As we await final confirmation of Georgia's Senate runoff results, one thing is already known. The Senate, evenly split 50-50 between Democrats and Republicans, will have a new leader on Jan. 20—Vice President Kamala Harris.
Harris should exercise her constitutionally-guaranteed role as the Senate's president, and preside over the Senate as vice presidents routinely did until 1937. If the Democrats fail to take back the Senate majority, this role will be crucial to the nation's survival. But even if both Democrats Jon Ossoff and Raphael Warnock formally win and take their seats, the excess power afforded by tradition–not law or rule–to the majority leader is irrevocably contaminated by Kentucky Republican Mitch McConnell's abuse and must be reclaimed on behalf of the American people.
McConnell's abuse of delegated presiding power has amputated the Senate from Article I of the Constitution. He has used that mutilation to erase the House's power, as well. In truth, America has had no functioning legislature. That must change. The Constitution both contemplates and demands it.
Once seated as the Senate's constitutional presiding officer, Harris can exercise power far beyond merely breaking tie votes.
Gridlock is a relatively new crisis. The Senate used to work better, and was designed to work better. Once seated as the Senate's constitutional presiding officer, Vice President Kamala Harris can exercise power far beyond merely breaking tie votes. She can break gridlock by recognizing any senator to bring any House-passed bill to the floor. She can do that without altering a single Senate rule with a procedural vote. And she should.
Moving Bills to the Senate Floor
Vice President Harris will become president of the Senate (automatically) under Article I, Section 3, which also recognizes that the Senate can "chuse [sic] their other officers," including majority and minority leaders. But Article I, Section 3 does not give such "other officers" the vice president's power to preside, which includes the power of "priority recognition"—that is, allowing a senator to speak on the Senate floor, and thus to move a bill into debate.
Until the mid-20th-century, the vice president used the presiding officer's power of priority recognition to develop the Senate into the world's greatest deliberative body, cultivating a forum for open debate and compromise that transcended partisan lines. When the House passed a bill, any Senator recognized by the vice president (acting as presiding officer) could move it to the floor, be seconded by another senator and proceed into debate and a vote.
The standing rules of the Senate give its presiding officer abundant power. But they do not require the majority leader to be that presiding officer. Delegation of priority recognition from the vice president to the majority leader is not required by any written rule of the Senate or by any of its standing orders.
McConnell's 'Informal Practice'
As vice presidents took on greater executive duties, they simply began delegating the chair to chosen senators. The Senate's official history acknowledges that this "informal practice" crystallized into the ongoing delegation to the majority leader in 1937, thus creating an emperor without clothes. A delegated power can be un-delegated.
Since 1937, the routine delegation of the VP's presiding power to the majority leader has become a habit that none question—like cigarette smoking in the 60s. But the malignant cancer of delegation to Mitch McConnell is not required by the Constitution. And when delegation is chronically abused to block bills from the Senate floor, it is the duty of the Vice President to reclaim her presiding power. Obstructing is not presiding. It is stifling the air from our legislative lungs.
You may ask: "Wouldn't reclamation of the vice president's constitutional presiding power require a change in the rules of the Senate? And doesn't that need a two-thirds majority vote—which we won't have, even if Warnock and Ossoff both win their Georgia runoffs?"
No. Delegation of the vice president's constitutional presiding power is found nowhere in the Senate's Rules. Rule XXIII, "Privilege of the Floor," only determines who can be recognized by the presiding officer, not who can act as that presiding officer.
Power to Recognize Speakers
Vice President Harris, in her capacity as presiding officer, can recognize a senator to move House-passed bills—efforts McConnell has repeatedly stifled, most notably with the much-needed $3 trillion COVID-19 relief bill that the House passed in May but McConnell never brought to the Senate floor.
Harris recognizing Schumer, or any other senator, could allow such bills to come before the Senate while posing no conflict with Rule XXIII. Nor would it conflict with any other standing rule, because the majority and minority leaders would retain their non-presiding powers. And any spurious points of order blocking such action could be rejected by the vice president herself—as the presiding officer.
Constitution Trumps Senate Rules
If a bare Republican Senate majority purported to override that rejection, VP Harris would have standing to challenge in court. Any Senate rule that purported to bar her from presiding would fail under the Constitution's Supremacy Clause.
The Constitution is superior to the Senate rule–not the other way around. Some may contend, "Didn't the early Senate successfully rebel against the VP's presiding powers?" But that argument overlooks Marbury v. Madison, which didn't exist in America's early years. That case instituted the judicial branch's power to review legislative actions and void them if unconstitutional.
Accordingly, we need to look at Senate rules that might be deployed to restrict the presiding power. Like any other government rulemaking, it must be within the scope of its statutory authorization (or, here, constitutional authorization). The Constitution endows the Senate with power to "chuse its other officers" but not to "chuse" the presiding officer, specified to be the vice president. To the extent a GOP majority attempted to suspend or amend its rules to block or defang Harris, it would violate Art. 1, Sec. 3 and be voidable by judicial process.
We must not forget that the majority leader's presiding power is derivative from and delegated by the VP. A glass cannot be smaller than the water poured from it. If the Senate limited the presiding officer's powers, those limitations must apply to the majority leader and the VP equally, or conversely, are an unconstitutional limitation of the VP's presiding power. We have ample precedent in the executive agency context to analyze whether a rulemaking exceeds its statutory authorization. The Constitution being the supreme statute under the Supremacy Clause, a rulemaking that made the derivative majority leader power larger than its originating source in the Vice President's power would violate that body of well-settled precedent.
Let's clarify the above with a hypothetical. If the VP took presiding power and used it to give priority to a senator, for purposes of moving a House-passed bill to the floor, and the Senate purported to override that action by 1) self-recognizing the majority to do something different, and then 2) sustaining a point of order limiting the VP's presiding power, how would that play out?
A floor fight on this topic could generate a Supreme Court petition, and in this hypothetical, Vice President Harris would have standing to petition for it. I believe the court would hear it and resolve it in her favor.
Would that take more than a minute? Sure. Is it worth teeing up and doing? Good God, there are hundreds of blocked House-passed bills that would save and improve American lives. Many have wide popular support and would peel off enough GOP votes to pass the Senate, or cause the rejecting senators to lose their seats if their votes were on record. If the GOP retains a bare majority after today, then of course it's worth doing. It is imperative and demanded, not just by law, but by basic human decency.
Stopping Abuse
Reclaiming of presiding power would not require the vice president to attend every session, or strip her of executive duties. She would remain free to delegate on an individual basis to a senator chosen to move a specific bill forward. She could even restore presiding power to the majority leader, on condition that it not be further abused. Original Senate bills could still move through committee for preliminary analysis, pursuant to existing Senate rules. Motions to proceed and for cloture would still be governed by Senate Manual Section 74 (standing order). Amendments to such House bills would still proceed in conference under Cleaves' Manual of the Law, by precedents incorporated in Senate Manual Sec. 200, et seq.
How would Americans benefit if our nationally-elected vice president followed my suggestion to break gridlock and House-passed bills (and others) to come to the floor? It would not guarantee every bill's passage, especially if the Republicans retains a bare majority or if a Democrat such as West Virginia's Sen. Joe Manchin votes with the Republicans. But it would make compromise more likely, through markup and reconciliation.
The number of opposing votes may change when those votes must be cast on record, after robust open debate. Public disdain and electoral consequences may deter public blocking of a bill senators are willing to block behind closed doors. And open floor votes and debate would eliminate the travesty of a single man elected by a single state's voters blocking legislation that the vast majority of Americans demand.
Obama's Missed Opportunity
Imagine, for example, how different our Supreme Court might look if Merrick Garland's nomination had been moved to the floor and debated. Many Republicans supported him in the past, and the seat would have been his, if the presiding power had been reclaimed by then-Vice President Joe Biden.
Imagine how glowing our national picture might have been if bills with genuine bipartisan support, like immigration reform and election protection, had passed both chambers during the Obama administration through a robust process of debate, amendment and markup, presided over by a nationally-elected vice president—rather than dying on the bleak desk of a man who proudly declares himself America's "Grim Reaper."
One may ask: "if this is indeed possible, why didn't Biden do this when Obama was president?" My primary answer is, "Perhaps they just didn't think of it." But also, for all of his many assets, President Obama governed as an incremental compromiser who didn't rock the boat much. Perhaps this resulted from the burden of being the nation's first Black president. But Obama also demonstrated a genuine affection for bipartisanship and regular order that I'm not sure Biden will share after Jan. 20. We have been shown over and over that bipartisanship and regular order are one-way shackles–the GOP does not consider itself bound. I do not believe that the co-ticket of Biden and Harris could have materialized if Biden did not commit to transcend the limitations that Obama accepted. Biden was more progressive and pugnacious than Obama on LGBT rights and other issues. We have no basis to assume that he would block his VP from a crucial role in saving the nation.
To sum up, the Senate's historic role as "world's greatest deliberative body" requires that open deliberation take place as described in the Constitution—not behind closed doors, and certainly not inside the head of one man elected by 1.2 million voters in the 26th most populous state in the Union.
For the past decade, the American people's entire Article I legislative power has been usurped by Mitch McConnell—contrary to the Constitution's organizing principle of self-government.
Our vice president has a duty to take back presiding power on behalf of the American people. In a pandemic where 3,000 lives per day hang in the balance, that duty is clear. Once seated, she should exercise or delegate her constitutional presiding power only in a manner that allows American policy to move forward.
End the nightmare of majority leader tyranny, Madam Vice President. Please. Do it for the people.
Lisa Kerr is an attorney and social worker who lives in West Virginia and tweets as @thatshockratees. An earlier version of this story appeared on the website Prevail by Greg Olear.