Senator Ben Ray Lujan, a New Mexico Democrat, suffered a stroke last week. He’s expected to make a full recovery and to return to Washington in a few weeks. Until then, the Democrats won’t be at full strength, which is causing a fair amount of panic among some observers. After all, the party balance in the Senate is dead even, a 50-50 tie, with Democrats only holding their slim majority thanks to Vice President Kamala Harris’s tie-breaking vote.
As Grover once said, however, this kind of situation does not call for freaking out. In fact, assuming the timeline is correct and that no other disruptions happen, it’s really not that big a deal for the Democrats’ floor majority.
The math is simple. So far this year, Harris has only broken ties 15 times, and four of those were nominations that required two votes. That’s a lot, historically speaking; the last vice president to have voted more times was Schuyler Colfax, and he had four years to do it (1869-1873). But even if there were another handful of cases where Republicans might’ve forced a tie with full attendance, it’s not really that many compared to all the measures that Democrats have brought to the Senate floor. They’ve already taken 32 votes this year, after taking 528 last year. Some of those were due to the filibuster — on normal legislation, it takes 60 votes, rather than a simple majority, to defeat a filibuster, and Senate practice since 2009 has been to filibuster everything that can be filibustered. Missing Lujan is unlikely to matter much in those situations, although it’s possible that some bill will arise that can get exactly 10 Republicans along with all the Democrats and will therefore have to be postponed until he’s back.
Then there are those bills that are exempt from normal filibuster rules and need only a simple majority. Harris provided the winning vote at one point for the big relief bill last February, which passed using “reconciliation” rules. The same rules would also apply to the large climate-health-care-and-more spending bill that is currently stalled in the Senate. But that bill has only 49 votes, not 50, and it doesn’t seem likely that any new version that can attract the support of West Virginia’s Joe Manchin will turn up in the next few weeks.
Lujan’s absence is more likely to matter on nominations, where a simple majority is all it takes. Yet there have been exact ties on only eight of the more than 300 executive-branch and judicial nominations that have been confirmed during this Congress. It’s true that there has been significant Republican opposition to nominations that once would’ve been routine. But that opposition is rarely unanimous, meaning that 49 Democratic votes is almost always enough.
Sure, Republicans could’ve suddenly rallied together to disrupt things anyway, using Lujan’s illness as an opportunity. The first test, however, showed no sign of that — the Senate has moved forward on several nominations this week, before and after the news broke from New Mexico, with lopsided votes. Certainly, any nominations on which Republicans are united in opposition will have to be delayed. But given the huge backlog of nominees ready for Senate votes, that’s unlikely to be a significant problem.
Concern isn’t coming out of nowhere, of course. Quite a few senators in recent years have had extended absences for health-related reasons. There’s always a chance a senator will die in office or resign, and if it’s a Democrat replaced by a Republican, the Senate majority would in fact flip. And during the pandemic, the risk of another senator suddenly being unavailable for a few weeks is higher than usual (the Senate, unlike the House, does not allow remote or proxy voting in the full chamber).
Still, the record so far is a good reminder that even in this era of what seems like extreme polarization, straight party-line votes in the Senate only occur on a limited number of measures. Again, the filibuster has a lot to do with that; if 50 votes plus the vice president was all it took, Democrats would’ve advanced quite a few more bills and some of them would pass with the smallest possible majority. Yet even though the most conservative Democrats are more liberal than the most liberal Republicans, lots of measures either are moderate enough that they’ll draw the votes of a few Republicans, or liberal enough that Manchin opposes them and therefore Democrats won’t bring them up for a vote. And as contentious as nominations have become, only a fraction of them end up passing on party-line votes.
None of this is to say that polarization isn’t important. It’s probably the most important thing to know about Congress right now. But it’s not the only thing to know. And remember that both parties, especially Republicans in the minority, have strong incentives to emphasize and even exaggerate how large the gulf between them really is.