The victory of Joe Biden and Kamala Harris in the 2020 US presidential election is now official. On December 14 the Electoral College confirmed the state-by-state results, giving a clear majority of 306 votes to Biden and Harris. Donald Trump received 232, the same number as Hillary Clinton when she lost to Trump in 2016. After the vote, Senate Majority leader Mitch McConnell congratulated the president- and vice president-elect. Other senior Republicans followed, finally acknowledging Biden and Harris’s victory.
Despite having stated on November 26 that he would respect the Electoral College vote, President Trump continues to deny that he lost. On January 2, he went so far as to pressure Georgia’s Secretary of State, Brad Raffensperger, urging him to “find” enough votes to reverse his narrow defeat in the state. Given that Trump has filed and lost at least 59 lawsuits disputing the outcome of the November 3 election, he and his remaining supporters’ latest maneuvers are likely to be similarly futile.
When Joe Biden and Kamala Harris are inaugurated on January 20, their challenge will be to govern a deeply divided country. This will require working with their allies in Congress, and while Democrats lost about a dozen seats in the house, they will retain their majority. As for the Senate, of 100 seats, 50 are held by Republicans and 48 by Democrats. Two seats in the state of Georgia remain open because no candidate in either race won more than 50% of the vote in the November election. According to Georgia law – a legacy of the state’s resistance to desegregation in the 1960s – in such a case the two leading candidates must face off in a runoff election on January 5.
If the Democrats win these two Senate seats, there would be an equal number of seats for each party, 50. The American constitution states that in the case of a tie the vice president shall have the deciding vote. This provision would give the Democrats the effective majority since the vice president will be Kamala Harris.
While media insist that “the stakes could not be higher” for the Georgia runoffs, the reality is more complex: the Constitution gives a narrow but real edge to the president, with or without a majority in Congress, and it gives a significant role to the minority in the Senate. So while this election in Georgia will decide whether the Republicans or the Democrats control the Senate, it will not necessarily determine if Joe Biden and the Democrats are able to govern the country.
To understand why, one must look more closely at the very particular power granted to the Senate by the Constitution. The Constitution defines a federalist system of checks and balances that gives the Senate a major role. In addition to its legislative function, it has the power to give or withhold “advice and consent” to the president, meaning that he or she needs Senate approval of appointments to key executive-branch positions (cabinet and the heads of federal agencies) and nominations of federal judges.
Confirmation of candidates for the executive branch
Historically, candidates for such positions have been overwhelmingly approved by the Senate at the beginning of a president’s first term, with a 95% confirmation rate over the past 28 years. However, there are few historical precedents for a first presidential term with a Senate controlled by the opposing party. The last time this happened was in 1989 with the election of George H.W. Bush where, for the first time, a candidate for a first-term president’s cabinet was rejected. But today is markedly different, with the United States more politically partisan and polarized than ever.
If anything, four years under President Trump have shown that traditions can be broken without much warming. Some Republicans have already expressed their opposition to some of Biden’s announced appointments. However, there is hope since a simple majority is enough to confirm a candidate, and Republican leader Mitch McConnell has sent some positive signals. Democrats hope that even if they retain control of the Senate, Republican senators will only oppose a limited number of candidates. And, in the worst-case scenario, Joe Biden could possibly follow Donald Trump’s lead and install “acting secretaries” who do not need confirmation.
Confirmation of judges
On the other hand, a Republican-majority Senate could offer little deference to Biden’s judicial nominees. At best, a few moderate judges in the lower courts could be appointed. This would not, therefore, offset the many judicial appointments made by Trump, who appointed almost a quarter of all active federal judges and three Supreme Court justices, most of them young and highly conservative. Mitch McConnell made this a central focus of his strategy during Trump’s time in office since the system of checks and balances gives a great deal of power to the federal courts and the Supreme Court.
This means that regardless of who controls the Senate, the ability of Democrats to implement laws on some issues like electoral regulation, gun control, health care extension, climate change, or even health measures against the coronavirus is likely to be seriously constrained by conservative judges, especially in the Supreme Court. And even with a Democratic majority in the Senate, Democrats will be limited in their ability to appoint judges by the very fact that there are far fewer judicial vacancies, including in the Courts of Appeal or in the District Courts.
A major judicial reform such as expanding the number of judges on the Supreme Court is also unlikely to happen because the president will not have the support of centrist Democrats such as Joe Manchin. And, of course, if the Republicans control the Senate, no debate on reforms will ever make it to the floor.
Governing with a majority Senate
From a legislative point of view, a simple majority of 51 votes is in theory enough for the Senate to pass a law. But in reality, apart from legislation related to budgetary rules, any senator can block a law by using the filibuster. It then takes a “closure” motion with a super majority of 60 votes to remove the filibuster, a procedure widely used in recent decades.
The procedural rules of the Senate can be changed by a simple majority, as it was in 2013 and 2017. Doing away with the filibuster has been widely discussed among Democrats, but with a Democrat in the White House, Republicans will have no interest in doing so. And some Democratic senators such as Joe Manchin have already announced their opposition to a vote ending filibustering, even if there is a Democratic majority.
Whatever the majority in the Senate, Democrats will have to take into account a number of conservative members in their own camp, such as Joe Manchin and Kyrsten Sinema. On the other hand, the US legislative system is built to encourage bipartisan compromise, and it is these same senators who will be useful for compromises with the more moderate Republicans. A recent analysis by political scientists James M. Curry and Frances E. Lee challenges the conventional wisdom that a Senate majority is crucial to governing. Their findings suggest that far more happens when one party has a slim majority.
As is often the case in politics, interpersonal relationships are likely to play a major role. The long and amicable relationship between Joe Biden and Mitch McConnell, sometimes even described as a friendship, bodes well for issues such as immigration and infrastructure. But it should not be forgotten that McConnell is determined to maintain Republican influence. Will he repeat his stated goal in 2008 to make Obama a one-term president by blocking all legislation or will he find areas to compromise with President Biden?
The lingering damage after Trump
For the Democrats, winning the two seats in Georgia, a state that remains conservative despite changing demographics, will be a challenge but not an impossible one. Trump’s continuing false claims that the elections were rigged might actually help them, deterring some Republicans from voting, especially since he has been highly critical of Georgia’s governor and secretary of state, both Republicans.
But rather than the Georgia Senate runoffs, Trump’s primary focus is on the confirmation of the Electoral College election results by both houses of Congress on January 6. While this is almost always a mere formality, if the election is contested by members of both houses, a vote must be taken in each chamber. A number of Republican representatives have announced that they will do so as well as a dozen senators, including Ted Cruz and Josh Hawley. They do not have the majority required to upend the election, but a vote would force every Republican to take a stand for or against Donald Trump. This would weaken the party and could even divide it, something McConnell very much does not want.
Trump, desperate to remain in the White House despite having lost his bed for reelection, has turned the January 6 ceremony into a test of loyalty for all Republicans, including Mike Pence, who as vice president is required by the Constitution to announce the election results in Congress. The president has threatened to try to end the political careers of Republicans who have recognized the election result by claiming he would support other candidates in the 2022 primaries. He has even called to the streets, asking his supporters to come for a “wild” protest in Washington DC. While right-wing extremist groups such as the Proud Boys have promised to be present, it remains to be seen whether mainstream Republicans will come in any significant numbers.
In the long run, the main difficulty for Biden may not be which party controls the Senate, but the lasting damage caused by Trump’s false claims of election fraud. Three-quarters of Republicans, or 60 million Americans, say that they continue to believe despite a complete absence of proof that the election was “rigged” or “stolen”. While deeper surveys offer a more nuanced perspective, the Biden-Harris administration could well be in for a bumpy ride over the next four years.
The Fact check US section received support from Craig Newmark Philanthropies, an American foundation fighting against disinformation.