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Senator Fetterman’s Absence Might Spell Trouble for Senate Committees

Senator John Fetterman (D-PA) announced yesterday that he will undergo treatment for clinical depression requiring hospitalization, potentially for weeks. The Bipartisan Policy Center extends its best wishes for the senator’s treatment. However long it lasts, his absence might disrupt Senate business, particularly for three of his committee assignments: Agriculture, Nutrition, and Forestry; Banking, Housing, and Urban Affairs; and Environment and Public Works (Sen. Fetterman’s other assignments—the Joint Economic Committee and the Special Committee on Aging—have no legislative authority).

Sen. Fetterman isn’t the first to need to step away from the upper chamber for health reasons. As BPC has previously noted, “the Senate has several strategies available in accordance with rules and precedents to compensate for an absent member.” These include processing business by unanimous consent, proxy voting (limited to committees), and pairing votes. This issue was especially relevant in the last Congress when the Senate was split 50-50 and any absence had the potential to delay or derail legislative business. Last Congress, though, the Senate also had special rules in place to smooth the functioning of the chamber given the even split. Those special rules expired at the end of the 117th Congress, making any absence more precarious for Senate Democrats, who hold a 51-49 majority in the 118th Congress.

Committee Considerations for Absent Senators

Most Senate committees, including Sen. Fetterman’s, are currently divided with a one-seat majority for Democrats. Consequently, those committees will be divided evenly between the parties in his absence. Proxy voting remains available in committees, but may not be as useful as Democrats might hope.

Senate Rule XXVI allows each committee to provide its own rules for the casting of proxy votes, provided that:

  1. Absent senators must be notified about the question to be decided and he or she has requested that his or her vote be cast by proxy.
  2. Committees may prohibit proxy votes from being cast on votes to report a measure or nomination to the full Senate.
  3. If a committee allows proxy votes to be cast on a motion to report, votes by proxy cannot be decisive in ordering the measure or nomination reported, except to prevent it.

If these committees consider a measure or nomination while Sen. Fetterman is absent and the vote ties along party lines, his proxy vote cannot be the deciding one to report the matter to the full Senate. Without bipartisan agreement, legislation and nominations could be stalled in these three committees, potentially including President Biden’s replacement for Lael Brainard on the Federal Reserve Board of Governors, which is under the jurisdiction of the Banking Committee.

Last Congress, under S. Res. 27, the power-sharing agreement for the 50-50 Senate, tied votes in committees could be overcome using a discharge procedure, which allowed Senate leaders to bring the measure or nomination to the floor in cases where a majority of a committee did not support doing so. The same was true for committee chairmen who could discharge measures from subcommittees to the full committee in these cases. These extraordinary procedures are not available in the 118th Congress as S. Res. 27 expired at the end of the 117th.

Quorums

In addition to votes on measures and nominations, Sen. Fetterman’s absence could affect committee quorums. Senate Rules allow committees to set their own quorums for conducting business with important minimums, detailed in the Congressional Research Service table below.


Source: Congressional Research Service

Given Sen. Fetterman’s physical absence, if all committee Republicans or some other combination of half of the members do not attend a business meeting, the committee will be unable to report a measure or nomination regardless of his ability to vote proxy. Republicans used a similar boycott tactic in 2022 to delay committee consideration of a Federal Reserve nominee.

Floor Considerations for Absent Senators

Sen. Fetterman’s absence will likely have less of an impact on Senate floor proceedings, as one absent Democrat keeps them in the majority (50-49). If one more Democrat is absent, there would be a 49-49 tie, Vice President Kamala Harris would be able to cast the tie breaking vote. Article I, Section 2 of the Constitution states that, “The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Another strategy available in Sen. Fetterman’s absence is the use of paired votes on the floor. BPC previously explained how pairing works:

“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 challenge with pairing votes, however, is that it relies on senatorial courtesy. On a highly divisive matter, a member of the opposite vote position may not be willing to pair with an absent member if it advances the measure or nomination. In a situation where another Democratic senator plans to vote opposite his or her party, though, he or she may be a more willing pairing partner. In Sen. Fetterman’s absence, Democrats cannot rely on this mechanism entirely. Finally, as in the 117th Congress, the Senate allows no mechanism for proxy voting on the floor.

Currently, the Senate plans to recess for a state work period from February 20-24th so the full impact of Sen. Fetterman’s absence will not be seen until early March. Depending on how long his treatment lasts, the impact may be short-lived.

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