By Prof Don DeBats, Flinders University, American Studies
With two days to Election Day, the odds continue to favor Hillary Clinton and Tim Kaine as the next President and Vice President. The Republican Party looks equally likely to remain in control of the US House of Representatives.
Which party is in control of the US Senate, the more powerful of the two Congressional chambers, is far less certain. This is perhaps now the most interesting federal contest on the very full November 8 ballot.
Democrats Need to Gain Only Four Seats?
A common theme in media coverage is that the Democrats need to pick up “only” four seats to take control of the Senate. That is not quite right.
The logic of four seats is as follows: the present Senate is split 54 Republican, 46 Democratic and so four seats yields a tie. BUT, the argument goes, if Clinton and Kaine win the White House, Vice President Kaine, becomes president of the Senate and has a tie breaking vote—101 votes in the Senate rather than 100.
This is true, but its implications are limited. In one of the odd mixtures of executive and legislative authority in the US Constitution, Kaine as Vice President would also have two Senate responsibilities:
- After the new Senate assembles in January, he would have the power to cast a decisive vote in the Senate on any legislation which is a tied vote (just as Joe Biden does until then) and
- More remotely, in 2020, to preside over the counting of the Electoral College votes to determine the President and Vice President of the United States. (This year’s counting of the Electoral College votes will be presided over by Joe Biden, on December 19).
But what does this tie-breaking vote amount to? Does it deliver control of the Senate?
The Vice President always has the power of breaking a tie in the Senate; it becomes a larger media issue when the chamber is split 50-50. But, since US legislators, unlike their Australian counter-parts, are free agents and can cross party lines with relative impunity, tie votes can become possible for many reasons beyond parties being equally represented in the chamber: members die in office, Senators cross party lines on a vote, resign in mid-term, or switch parties. Party leaders seek to prevent tie votes and they are in fact quite successful. Tied votes are rare and seldom turn on resolution provided by the executive branch: since 1900 there have been only 67 tie breaking votes cast by vice presidents. Joe Biden has cast no tie-breaking Senate votes in eight years as vice president.
The experience after the 2000 election which did produce a 50-50 Senate shows just how limited is the vice presidential tie-breaking power even in an equally divided Senate. The evenly split Senate created in the November 2000 election ended just seven months later, on June 6, 2001 when Senator Jeffords switched from the Democratic to the Republican Party and gave the Democrats a one seat majority on the floor of the Senate. In the half year that the 50-50 partisan split prevailed, from January 20, 2001 to Jeffords’ conversion, Vice President Dick Cheney cast only two tie breaking votes (on April 3 and 5), both on relatively minor amendments to legislation.
The real power of the Senate resides with the majority leader of the Senate who is elected by members of the Senate, not in a tie-breaking vice president imported from the Executive Branch.
In Fact, Democrats Need to Gain Five Seats
What this means is that in reality the Democrats need to pick up five seats from the Republicans to have effective control of the upper house. Five is 25 percent more than four and that much more difficult to obtain.
Can the Democrats score a net gain of five seats? Devising an answer is a bit complex (some might say tedious), but goes like this:
The Senate term is six years with a third of the 100 member chamber up for election each two years. This year that means 34 Senate seats up for election: 24 Republicans (reflecting the Republican tide in the 2010 election) and 10 Democrats. The continuing Senate – the Trump Senate – will have 30 Republicans and 36 Democrats and that is the base on which the 2016 results will build.
First, one number that won’t change: the composition of the rump Senate. Recall that Tim Kaine is presently one of the two US Senators from Virginia. If he becomes Vice President on November 8, the Governor of Virginia, a Democrat, will appoint a Democrat as a temporary replacement. That person would serve until a special election in 2017 and in 2018 the seat would be contested for a full six year term. Kaine’s election as Vice President then would result in no immediate loss of Democratic numbers in the Senate.
Second, the numbers unlikely to change: incumbents are standing in 29 of the 34 Senate seats up for election and most will be re-elected. One of the rules of US elections is that incumbents win, not always but very often. The consensus is that 23 seats are safe (14 Republican and 9 Democratic). That narrows the competitive field to 11 of the 34 seats.
Third, the numbers that are somewhat uncertain: Republicans look likely, but only likely, to retain three additional Senate seats: Arizona, Louisiana, and Florida, with Rubio’s contest in Florida the most problematic. Let’s assume Rubio wins. While the polls are tightening in the Senate races, Democrats look likely to pick up three seats from Republicans: Illinois, Pennsylvania, and Wisconsin. Each win would be over an incumbent Senator and, if realized, provide a very real measure of the strength of the Democrats in this election. If these numbers prevail, the Republicans will be sending 17 incumbents back to the Senate and the Democrats nine sitting members and three new faces.
The Five Deciders
This takes the likely tally in the new Senate to 47 Republicans and 48 Democrats and identifies the five battleground states for control of the Senate. The Democrats must win three of those state battles to control the Senate while the Republicans must win four to control the Senate.
The final five “toss-up” states are Indiana, Missouri, North Carolina, New Hampshire and Nevada. These are the deciders, assuming of course that all of the above holds.
The Republicans Can Win If……
Factors that favor the Republicans taking four: Republican incumbents are standing in three of these seats — Missouri, New Hampshire and North Carolina. The Indiana seat has been held by a Republican, Dan Coats, who is retiring. BUT Mike Pence, Trump’s vice presidential pick, is the Governor of Indiana and has proved a viable and likeable candidate, in contrast to his boss. Each of these features gives the Republicans a leg up, but can they carry all four of these battles?
There is of course the other state: Nevada where Harry Reid, a Democrat, is retiring. Reid is a powerful political figure who has been majority leader when the Democrats have had control of the Senate.
The Democrats can Win If…..
Factors that favor the Democrats: three is less than four and one of the three is their own state of Nevada, making a win there more likely. If the Democrats hold Nevada, they need to take just two more seats to control the Senate for at least the next two years. In this sense, then, the Democrats have an inside edge and they are more likely than the Republicans to take control of the US Senate.
Why This Matters
The result of these battles will greatly affect the politics and policies of the first two years of a Hillary Clinton presidency. The Senate is a powerful chamber and Senate confirmation is necessary for all presidential nominations, including appointment to the US Supreme Court which is presently evenly split on most issues and is one member short. President Obama nominated Merrick Garland, a moderate, for that vacancy on March 16. Republicans have refused to consider that nomination, and Garland has now waited longer for his confirmation hearing than any nominee in the history of the US Supreme Court.
It is not difficult to imagine a Republican controlled Senate continuing a highly obstructionist stance, especially if the Republicans also control the House of Representatives, successfully blocking Clinton nominations and forestalling any effort to save the Trans-Pacific Partnership, a trade pack vital to Australia’s strategic relationship with the United States.
The presidential election occupies the central ring of a three ring circus. Off to the side, in the ring labelled “The Senate” a grittier and important struggle is underway. It’s worth a look on election night.