The Just Security Podcast

The Balance of Power in a New Senate

December 09, 2022 Just Security Episode 6
The Just Security Podcast
The Balance of Power in a New Senate
Show Notes Transcript

On Dec. 6, Democratic Senator Raphael Warnock won a special runoff election in Georgia against Republican candidate Herschel Walker. Warnock’s victory gives Democrats a slim, but solid, majority of 51 to 49 in the Senate. The new majority allows Democrats to control everything from investigations and oversight to key legislation and committee placements. 

Arizona Senator Kyrsten Sinema’s announcement that she will register as a political Independent is unlikely to impact the power balance in the next Senate. The Democratic majority already includes two Independents who caucus with them, Senators Bernie Sanders of Vermont and Angus King of Maine. 

To unpack the many implications of Warnock's win, we had Andy Wright, a member of Just Security's Editorial Board and partner at the law firm K&L Gates in Washington, D.C. Andy is an expert on Congressional oversight and previously served in senior legal roles at the White House and on Congressional committees. 

Show Notes: 

Paras Shah: Hello and welcome to the Just Security podcast! I’m your host, Paras Shah. 

This week, Democratic Senator Raphael Warnock won a special runoff election in Georgia against his Republican candidate, Herschel Walker. 

News clip: The country’s longest midterm campaign is now over. Senator Warnock: “After a hard-fought campaign, you’ve got me for six more years!” 

Paras: Warnock’s victory gives Democrats a slim, but solid, majority of 51 to 49 in the Senate.  

News clip: A critical win for Democrats, this is what it means for the balance of power in the Senate. Democrats now have an outright majority. 

Paras: Allowing them to control everything from investigations and oversight, to key legislation and committee placements. To unpack the many implications of Warnock's win, we had Andy Wright, a partner at the law firm K&L Gates in Washington, D.C., and an expert on congressional oversight. Andy previously served in senior legal roles at the White House and on Congressional committees. 

One quick note before we get started: On December 9, Arizona Senator Kyrsten Sinema announced that she will register as a political Independent. That decision is unlikely to impact the power balance in the next Senate. The Democratic majority already includes two Independents who caucus with them Senators Bernie Sanders of Vermont and Angus King of Maine. Press reports, including a statement from a White House official, indicate that Sinema will continue to caucus with Democrats, just like Sanders and King.

Andy, so how exactly does Senator Warnock's victory on Tuesday change the political dynamics in the Senate?

Andy Wright: It’s going to really fundamentally alter the power dynamics in the Senate. People think of the Democrats having had control because Vice President Harris could break ties when there was a 50-50 vote, but that consumed a lot of floor time. 

Paras: What is floor time? 

Andy: One of the most precious resources the Senate has is actually the floor of the Senate, like you see on C-SPAN — where all the senators are in there on the desks. And so they have, certain types of procedures are required to be conducted on the floor and can't be deferred to committees or delegated to committees.

And so that's a pipeline bottleneck for the Senate in terms of votes that need to occur. Maybe it can be, you know, budget reconciliation issues. One of the hardest jobs for a senate leader, either Schumer or McConnell, is to manage the floor time. And you wanna really minimize the number of things that you have to bring to the floor and so it's a resource that you want to conserve. And under a 50-50 power sharing agreement, that bottleneck becomes a lot more pronounced.

Paras: Okay. So the need to control floor time is one thing that will change. What else can we expect? 

Andy: The resource allocations for the committees will be fundamentally different.

So instead of having a judiciary committee that, say, has 10 Republicans and 10 Democrats and can deadlock on a more controversial nominee for a judgeship. And then it would have to go through a clunky procedure to the floor to be able to move forward. Now, the judiciary committee will, say, have 11 Democrats and nine Republicans. And, so on a party line vote, the committee will have had action and that affects the procedures downstream. So, judicial confirmations, executive nominations and confirmations will be actually easier now than they were previously because committees will be able to do their traditional function of voting  candidates out, and then less floor time will be involved. 

Paras: We hear a lot in the news about congressional investigations and oversight, but what does that actually mean? 

Andy: Congress — both the Senate and House — have the power of inquiry. It is rooted in the US Constitution and flows from the same reason that Congress has the biggest library in the world.  The theory being: in order for it to be able to legislate wisely and effectively, it needs to have the power to learn things.

So investigative power is, it flows from that fundamental understanding and the way it expresses as a procedural matter is: Typically a chamber will delegate to its committees under its rules specific areas of jurisdiction. So, you know, say for example, Senate judiciary committee would look at antitrust and funding the judiciary and how many judicial districts we will have,  And then it will have the power to inquire about various factors that would allow that policy judgment to be informed. And so the committees all have powers that look very litigation-like. So they have hearings, they have deposition power, they have subpoena power. 

But the purpose of those investigations is very different than a DOJ or a state prosecutor because you're not adjudicating culpability or liability, you are establishing facts to help inform a legislative process. And it's an inherently political process. So it's this weird intersection of law and politics. But, typically, the way an investigation actually works is a committee chair or subcommittee chair will send a letter to an entity — often in the government, sometimes in the private sector — that indicates that they're undertaking an inquiry in a certain area within their jurisdiction. And ask for information, request documents, or a briefing, or invite people to a hearing and then try to get that information presented to Congress. From there there can be negotiations or escalations depending on how the subject of the investigation or the witnesses react to those requests. And so you're typically bargaining in the shadow of a subpoena power. 

Paras: A subpoena is a request for information. Like documents or someone's testimony. It's an important legal tool that Congress can leverage. 

How did subpoenas work when the Senate was evenly split between Democrats and Republicans?    

Andy: So only where there was bipartisan agreement could committees credibly threaten subpoenas without having to use precious floor time for the whole Senate to be able to issue them.

And so there were a fair number of bipartisan investigations. I'm thinking about the Senate Health, Education and Labor Committee doing its COVID pandemic preparation investigation on a bipartisan basis, the Homeland Security Committee on the Senate side also did some bipartisan investigations with Peters and his Republican ranking member.

But, I think, now, you know, there can be a little bit more of a partisan flavor to some of those investigations with a credible threat of a subpoena coming out of the committee without having to garner that extra collective action. So it's pretty significant, if a committee chair in the Senate now indicates that they want a voluntary response to a request for information, the shadow of that subpoena power is gonna be a little bit darker. It's a little bit more looming and likely rather than a subpoena where, you know, if they can't get the buy-in of their Republican counterpart, it would have to go to the floor and then they'd have to get leadership involved, and it would be a lot easier to delay if you're someone who's trying to resist  that investigation. 

Paras: What can Senate committees do with that information? 

Andy: As the committee gathers the information, they can do different things with it. They can present it to the public, often they can write legislation, they can do referrals like we're gonna see potentially with the January 6th committee doing criminal referrals about conduct that they've uncovered during their investigation that they think may require criminal investigation.

Or they issue reports. And so they can have these sort of fundamentally informative reports that are supposed to help lay out the findings and make the recommendations about what policy conclusions should flow from what they found. Famously, like the 9/11 Commission, I think we're going to see a gigantic one coming out of the January 6th Committee in the House. I think also like the Senate Intelligence Committee, you know, thousands and thousands of pages in their report related to rendition, detention and interrogation — also often called the torture report.

So, reporting is an important function that comes out of these investigations and it can end up driving legislative policy or other regulatory action.

Paras: So we know that Republicans will get control of the House of Representatives. What about the dynamics between the Senate and the House? What can we expect there? 

Andy: Stepping back just to talk for a moment about the bicameral dynamics. So one additional thing I think to think through about investigations n the new Congress, is that Republicans obviously having taken over the House will have subpoena power. And they've done a lot of press, and signaling, and sent a lot of letters foreshadowing their investigative agenda which will obviously start with the Biden family, and move out to Biden policy initiatives, and and private sector entities that are doing business with the government — the Biden administration — and are beneficiaries of policies that Republicans disfavor. The Senate side is gonna have the opposite side of that coin. So now the incentive structure on the Senate, in addition to pursuing their normal investigative agenda when they had control, they will also have an incentive in some cases to either engage in oversight that is designed to counter the messaging coming from Republican  investigations, and in other cases to finish the work potentially of House investigations run by Democrats that will no longer be continued.

First, and foremost, among those would be the January 6th Committee. So, you know, people expect that the January 6th Committee will either be disbanded or turn into something very different that looks more like an “investigate the investigator's” operation on the House side. I could see the Senate chair — maybe Senator Durbin or others — picking up the mantle of the January 6th committee with their newfound subpoena power and continuing that work on the Senate side now that the House effort will likely come to a close.

Paras: What do you expect from Republicans? How will they respond to all of this?

Andy: So, I think they'll be doing a lot of reinforcing messages of House investigations, they'll present some of their own  priorities, and, maybe, almost as a way of trying to get interest from House members who might be able to take the investigations further. I'll give you a good example of this: Senator Charles Grassley, Republican from Iowa, was the senator who launched the Fast and Furious investigation about gun trafficking in the Southwest border, and had some whistleblowers that came to him when he was in the minority on the Senate side, and he ended up catching the Department of Justice in a representation that turned out not to be true.

And I had worked on this matter when I was in the White House Counsel's office. That became a big, full blown investigation that Darrell Issa, who became a chairman in the House, picked up from Grassley, got a handoff and took that all the way to the point of the then-Attorney General Eric Holder being held in contempt of Congress.

So, I think we could see some things like that where there's reinforcing messages for House investigations by Republicans in the Senate, and also counter messaging to Democratic investigative priorities. 

Paras: Even with the majority, Democrats will still face some challenges. What are they?

Andy: Legislative priorities are going to be, you know, really challenging. And, I think, especially if you look at some of the must-pass legislation, like funding the government, like the debt limit, those are gonna be bills where the Republicans are gonna have a lot of leverage and they're gonna be able to get some priorities pushed forward that Democrats won't like. So that's one big challenge just, generally, legislative priorities. 

Second, I think is defending the administrative and regulatory actions of the Biden administration. You know, the courts have been increasingly skeptical, especially with a new conservative majority on the Supreme Court, of regulatory action and there have been some cases that have really undermined regulatory structures that could broaden out. And so we're already seeing letters from Republicans in the House that are questioning the power of various agencies to engage in the rules that they're doing. And, I think, Democrats on the Senate side will probably be doing some messaging trying to bolster, for example, climate regulatory action from their legislative position. But, it will be a challenge because, that's largely not going to be able to be fixed legislatively if the courts overturned some of those executive actions that I think the administration will start to lean into. So, I think that's a big challenge as well.  

Paras: Andy, that’s a lot to keep track of and pay attention to, but Just Security will be covering all of it. Thanks so much for joining. 

Andy: I appreciate being able to join you today.

Paras: The Just Security podcast is produced in partnership with NYU's American Journalism Online program. AJO trains students to become world class journalists, no matter where they live or work. Find out more about AJO, and how you can apply, in our show notes.  

This episode was hosted and produced by me with co-production and editing by Tiffany Chang and Michelle Eigenheer. Our music is the song “The Parade” by Hey Pluto! Special thanks to Andy Wright. 

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