How a midterm tie gets settled in the case of the Senate
In the World Cup, they play overtime, then rely on penalty kicks to settle ties.
The National Hockey League plays a short overtime, followed by a shootout. NHL games used to end in ties. In the playoffs, the teams keep going – until there’s a winner. In the 2020 playoffs, the Tampa Bay Lightning finally topped the Columbus Blue Jackets 3-2 after a staggering five overtimes. In other words. They played nearly THREE total games. That’s the equivalent of 26 innings in baseball.
Speaking of Major League Baseball, teams play extra innings. And keep playing until one team is ahead and the home team has completed an at-bat in the bottom of the inning. MLB modified its rules a few years ago, introducing a "ghost runner" on second base to start the 10th inning. That’s an effort to end the tie and finish the game sooner.
If only there were a method to settle a tie in the U.S. Senate.
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Yes. In the case of a tie roll call vote, the vice president — who doubles as president of the Senate – can vote to break a tie vote. In fact, the VP doesn’t even have to cast a ballot if it’s a tie and the roll call vote is going the way he or she wants. By rule, tie votes go down to defeat in the Senate.
But what if we wake up Wednesday morning (if not Friday or Saturday morning or sometime in early December, depending on how hotly contested things are) to discover that the Senate is tied at 50-50?
There is nothing in the Senate’s 44 standing rules which serves as a tiebreaker. The Founders didn’t provide a system to bust up a tie and determine which side is in the majority or minority. And no, it’s not written down anywhere that the party of the President is automatically thrust into the majority.
Maybe soccer is on to something with penalty kicks. At least there’s a system. There’s nothing concrete to sort out which party controls the Senate if things are deadlocked at 50-50.
There was a tie was a Senate tie in 1881 after resignations and political maneuvering. The Senate was also tied for a period in 1954. Nearly ten percent of all senators died during the two-year Congress which stretched from early 1953 to early 1955.
However, the Senate featured two ties in recent Senate history. Both instances reflect what the Senate did to sort out which party captured the majority. One tie came after the 2000 election. The other in 2020. Both elections took a while to sort things out.
In 2026, Alaska, we’re looking at you.
It took until early December, 2000 to determine that Sen. Maria Cantwell, D-Wash., defeated then-Sen. Slade Gorton, R-Wash., establishing a 50-50 Senate.
In fact, the tie for the Senate from the 2020 election wasn’t even established until two days into the new Congress on January 6, 2021. Yes. That was the day of the Capitol riot. Sens. Jon Ossoff, D-Ga., and Raphael Warnock, D-Ga., both won runoffs to set the 50-50 split.
In early December, 2000, the Supreme Court finally settled the Florida election dispute between President George W. Bush and Vice President Al Gore. Republicans had held the Senate. But then Senate Majority Leader Trent Lott, R-Miss., and Senate Minority Leader Tom Daschle, D-S.D., engineered a power-sharing agreement between the parties. This aligned with the election of Vice President Dick Cheney.
Lott would serve as the Majority Leader and the GOP technically had the "majority." But the bipartisan pact granted Daschle some special floor powers. Republicans chaired each committee. However, there was equal representation by both parties on each panel.
The full Senate had to ratify this agreement. And it did just that.
Such a process is subject to two filibusters requiring 60 yeas. One to bring up the proposal for debate. Another to terminate the debate. Then a simple majority to pass it. But none of that was a problem. The Senate greenlighted it with all 100 senators signing on.
Why such smooth sailing?
Republicans feared Democrats would stall the agenda of President George W. Bush. So they got on board. Democrats agreed because they knew they were kinda, sorta in the majority. Otherwise, they were relegated to an outright minority.
Former Senate Republican Leader Mitch McConnell, R-Ky., was well aware of those same dynamics in 2001. He insisted that Senate Democratic Leader Chuck Schumer, D-N.Y., propound – word-for-word – the same accord in 2021 which Lott and Daschle hammered out.
Which brings us to a potential tie in 2027. Is there the political will in the Senate – let alone the votes – to agree to such a compact? President Trump is still president. And Vice President JD Vance is still President of the Senate. What would they say about that? Unclear.
The Senate isn’t compelled to present a dedicated "majority" or "minority." The concept of a "Majority Leader" is relatively new – only dating back to the early 20th Century. The Senate is a body of "equals." Thus, the Founders didn’t expect one senator to wield operational control of the Senate. You won’t find the words "Majority Leader" anywhere in the Constitution. Just Speaker of the House and President of the Senate.
If there’s a 50-50 Senate and an impasse, could Vance suddenly have more power? Maybe. As President of the Senate, he can’t debate. He can only preside over the body and break ties. Moreover, would Vance even want to assert more authority? It’s unclear what that could be. And what would all of this do to his plans to run for president in 2028?
In fact, a deadlocked Senate with no power sharing agreement could potentially hamstring Vance. It wasn’t that long ago that the Vice President spent much of his time presiding over daily Senate debates. But not anymore. If there’s no set majority, those responsibilities either fall to Vance, current Senate President Pro Tempore Sen. Chuck Grassley, R-Iowa, or the possible Democratic Senate President Pro Tempore Sen. Patty Murray, D-Wash. The latter two are the most senior senators from their respective parties. The President Pro Tempore is third in line to the presidency, following the Vice President and House Speaker. A power sharing agreement is what helps determine who presides over the Senate. Otherwise, Vance may be moored in the Senate.
So there is precedent for settling a "tie" in the Senate. But it hinges on the political will of senators. And if there are disputes about seating Members – say the Alaska Senate race or another contest becomes a conflagration – one can anticipate a toxic climate on Capitol Hill. Few may be willing to sign on to anything.
The Senate relies a lot on history and precedent to do things. But absent political will, senators may just resort to rock, paper, scissors.
Or maybe, penalty kicks.