Absent Senators: Pairs, Proxies, and Procedure

Nobody said that a 50-50 split in the Senate would be easy. Democrats currently have the slimmest of majorities in both chambers and a full legislative agenda, meaning every vote counts. Recently, Senator Ben Ray Luján (D-NM) suffered a stroke, which rendered him unable to be present on the Senate floor for votes for about 4 weeks. Can a majority continue to advance its priorities in a 50-50 Senate with one vote absent or does the Senate necessarily come to a screeching halt? There are several strategies available in accordance with rules and precedents to compensate for an absent member.

1) Unanimous Consent
Most of the business conducted in the Senate is by unanimous consent. Unanimous consent allows the Senate to operate on the assumption that all members agree to proceed in some manner unless an objection is raised. This prevents all 100 members from having to cast a vote for every action the Senate takes. Unanimous consent can be used for almost anything from procedural matters to passing a measure but if a Senator objects, then the motion fails.

In the absence of a member, a Senate Majority Leader might use unanimous consent to act without taking a vote. This would likely have limited applications, however, given that it takes just one member to prevent the action from occurring. Continued use of this approach would require extensive negotiations and concessions with members. 

One way unanimous consent works is the Senate “hotline”, an informal process in which the party leaders and staff contact each senator’s office in hopes of gaining tacit approval for the use of unanimous consent. The hotline is not enshrined in the Senate rules, but it is a tool sometimes used to bypass procedure.  

While unanimous consent is used to resolve many questions on the floor, more contentious legislation is not likely to gain approval this way.  

2) Proxy Voting
Proxy voting is a method used in some legislative chambers that allows absent members to designate another member who can vote on their behalf. Proxy voting is currently not permitted in the Senate for roll call votes, only during committee business. At the beginning of the COVID-19 pandemic, as the Senate searched for ways to continue operating amid social distancing and other health precautions, Senators Rob Portman (R-OH) and Richard Durbin (D-IL) introduced a resolution allowing the use of proxy voting due to the emergency. The resolution was not agreed to. 

While the Senate did not adopt proxy voting, the House reintroduced the practice for the first time since the 1990s and continues using it to this day. House Minority Leader Kevin McCarthy (R-CA) brought a lawsuit challenging the practice; however, the Supreme Court declined to hear it and the practice remains in place.  The outcome of the lawsuit reaffirms that the chambers have broad authority to set their own rules and procedures should the Senate consider proxy voting in the future. 

3) Pairs
In the past, when senators have been unable to be present on the floor for several reasons, senators have used a practice called pairing to make sure the member who is not present has their opinion expressed. When pairing, the absent senator will “pair” with a present senator who is on the opposite side of the issue in question. During the roll call vote, the present senator will state that they have paired with a senator who is not in the chamber and will verbally state that if the absent member were there, they would vote in the affirmative or negative on that issue. In turn, the senator in attendance will withhold their vote by voting “present.”

Pairing relies on both precedent and senatorial courtesy. The practice is permitted by Senate precedents, but no senator is required to pair with an absent colleague and, therefore, is extending a courtesy to the absent member. Pairing works by balancing the absent senator’s intended vote and a withheld vote from a member on the opposite side, creating a similar outcome as if the absent senator were in the chamber. The practice was recently in action when Senator Mike Rounds (R-SD) voted present to pair with Senator Ben Ray Luján (D-NM) on the confirmation of a new FDA commissioner.  

Why is a diverse set of voting options important?  
A 50-50 split in the Senate sets up a precarious majority for any party. One member’s absence can tip outcomes easily. Unexpected circumstances like a global pandemic, or worse, a catastrophic attack rendering members incapacitated, demonstrate the need for alternative procedures and practices that will allow the Senate to operate under temporary circumstances. So far, through the pandemic and the recent health-related absence of Senator Luján, the Senate has gotten by. And fortunately, Senator Luján has been able to return to his duties in Washington. 

Still looming and unaddressed, however, is how the Senate might continue to operate if a majority of members were incapacitated or unable to reach the Senate floor to vote.