Today, Senate Republicans cleared a procedural hurdle for a vote on the confirmation of Betsy DeVos as Secretary of Education on a strict party-line vote. But when her actual confirmation comes up next week, the odds favor a tie vote, since two Republicans (Susan Collins and Lisa Murkowski) have announced they intend to vote against the controversial education-privatization advocate, who has aroused the kind of intense and highly organized opposition that lights up phones on Capitol Hill. No Senate Democrats have indicated an interest in coming to DeVos’s rescue.
If this is the situation when the actual confirmation vote occurs, Vice-President Mike Pence will have to do something Joe Biden did not have to do for eight years: vote to break a Senate tie. And in fact it would be the first time a tiebreaker has been used in a confirmation vote.
According to Senate records, there have been a grand total of 244 Senate tiebreakers cast by veeps, with the very first, John Adams, being the all-time leader with 29 such votes. The last tiebreaker, by Dick Cheney, occurred on a bill to roll back alternative-minimum tax rates in 2008; it was Cheney’s eighth.
Part of the reason Joe Biden never had to break a tie was the large Democratic margin in the Senate for the first two years of the Obama administration. But from 2011 to 2015, the routine deployment of filibusters by the Senate GOP minority made 60 votes, not 51, the threshold for enactment of legislation. And then after Republicans took the Senate, votes typically were not held on Democratic legislation the leadership did not favor, and were not held on Republican legislation everyone knew would either be filibustered or vetoed by Obama.
With Republican “trifecta” control of the federal government, the floodgates have opened, and the narrow margin of GOP control of the Senate means tie votes are a lot more likely. In addition, the decline in use of the filibuster, initiated by its elimination for executive and non-SCOTUS judicial appointments by Senate Democrats in 2013, will mean the sheer volume of close Senate votes will increase. One could easily imagine Pence having to break ties over the confirmation of Supreme Court Justices (either including or after Neil Gorsuch) if the filibuster for that type of vote is also eliminated, and for such high-profile, high-impact bills as the budget-reconciliation measures Republicans plan to use for most of their 2017 legislative agenda.
So Pence had better grow accustomed to the path from his office to the Senate floor. And let’s don’t entirely ignore the remote possibility that Donald Trump’s veep will someday break a tie against the will of the Senate GOP conference. Anything’s possible with these people.