The surprising amount of power Vice President Kamala Harris could have

Harris could have the power to pass Senate legislation without a single Republican vote

Harris is sworn in at the presidential inauguration on Wednesday (Reuters)

By the time the sun sets on Joe Biden’s first half-day as president, he will have signed nearly twenty orders, memoranda, and other documents to begin combatting what he and his advisers describe as “a quartet of crises” after four years of Trump. There is an ongoing pandemic, a resulting economic downtown on par with the Great Depression, climate change, and continued racial inequality.

While Biden can use executive authority to roll back many of his predecessor’s initiatives and enact some of his own, experts say it is vice president Kamala Harris’s position as the Senate’s presiding officer that could make all the difference. Her position is significant to his ability to fully address those four crises and maintain control of his legislative agenda.

Presiding over the Senate and breaking tie votes are—aside from remaining alive in case the president does not—the vice president’s only constitutionally mandated roles in the federal government. The position was once considered such a political backwater that 32nd VP John Nance Garner described the office as “not worth a bucket of warm piss”. However, the world’s most famous second banana role has, in the modern era, become more and more visible as VPs—starting with Walter Mondale—have taken on increasing levels of responsibility.

Harris’ ascension to the vice presidency and the swearing-in of two Democratic Senators from Georgia brings the upper chamber to a 50-50 split under Democratic control. This results in multiple ways she could use her gavel to frustrate Republican obstruction and help push through Biden’s ambitious immigration reform, infrastructure funding, and coronavirus relief packages.

Harris’ tie-breaking vote could also prove crucial should Democrats decide to move Biden’s agenda items through budget reconciliation, which is a process the Senate can use to pass spending bills without the need for a 60-vote supermajority. It’s a tool that has been used to pass big-ticket items under the past two administrations, including the 2017 Tax Cuts and Jobs Act under Trump and the Affordable Care Act under Obama.

However, there are limits to what can be done under reconciliation. This is because of a Budget Act provision known as the Byrd rule, which prohibits any provision that has no budgetary effect from being included in a reconciliation bill.

Should such provisions be included in a bill considered under reconciliation rules, any senator can invoke the rule on the Senate floor to strip it out of the bill, with votes from three-fifths of the Senate needed to reverse such a decision. That’s where Harris comes in.

Normally, if a senator seeks to strike part of a reconciliation bill under the Byrd rule, the vice president defers to advice from the Senate’s expert parliamentarian when acting as the body’s presiding officer.  

However, there’s a catch: the vice president doesn’t have to listen to the parliamentarian.

With the Senate split 50-50, Harris could simply ignore recommendations to accept points of order against provisions in a reconciliation bill that represent Democratic priorities but violate the Byrd rule.

And without 60 votes to overrule her, non-budgetary priorities such as voting rights and statehood for Washington, DC and Puerto Rico could potentially pass without a single Republican vote needed.

One former Democratic leadership aide said he doubts that Biden or Harris would have much interest in breaking yet more norms after four years of Donald Trump’s norm-breaking presidency and Kentucky Republican Mitch McConnell’s similarly disruptive tenure as Senate majority leader.

“It would certainly be possible, but I would find it highly unlikely that Joe Biden’s vice president would do such a thing,” the aide said. “Because the story would clearly be written that she ignored the parliamentarian’s advice … and Biden is not going to want to govern that way, and neither will Harris, in my opinion.”

Both Republican and Democratic Senate aides have expressed concern about the possibility that Schumer will instead choose the more straightforward path of ending the legislative filibuster.

When most people think of the filibuster, they imagine a scene similar to the 25-hour speaking marathon mounted by Jimmy Stewart’s character in Frank Capra’s Mr Smith Goes to Washington.

That was certainly the case at one point. However, in recent years, a looser interpretation of Senate rules has all but eliminated the “talking filibuster” in favor of what amounts to a senatorial veto on legislation that requires no action on the filibustering senator’s part.

James Wallner, a former Republican Senate staffer who is now a senior fellow at the R Street Institute and writes extensively on Senate procedure, said Harris could singlehandedly undermine Republicans’ use of the filibuster as currently practiced by simply enforcing the Senate rules as they are written.

He opined that the Senate’s current practice gives the appearance of leadership, asking senators’ permission before putting legislation to a vote.

“I think the problem is that … if you can't get unanimous consent to schedule a vote, you just assume that there's a filibuster, and nobody uses the rules,” he said. “Nobody walks around and says, ‘do we have your permission to do something now,’ but that's how it looks on the outside. And that's how the members themselves telegraph it because it makes it easier for them to blame others for why they're not doing anything.”

Wallner posited that if Harris decided to put in the time to preside over the Senate and enforce the body’s rules on voting and debate, it would “take care of the problem [of the filibuster] very aggressively.” But he cautioned that she would need buy-in from Schumer and Senate Democrats.

Ultimately, he said the vice president could also force action on Biden’s agenda by simply calling for the Senate to vote rather than allowing the body to spend most of the time in “quorum calls” while waiting for senators to deliver speeches on matters unrelated to the business at hand.  It’s a course of action he recommended to McConnell several years ago to force through more judicial confirmations in less time.

“Why are majority Democrats or Republicans putting the Senate in a quorum call and then complaining about filibusters?” He said. “Just stop putting the Senate in a quorum call, stop speaking, stop going to the floor and speaking on unrelated issues, force the minority party to go to the floor and speak, and when nobody is on the floor to speak from the minority party, then call the vote…it’s very easy, and it gets around the filibuster.”

Ultimately, the choice of whether to use her role as president of the Senate to personally shepherd Biden’s agenda through the upper chamber will be Harris’ choice alone. But Wallner took pains to stress that she does, in fact, have a choice.

“The vice president can actually speed up the senate very, very, very much, but to do so you have to have legislation and other things on the floor because the vice president can't force senators to take things off the calendar,” he said. “But once the floor debate starts, the vice president can force the Senate to act.”