Vice Presidents and the Senate
Senator Kamala Harris (D-CA) is set to become the first woman and second person of color elected to the United States' vice presidency. In addition to being next in line to the presidency, the Vice President is proscribed by the U.S. Constitution as President of the Senate. As a result, Harris will wield some limited but potentially significant power in a chamber that will feature a narrow partisan majority. Pending the results of two run-off elections in Georgia, the new Senate will feature either a two-seat Republican majority or an evenly split chamber under Democratic control due to Harris’s tie-breaking vote.
While presiding officers play a pivotal role in legislative bodies' operations, their impact is contingent upon members' delegation of authority. This centralization of power has occurred in the House, where contemporary Speakers use their authority over the Rules Committee to expedite consideration of legislation and block divisive amendments. As a result, the modern House is often described as either extremely efficient or ruthlessly partisan, depending on which side of the aisle you happen to be on.
Comparable centralized powers have not been granted to the Senate’s presiding officer. Instead, the most prominent powers in the chamber are enjoyed by the Majority Leader. However, as James Wallner has argued, the majority leader owes his prominence primarily to increases in informal, as opposed to formal, authority. The lack of centralized formal powers that Vice President-elect Harris will inherit is likely due to the absence of electoral accountability. Michael Lynch, Mark Owens, Ryan Williamson, and I have found that consistent with this, Vice Presidents have been more likely to act against Senate majorities' wishes than other presiding officers. In that article, we document the vice president's constitutional origins in the Senate and outline how their authority in maintaining order in the chamber evolved.
Constitutional Underpinnings
Article 1, Section 3, Clause 4 of the Constitution states: “the Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” It further specifies the chamber elects a president pro tempore, but only to serve in the Vice President's absence. The clause generated some debate, and several delegates spoke out against it.
George Mason asserted this would be “an encroachment on the rights of the Senate; and that it mixed too much the legislative [and] executive, which as well as the judiciary departments, ought to be kept as separate as possible.” And Elbridge Gerry, who would later become the nation's fifth Vice President, argued, "we might as well put the President himself at the head of the legislature. The close intimacy that must subsist between the President and vice president makes it absolutely improper (Farrand 1966, 536)."
In response, Gouverneur Morris joked that this would make the vice president “the first
heir apparent that ever loved his father (Farrand 1966, 536).” In support of the clause, Roger Sherman pointed out the necessity of having the Vice President cast tie-breaking votes. Moreover, Sherman argued that should the Vice President not serve as President of the Senate, he would be “without employment (Farrand 1966, 537).” The clause was adopted ten days before the Constitutional Convention ended, with eight states in favor, two opposed, and one abstaining.
Early Debates Over the Vice President’s Role in the Senate
Despite his constitutional placement as the Senate’s presiding officer, the Vice President’s powers were not well-established in early congresses. An 1826 episode we detail in the paper highlights this. In that instance, the Senate had sought to expand the Vice President’s role by granting the presiding officer the ability to appoint senators to committees. Vice President John C. Calhoun used this power to stack key committees with loyalists, much to the Senate majority's chagrin.
Later in the Congress, he refused to call Senator John Randolph to order during a debate for using offensive language. Instead, he allowed Randolph to “drink himself drunk with bottled porter” and hurl insults for six hours (Remini 2002). Calhoun argued that as a member of the executive branch, he had no power to preserve order in the Senate apart from what was specified in the Senate's rules. Echoing Gerry's warning at the Constitutional Convention, Calhoun would later write:
“Mark the consequences! If the Vice-President should belong to the same party or interest which brought the President into power, or if he be dependent of him for his political standing or advancement, you will virtually place the control over the freedom of debate in the hands of the Executive”
Many disagreed with Calhoun’s argument, with several senators suggesting Calhoun’s actions were more likely motivated by short term political gain than broader concerns about interbranch relations. For example, Joseph Story (1833, 516-517) argued that the right to call members to order was a fundamental role of presiding officers. It was always presumed the Vice President had this power. He went on to note that "[The power to call members to order] had never been doubted, much less denied, from the first organization of the senate; and its existence had been assumed, as an inherent quality, constitutionally delegated, subject only to such rules, as the senate should from time to time prescribe."
Failure to maintain order can have significant consequences. Calhoun's decision to allow Randolph to continue his long, drunken tirade later led to a two-round duel with Secretary of State Henry Clay. While neither was shot, Clay's second round went close enough to go through Randolph's coat. Shortly after the episode with Calhoun, the Senate would rescind committee appointment powers from the Vice President. In 1828, they also amended their rules to clearly state that senators could be called to order by both the President of the Senate and other senators in a debate. Since then, Senate majorities have primarily refrained from providing the office with additional formal powers.
This is not surprising. In our paper, we use a dataset of questions of order in the Senate, comparing the vice president's rulings to the President pro tempore, an office elected by a chamber majority. Like Calhoun, we find that when the chamber lacked a formal parliamentarian's office for presiding officers to defer to, vice presidents are significantly more likely to rule against Senate majorities, especially in the 19th century. Likely because of the lack of formal authority, Vice Presidents became substantially less likely to preside over debate in recent decades, opting to do so only when a close vote is imminent.
The Right of Recognition
Apart from maintaining order, presiding officers are often tasked with determining who to recognize for the purposes of debate or offering motions. This essentially provides the presiding officer with the ability to control the nature and order of debate. While the Senate's formal rules stated that the presiding officer must recognize the first senator who addresses him, the situation was often more confusing. The presiding officer would be assailed by numerous senators seeking recognition. He would have to make an often controversial judgment call on who addressed him first.
An extreme example of this occurred in 1863, during consideration of a bill to indemnify President Abraham Lincoln from legal action stemming from his decision to suspend the writ of habeas corpus. The bill was met with fierce resistance. Early in the debate, Vice President Hannibal Hamlin (R-ME) was forced to use his power to call members to order when a drunken Senator William Saulsbury (D-DE) asserted that he “never did see or converse with so weak and imbecile a man as Abraham Lincoln, President of the United States (Congressional Globe, 37th Congress, January 27, 1863, 549)." Hamlin ordered Isaac Bassett, the Sergeant-at-Arms, to detain Saulsbury. The Delaware senator pulled a revolver, leveled it at Basset, and threatened to shoot him on the spot. Saulsbury was nearly expelled over the incident.
In the last days of the session, the conference report was brought to the floor and met with obstruction through repeated motions to adjourn. The debate was finally brought to a close by arbitrary usage of the presiding officer's right of recognition. Hamlin was out of the chamber and replaced by a junior senator, Samuel Pomeroy (R-KS). After an unsuccessful motion to adjourn, Pomeroy stated that "the question is on concurring in the report of the committee of conference. Those in favor of concurring in the report will say 'aye'; those opposed 'no.' The ayes have it. It is a vote. The report is concurred in (Congressional Globe, 37th Congress, March 3, 1863, 1477).” Pomeroy spoke in such a low voice that much of the Senate was unable to hear him. While opponents were outraged, the conference report passed.
This arbitrary exercise of the recognition power was mostly unchanged until the 75th Congress in 1937. In that Senate, the Vice President, John Nance “Cactus Jack” Garner (D-TX), announced he would recognize the majority leader, Senator Alben Barkley (D-KY), first because he is the leader of the Democrats in the Senate (Congressional Record, 74thCongress, August 13, 1937, 8839).” This was done mainly to speed up the Senate and facilitate the massive Democratic New Deal agenda. However, it has become the most essential power enjoyed by the majority leader. It guarantees that the majority leader will be the first member to propose a motion to proceed, report a unanimous consent agreement, or offer an amendment.
Powers in the Modern Senate
In part because of the lack of centralized, formal powers, the office has been frequently and famously disparaged by some of its former occupants. President Harry Truman dubbed it “a cow’s fifth teat.” Vice President Thomas Marshall once stated that "he did not blame proud parents for wishing that their sons might be President of the United States. But if I sought a blessing for a boy I would not pray that he become Vice-President." And Garner famously claimed the office wasn’t worth a pitcher of warm spit.
These quotes, among many others, underestimate the significance of the office. Apart from the Senate, Vice President-elect Harris can expect to wield some significant, albeit informal, power within the administration. It is unlikely that within the Senate, she will be spending a great deal of time presiding over debates. Instead, her most prominent role will likely be casting tie-breaking votes. The importance of this in a narrowly controlled Senate should be evident to most Americans.
Vice President Mike Pence (R-IN) cast several high profile tie-breaking votes on issues ranging from cabinet and judicial nominations to whether to proceed to consider the Republican health care plan. He will end his tenure as Vice President with more tie-breaking votes since Schuyler Colfax (R-IN), who served in the Grant administration from 1869 to 1873.
Democratic priorities like nominations and Congressional Review Act resolutions will receive floor votes even absent control of the chamber through the Georgia run-off elections. Given the narrow partisan majority, it seems likely that Harris's vote will be frequently needed.