By Michael Barone
© National Journal Group Inc.

Part I Life, Liberty And Property Part II The Political Government Part III The House

In November 2002 the Republicans won control of the House and won a majority of seats in the Senate. The choice of words is deliberate. Journalists speak glibly about who controls the Senate. But no one controls the Senate. It is a body of 100 men and women, most of whom think or thought that he or she should be president. It is a legislative chamber which conducts much of its business under rules that require unanimous consent for many matters and in which a supermajority of 60 votes is required for much that used to be routine business. The Framers created the Senate as a balance wheel, a cooling saucer for hot coffee, a place where superior experience and wisdom could prevent unwise and rash mistakes. With only one-third of its members elected every two years, with a fair number of its members free from political pressures because of their personal relationship with young voters in small or one-party states, with its rules allowing even the weakest and personally least regarded of its members to stop the forward motion of legislation for some precious period of time, with its allowance of unlimited discussion and non-germane amendments and its rules that require a 60% supermajority for passage of strongly-opposed legislation, the Senate supplies some caution to the enthusiasm of the House.

Before the ratification in 1913 of the 17th Amendment providing for popular election of senators, the members of the Senate were elected by state legislatures and were something in the nature of ambassadors from the state governments to the federal government -- in some cases, very high-ranking ambassadors. In the early republic they were great landowners and lawyers who were also political philosophers -- Henry Clay, Daniel Webster and John C. Calhoun. In the late 19th and the early 20th century, they were often wealthy industrialists of considerable intellect -- Marcus Hanna, Boies Penrose, Leland Stanford, George Hearst, William A. Clark. After 1913 they were increasingly professional politicians -- Republicans and Democrats who alternated in the Northern states with two-party politics and Democrats of great political skill and legislative acumen from the South. This is the Senate described by Robert Caro in Master of the Senate, his account of Lyndon Johnson as Senate majority leader from 1955 to 1961. Before Johnson became majority leader, the post was of little importance. There was no majority leader at all until 1911. You will search through many histories of the Republican 80th Congress of 1947-49, a Congress which produced major partisan domestic legislation and supported a bipartisan Cold War policy, before you find the name of the majority leader, Wallace White of Maine; the focus was all on committee chairmen like Robert Taft and Arthur Vandenberg. Johnson, operating in his first four years in a Senate closely divided between the parties, exercised extraordinary skills to produce an extraordinary flow of legislation, including the first civil rights act passed since the 1870s. But after Democrats gained 13 seats in the 1958 election, Johnson's power was diminished because liberal Democrats insisted on pressing for measures that, under Senate rules, could not be passed. Johnson's achievements between 1955 and 1959 created the idea, still lively, that the majority leader runs the Senate. A better understanding of the position's power came from the man who held it longest, Mike Mansfield, in a speech intended to be delivered on the day John F. Kennedy was murdered and which he only delivered in 1997 at the first Leader's Lecture, in which he argued that the majority leader was the servant, not the master, of the senators. Many people assume that the majority leader runs the Senate; what he does in fact is schedule business, and his schedule is usually subject to unanimous consent: He can stop things from happening, but he can't get things going if some significant body of opinion wants them stopped.

The Senate in which Mansfield worked and the Senate in which Robert Byrd, Howard Baker and Bob Dole were majority leader was a Senate which was an incubator of presidential ambitions and a legislative arena for legislative entrepreneurship, far less partisan than the House. Many senators crossed party lines on many issues, and the Senate's rules allowed senators of both parties plenty of leeway for legislative achievement -- and for frustration of legislative achievement. But by the late 1990s and in 2000 and 2001, the Senate suddenly became a strikingly more partisan place. One reason was the performance of the two party leaders. Trent Lott, who succeeded Dole as majority leader in June 1996, led an increasingly fractious Republican majority, its fractiousness symbolized by the mistrust between Lott and the majority whip, Don Nickles. Tom Daschle, elected minority leader by the Democratic Caucus by one vote in December 1994, did a superb job of welding Democrats together, keeping in close touch with each Democratic senator and getting them to work together and avoid embarrassing their colleagues. Democratic senators, unlike Republicans, also contributed generously to each other's campaigns.

In House races both parties tend to win about the same number of close races. But there are many fewer Senate races, so there is a tremendous premium for the party that wins most of the close ones. Republicans won a majority in the Senate in 1980 because they won 11 of the 13 closest races. They lost that majority, with the same seats up, in 1986 when they lost six of the eight closest races. After Republicans won a majority in 1994, some combination of skill and luck worked for the Democrats. In 1996 they won five of the eight races decided by less than 5.0% (that includes the January 1996 special election in Oregon). In 1998 they won three of the five closest races. In 2000 they won six of the closest races, including the race in Washington in which the counting was not over until mid-December. Democrats also picked up a seat in July 2000 when Georgia Republican Paul Coverdell died at 61 and was replaced by Democrat Zell Miller. That left the count at 50-50 in the Senate beginning January 3, 2001. For 17 days, while Al Gore was still Vice President, Democrats were committee chairmen; on January 20, when Dick Cheney became Vice President, Republicans were the majority. Then in May 2001 Vermont Republican Jim Jeffords announced he was becoming an Independent and would vote with Democrats to organize the Senate. A new organizing resolution was adopted in June, giving Democrats the chairmanships and a larger number of seats on committees and larger staffs.

The Democrats were able to block quite a bit of legislation but not to pass very much. They failed to pass a budget resolution -- the first time since the budget process went into effect in 1974 that the Senate failed to pass a budget resolution -- and that made it impossible for them to pass a prescription drug bill, because money had not been set aside for it in the 2001 budget resolution and it had to win 60 votes to pass. They managed to obstruct judicial nominations and block the administration's energy bill. But they were not able to manage issues in a way for political benefit. Democrats kept alive the homeland security bill, but Bush refused to accept its personnel provisions, which were strongly supported by public employee unions. Republicans were able to prevent the bill from coming to a vote in September and October and had an opening to argue, as Bush did on the stump, that Democrats were holding up the homeland security bill to protect favored special interests. This proved to be a losing issue for the Democrats and perhaps cost them their majority in the Senate.

In the House, the leader of the party that won the election stayed in office while the leader of the party that lost resigned. In the Senate it was the other way around. Daschle, seemingly stunned by the result, remained the party leader and seemed determined to step up opposition to and obstruction of the Republican majority. Trent Lott, set to become majority leader again, then uttered his famous words at Strom Thurmond's 100th birthday party December 5. Initially, there was little reaction, and Daschle said mollifying words. But soon there was furor among both liberals and conservatives, and on December 20 Lott stepped down. He was immediately replaced by Bill Frist, who as campaign committee chairmen had done much to produce the victories that made the Republicans the majority again. Frist, the only physician in the Senate, had little experience leading the party on the floor, but had been heavily involved in both monopartisan and bipartisan health care issues. But in his first days and weeks he was met with a barrage of partisan attacks. Democrats rejected Republicans' organizing resolution, which favored the majority in much the same way organizing resolutions before 2001 had. And Democrats filibustered the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals -- apparently the first ever filibuster of a lower court judicial nomination. This was the parliamentary equivalent of a declaration of war. This may be the most partisanly divisive Senate in American history.

What accounts for the harsh partisan atmosphere? Sharp differences in the way senators of the two parties see recent political history. In the Democratic cloakroom the history of the last few presidential elections has been one in which Democrats have won great victories from the voters but have been cheated, in the Senate and the Electoral College, out of majorities that should have been theirs. Senate Democrats with their smashing victory in 2000, when they gained five Senate seats, were evidence that they are the nation's choice. The fact that 2000 campaign committee chairman Bob Torricelli's political skill plus a lot of luck produced that majority, with Democrats winning 14 of the 21 closest races in the years in which the senators of 2001 were elected, is overlooked. Polls showing voters backing Democrats' positions on health care, prescription drugs and other domestic issues is only further evidence of their popularity. Polls showing voters backing Republicans' positions on foreign and defense issues are overlooked. Overhanging all this is the controversy over Florida's electoral votes. Many Democratic senators believe that the U.S. Supreme Court's decision awarding the state's electoral votes to Bush was deeply illegitimate and amounted to something like a hijacking of the executive branch. They understand that continued complaints about the result are not politically helpful. But they believe that they are entitled to use their powers under the Senate's rules to prevent what they regard as illegitimate one-party rule.

The view is quite different in the Republican cloakroom. There recent political history looks like one in which Republicans have mostly prevailed by wide margins, in the presidential elections of the 1980s and in congressional elections starting in 1994. The fact that Bill Clinton did win twice and that Al Gore won a plurality of the popular vote is overlooked. Republicans think the Democrats attained their 2001-03 majority of seats by personal tragedy (the death of Paul Coverdell) and good luck in close elections. In this era of increased straight ticket voting, the natural tendency should be for states to favor in Senate elections the party that carried them in the 2000 presidential election; since George W. Bush carried 30 states, Republicans should naturally expect their numbers in the Senate to rise up toward 60. The fact that Democrats have shown skills in winning both seats in Florida and Arkansas and both Dakotas is overlooked. For Republicans the Supreme Court's decision in Bush v. Gore was the only right course and Bush's election entirely legitimate; what was illegitimate was the attempt to thwart him. The fact that so many of their colleagues have a deep and burning conviction that Bush is illegitimate is overlooked. They believe the Democrats, chastised by the voters, have escalated their obstructive tactics, in ways that go far beyond Senate precedent or tradition.

Nothing can dispel this poisonous atmosphere except time and new elections. Presumably the 2004 presidential election will produce a clear and unambiguous margin for the winning candidate, as most presidential elections have. In time, one party or the other will likely have a majority in the Senate larger than 51-49 or 50-50.

Democrats of course hope to regain a Senate majority in 2004. But in early 2003 it seemed more likely that they would be lucky to avoid losses. In 2004, 19 Democratic seats are up and 14 Republican seats. Moreover, more of the Republican senators appeared to have safe seats, leaving 10 Democratic seats looking in early 2003 like they could be seriously contested versus only 3 Republican seats. The likelihood is that Democrats will have more seats to defend than Republicans and will have significantly less money, since they have raised about as much as the Republicans in soft money, now prohibited by the 2002 campaign finance regulation act, but have lagged far behind Republicans in hard money, which is still legal. Moreover, none of the races that seem likely to be seriously contested are in states that were carried by a wide margin by Al Gore, while six of these races are in states that were carried heavily by George W. Bush.

In the meantime, there is always the possibility of a switch in the Senate majority by party switches or by a sudden vacancy in one or two Senate seats. Party switches are not likely so long as the Republicans have a 51-49 majority; the switcher could not be rewarded, as Jim Jeffords was, by a committee chairmanship. But vacancies can change the balance of the Senate. They tend to occur where no one expects them: Georgia Republican Paul Coverdell died suddenly at 61 in July 2000; Minnesota Democrat Paul Wellstone died in a plane crash at 58 in October 2002, 11 days before Election Day. In the 108th Congress the likelihood is that any vacancy will result in a party switch: 29 of the Democratic senators (counting Jeffords) represent states with Republican governors; 28 of the 51 Republican senators represent states with Democratic governors. In some states statutes bar the governor from appointing a successor, but in most states governors can, and presumably will appoint someone of their own party. So sudden fatal illness or tragic accident could shift the balance of the Senate at any time. So remember that no party reliably controls, or can control, the United States Senate.

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