But there’s another possibility that should also have the Democrats reaching for the Maalox: A random act of fate could turn the Senate over to th
But there’s another possibility that should also have the Democrats reaching for the Maalox: A random act of fate could turn the Senate over to the Republicans not next January, but next summer, or next month, or next week. An illness or death could well trigger a political earthquake — by almost instantly switching control of the nation’s top legislative body.
States have a range of laws about replacing a departed senator, but the large majority — 37 — call on the governor to pick a successor. Of those, only seven require the governor to pick someone in the same party. So there are 30 states where the governor can pick whatever new senator he or she wants.
What that adds up to, in practical terms, is that in nine states (as of Jan. 15), a Republican governor has the authority to replace either one or two Democratic senators. If a single Democratic senator in any of those states had to leave office, the Republican governor of that state could appoint a GOP replacement that would immediately give the party a 51-49 Senate majority.
When Glenn Youngkin becomes Virginia’s governor later this month, he will join a group of GOP governors from states with two Democratic senators: Vermont, New Hampshire, Massachusetts, Maryland, Georgia and Arizona.
Two other states, Ohio and Montana, have one Democratic senator and a Republican governor. (There’s another set of states, of course, with the opposite dynamic: Louisiana, North Carolina, Kentucky and Kansas all have a Democratic governor and two Republican senators; three others, Maine, Pennsylvania and Wisconsin, have a single Republican senator with Democratic governors. Of the aforementioned states, only in Maryland, Arizona, North Carolina and Kentucky are the parties assured of holding their seats under state law.)
There was a brief flutter of concern about senatorial succession last January, when 80-year-old Vermont Democrat Pat Leahy went into the hospital. If health forced him out of office, who would Republican governor Phil Scott name? Scott’s about as “un-Republican” a Republican figure as any, and Leahy recovered quickly. But the broader issue, uncomfortable as it may be to contemplate, remains.
And it’s an issue magnified by the erosion of collegiality and comity that once defined much of how the Senate operated. In an earlier era, an evenly divided body dealt with an unstable balance of power by sharing it, or making accommodations. Today, such prospects seem more like a pastoral fantasy.
It might seem morbid to think too concretely about what happens when a senator dies or is compelled by illness to leave office. But in a way it’s irresponsible not to. While only three senators have died in office in the last decade, the actuarial reality — 26 senators are 70 years old or more — deserves attention. (Fate, of course, is no respecter of age; Robert Kennedy was 42 when he was assassinated; Paul Wellstone was 58 when he died in a place crash). Moreover, there have been times when the Senate has lost a remarkable number of its members. In 1953, the 83rd Congress began with 48 Republicans, 47 Democrats, and one independent, representing the 48 states that then formed the Union. Over the course of the session, no fewer than nine senators died in office, and another resigned.
With such a close vote to start with at the time, what happened? On several occasions, the appointed senator indeed came from the other party. But the Senate was a very different place then — and effectively its power didn’t really change hands.
When Ohio Republican Robert Taft died in office in July 1953, Ohio Gov. Frank Lausche replaced him with Democrat Thomas Burke. This gave Democrats a 48-47 majority — but the independent, Sen. Wayne Morse, who’d left the GOP out of his antipathy toward Richard Nixon and Joseph McCarthy, voted to keep the GOP in control of the chamber for the sake of comity and continuity.
Other deaths during the session would again give Democrats a single-vote majority, but Democratic leader Lyndon Johnson never pressed the issue. Why not? In the first place, Johnson was acutely aware of President Dwight Eisenhower’s popularity, and he wanted to position his party as cooperative. Indeed, he was savvy enough to see that some of Ike’s most fervent opposition in the Senate was coming not from Democrats, but from more conservative Republicans. Second, the filibuster rule and the Republican in the White House would have essentially stopped Johnson from enacting anything like a Democratic legislative agenda. As for power over judicial confirmations, the process back in the ’50s had none of the partisan implications it has today. Finally, the relative collegiality of Washington meant that in an evenly divided Senate, Johnson could gain concessions on issues like committee assignments in return for not challenging the Republicans’ organizational control.
As it happened, in November 1954, Democrats won control of the Senate — a control they would hold for the next 26 years. Since that time, no senatorial death has shifted numerical control of the chamber (though it nearly occurred when South Dakota Democrat Tim Johnson was struck by a brain hemorrhage in 2006).
Today, if a Republican governor sent a party member to replace a deceased Democrat, it’s hard to imagine Mitch McConnell — or any Republican leader — agreeing to let Democrats keep the power to organize the Senate. And to put a bipartisan spin on the question: when Jeffords left the GOP in 2001 and announced he’d align with the Democratic caucus, did Daschle decline the chance for his party to become the majority?
It’s this combination of an evenly divided Senate and the scorched-earth nature of today’s political battles that makes this exercise more than just morbid speculation. Governors have been choosing members of their own party to replace senators of the other party for decades. (It even happens in national tragedies: When the Democratic icon Robert Kennedy was assassinated in 1968, the Republican New York Governor, Nelson Rockefeller, replaced him with a Republican, Charles Goodell.) In more than 200 cases going back more than 100 years, governors have named a replacement from the other party only three times.
Now, however, with the Senate majority hanging by the thinnest of threads, that traditional gubernatorial power looms as a potentially fatal blow to Democratic control over the next year. (Faced with a potential shift of power that a sudden Senate vacancy would trigger, would McConnell emulate Lyndon Johnson and stay his hand, permitting Democrats to retain organizational control over the Senate? It’s possible, but is there anything in his past that suggests McConnell would decline to grasp another lever of power?)
One postscript: this threat to Democratic dominance of the Senate is not the most extreme possibility. The 25th Amendment details how our system deals with a president unable to discharge the duties of the office: the vice president and a majority of the Cabinet can make such a finding, and in that case, the vice president would temporarily assume the duties of the office.
But what happens if a vice president becomes unable to perform the duties of the office? If she or he falls ill, or is severely injured, there’s no mechanism to off-load the job to anyone else — which means that in a 50-50 Senate, there’d be no one to break a tie. (If this seems beyond the pale, remember that we learned just this week that Harris was inside Democratic National Committee headquarters as an undiscovered bomb was lying outside the building on Jan. 6, 2021.)
Is there anything remotely comforting about such thoughts? Well, it makes worries over Joe Manchin’s possible defection a lot easier to contemplate.
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