard to internal matters such as committee assignments and other rules.

The Virginia Constitution provides that “[t]he Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division.” This provision was apparently (my research on this is admittedly cursory) added as part of the Constitution of 1869. It closely parallels Article I, Section 3, clause 4 of the U.S. Constitution, which provides that “[t]he Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Because of the similarity of the constitutional provisions, it is worth taking a look at how the U.S. Senate has dealt with similar issues.

On several occasions during the 19th Century, questions were raised as to whether the Vice President’s right to break ties extended beyond legislative matters. For example, in 1850 Vice President Millard Fillmore inquired of the Senate whether “he might vote in a case where there was a tie in the election of an officer of the Senate.” Senator (and former Vice President) John Calhoun responded that he had voted several times on executive nominations during his tenure as Vice President. “The opinion of the Senate seeming to be in favor of the power of the Vice-President to vote in the case before them, Mr. Fillmore cast his vote for one of the candidates.” Hinds Precedents § 5972.

In 1877 the issue arose again when the Senate was considering a question of whether to seat a Senator. The vote being equally divided, Vice President William Wheeler voted in the negative. Senator Thurman initially challenged the Vice President’s right to vote on the question, but, after a debate in which the Fillmore precedent was discussed, Thurman withdrew his challenge and Wheeler ruled that there was “no doubt of his right to vote in all cases in which the Senate is equally divided.” Id. § 5977.

Finally, in 1881 Vice President Chester Arthur cast the tie-breaking vote with regard to organizing the Senate at a time when the parties had equal voting strength. Although Senator Saulsbury expressed the opinion that the Vice President was not empowered to vote on such a question, the earlier precedent was again cited, and the Vice President proceeded to break the tie. Id. § 5975.

In the U.S. Senate, therefore, the precedent seems well-established that the Vice President’s tie-breaking vote extends to non-legislative votes, including matters relating to control and organization of the chamber.

3 Comments

  1. Rich says:

    You forgot to address 2001. The 2000 election resulted in a split election. It was decided that the party of the Veep would control the nominal majority (thus who was the Majority Leader and which party supplied the president pro tempore), but that the parties would split the committees 50/50 and that either the Majority Leader or Minority Leader could call up legislation or nominations bogged down by a 50–50 committee vote. All of this was done up front, so for example, on January 3, the Senate passed S.Res 3, electing Bob Byrd to serve as PPT until noon on Jan. 20 and Strom Thurmond to serve from that point forward. The agreement ended, of course, when Jim Jeffords defected to the Democratic caucus.

  2. mstern says:

    Rich- your comment clearly illustrates the dangers of posting things on the fly. I not only forgot to address 2001, I just forgot about 2001.

    I do not believe, however, that the 2001 powersharing agreement involved the question of whether the VP had the power to break ties regarding Senate organization. I think there was a clear understanding (correct me if you disagree) that VP Gore would have that power up until inauguration of the new president, and that VP Cheney would have that power thereafter.

    Instead, I think the powersharing agreement goes to a different issue, one that does not involve the question of the VP’s constitutional authority to vote. Regardless of how many seats each party has, there has to be some division of committee seats, staff, funding, etc. The 2001 powersharing agreement was a negotiated bargain designed to accommodate the interests of both parties under the circumstances presented by the 2000 election.

    If the Senate were to be evenly divided again, I have no doubt that the 2001 agreement would be cited as a “precedent” as to how power ought to be divided among the parties. I do doubt, however (again, tell me if you disagree), that it would be considered a “precedent” in the sense of mandating the same outcome as a matter of Senate rules or procedure. In other words, if the majority party (ie, the party of the VP) introduced an organizational resolution to which the minority objected, the minority would protest the unfairness of the resolution but would not claim that it violated Senate rules in some way.

    This distinction may seem like a fine one since in either case the dispute is going to be resolved by a vote of the Senate. In the former, the organizational resolution would presumably result in a 50-50 tie, which would be broken by the VP. In the latter, the presiding officer (possibly the VP) would rule on the validity of the resolution and that ruling could then be appealed to the Senate.

    I maintain that the distinction is an important one, however, because Senators have an obligation to follow the “law of the Senate,” even though they have the de facto power to change that law through rulings that set new precedents, etc. This is why I contend that it would be illegitimate to eliminate the filibuster through parliamentary rulings that are inconsistent with Senate rules and precedents. A Senate majority has the raw power to make such rulings, but it would not be a legitimate exercise of its authority to determine the rules of its proceedings.

    This tells us something about the types of arguments that Virginia Democrats should be making with regard to the allocation of power in the Virginia Senate. They clearly can make the argument that fairness requires that power be more evenly divided than it would be if one party had a numerical majority of Senate seats. They may or may not be able to make the argument that some particular division of power (eg, equally divided committee chairmanships) is required under the “law of the Senate.” But they probably cannot make the argument that the Lieutenant Governor lacks the power to break ties on organizational matters.

    • pow wow says:

      “I maintain that the distinction is an important one, however, because Senators have an obligation to follow the “law of the Senate,” even though they have the de facto power to change that law through rulings that set new precedents, etc. This is why I contend that it would be illegitimate to eliminate the filibuster through parliamentary rulings that are inconsistent with Senate rules and precedents. A Senate majority has the raw power to make such rulings, but it would not be a legitimate exercise of its authority to determine the rules of its proceedings.”

      Amen.

      A sentiment with which I think every Senator (and citizen) interested in the present and future well-being of fair, democratic self-governance in that institution would have to agree. [We won't mention, for the moment, the many present Senate incumbents - in thrall to the presidency-beguiled mass media and the Parties - who quite evidently have anything and everything BUT safeguarding the Senate's vital legislative purpose uppermost in their minds.]

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