After several weeks of negotiations proceeding in fits and starts, Senate Majority Leader Chuck Schumer and Minority Leader Mitch McConnell reached a power-sharing agreement governing the operation of the evenly divided Senate.  As expected, the deal, which passed by voice vote, largely conforms to the agreement in place when the Senate was last evenly divided in 2001, but the backdrop and atmospherics are materially different.

Democrats gained the Senate majority on January 20 with the swearing in of Senators Jon Ossoff and Raphael Warnock, both of Georgia, and of Vice President Kamala Harris as the tie-breaking vote in the 50-50 body.  In contrast to 2001, the organizing resolution this Congress was delayed for weeks due to disagreements over, among other things, Leader McConnell’s demand that Leader Schumer preserve the legislative filibuster.  Although Leader Schumer did not guarantee that he would maintain the filibuster, Leader McConnell dropped the demand after two Democratic senators said that they would not support ending the legislative filibuster now.

Like the 2001 agreement, the agreement for this Congress:

• sets committee membership ratios at 50-50;
• gives the committee chairs to the Democrats as they have the tie-breaking vote; and
• establishes a procedure by which the majority or minority leader can bring a measure to the Senate floor that failed to be reported out of committee due to a tied vote.

The agreement also contains a non-binding sense of the Senate that “both Leaders shall seek to attain an equal balance of the interests of the two parties when scheduling and debating legislative and executive business generally.”

As part of the 2001 agreement, then-Majority Leader Trent Lott and Minority Leader Tom Daschle engaged in a written colloquy in which they agreed not to “fill the tree,” a procedural maneuver that allows the majority to block amendments from being offered.  Specifically, the leaders agreed that “neither leader, nor their designees in the absence of the leader, will offer consecutive amendments to fill the amendment tree so as to deprive either side of the right to offer an amendment.” Since 2001, filling the tree has become significantly more common, and the issue was a major sticking point in reaching this year’s agreement.

Leader Schumer and Leader McConnell engaged in a similar colloquy, with McConnell committing to try to avoid unnecessary delay and Schumer to allow an opportunity for relevant amendments to be offered.  Rather than a strict pledge not to fill the tree, Leader Schumer said that he supported “active and dynamic debates” and was “opposed to limiting amendments by ‘filling the tree’ unless dilatory measures prevent the Senate from taking action and leave no alternative.”  This is a weaker commitment than in the 2001 colloquy, but one that is unsurprising in the modern Senate given the rarity of bills on the floor that are open to amendments and the widespread use of delaying tactics.

For his part, Leader McConnell suggested in the colloquy that allowing more amendments would reduce filibusters of motions to proceed, a dilatory tactic used generally by the minority.  He ascribed this practice to senators wanting “to ensure they are given the right to offer amendments.”  Senators, however, do not need permission of leadership to filibuster, so neither Leader McConnell nor Leader Schumer have the power to prevent this tactic.

Without an organizing resolution in place, Republican committee chairs from the last Congress maintained control of committees.  The delay led to odd results like outgoing Judiciary Committee Chairman Lindsey Graham having the power to decide whether to hold a confirmation hearing for Judge and Attorney General nominee Merrick Garland, despite being in the minority.  With an organizing resolution in place, Democrats can now take control of committees and begin implementing their agenda.

With Democrats holding only the slimmest of majorities, they are expected to move quickly. Indeed, in 2001, the last time the Senate was evenly divided, the power-sharing agreement lasted only five months before Senator Jim Jeffords, a Republican, switched caucuses, giving the Democrats a 51-vote majority.