Turning the Senate Blue and the Cabinet Red

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President-Elect Joe Biden can flip the Senate by sacrificing his Cabinet.

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With former Vice President Joseph Biden the clear victor of the 2020 presidential election, attention can turn to the U.S. Senate. President-Elect Biden’s ability to pass significant legislation and implement his agenda rests largely on Democratic control of the Senate.

Unfortunately, we will be left waiting to know which political party will control the Senate until at least January 5, 2021, when Georgia will hold two runoff elections.

Al Gross’s loss in Alaska and Cal Cunningham’s loss in North Carolina dashed Democratic hopes for a true Senate majority. At best, Democrats can hope for 50 seats in the Senate, with Vice President-Elect Kamala Harris as a tie-breaker.

That outcome would oust Senator Mitch McConnell (R-Ky.) from his current position as majority leader. McConnell has indicated that, if he remains majority leader, he does not plan to support President-Elect Biden’s policy agenda. And he has promised that he will not only oppose Democratic legislation but also resist President-Elect Biden’s nominees for Cabinet and administrative appointments.

The appointment process for cabinet positions has not historically been a partisan power grab. Throughout the entirety of U.S. history, the Senate has only rejected a President’s nominee nine times. Past Presidents have successfully appointed cabinet members from opposing parties. Both President Barack Obama and President George W. Bush appointed Secretaries of Transportation from the other party. President Obama nominated and the Senate confirmed Republican Robert Gates and later Republican Chuck Hagel as Secretaries of Defense.

But under Senator McConnell’s lead, it seems likely that a Republican Senate majority would prevent President-Elect Biden from appointing permanent cabinet members. If the Senate is controlled by Republicans, will President-Elect Biden be able to get anything done?

One answer can be found in a tweet from comedian Wenzler Powers. He has jokingly suggested that President-Elect Biden nominate Senator Susan Collins (R-Maine) as Secretary of State so that Democratic Governor of Maine Janet Mills would get to choose who should replace Senator Collins. Governor Mills would presumably choose someone from the Democratic Party, which would give Democrats control of the Senate even if the Democrats lose one of the Senate bids in Georgia.

But even if Democrats win both Georgia runoffs, creating an evenly split Senate, President-Elect Biden will not have an easy time legislating. He will not enjoy the 60-seat Senate majority that President Obama had near the start of his first term that enabled Democrats to end debate on legislation and ensured the passage of the Affordable Care Act.

If President-Elect Biden wants to try to stack the deck in his favor at least a little more, he might try to nominate Republican senators to his Cabinet.

President-Elect Biden has already indicated that his transition team is vetting Republicans for cabinet positions. Nominating a current Republican Senator could help with both the Senate confirmation process and with President-Elect Biden’s reputation for bipartisanship. As icing on the cake, it could also help him win potentially several more votes in the Senate.

In 37 states, the governor appoints someone to fill Senate vacancies, and the governor’s appointee serves until the next already scheduled, statewide general election. Of these 37 states, six require that the governor’s appointee shares the political party of the vacating senator. These states include Arizona, Hawaii, Maryland, North Carolina, Utah, and Wyoming. In the other 31 states, with a few exceptions, governors have discretion as to whom to appoint to fill the vacancy.

Based on state law, Democratic governors would appoint replacements for the following senators should they be confirmed to a cabinet position: Senator Jerry Moran (R-Kan.), Senator-Elect Roger Marshall (R-Kan.), Senator McConnell, Senator Rand Paul (R-Ky.), Senator Collins, and Senator Pat Toomey (R-Pa.).

Senator Collins and Senator Toomey are the best prospects for President-Elect Biden to nominate to cabinet positions.

Senator Collins ran for re-election this year based on her contrarian streak. She began to close in on the Democratic candidate’s lead and saved her Senate seat due to her vote against confirming Justice Amy Coney Barrett to the U.S. Supreme Court. As the only Republican Senator that voted against Justice Barrett and as one of only five Republican senators, including Senator Toomey, that congratulated President-Elect Biden’s victory, she may be more likely to accept a cabinet position.

Senator Toomey has said that he will retire from politics at the end of his term in 2022, which makes him another potential target for a cabinet position, since he already plans on leaving the Senate. Nominating Senator Toomey or Senator Collins would force Senator McConnell to refuse to confirm his own colleagues—members of his own party—to keep control of the Senate.

Of course, this idea is a longshot. President-Elect Biden would have to get Senator Collins and Senator Toomey to agree to accept the nomination, with both senators knowing that their departures would likely give Democrats control of the Senate. And McConnell would need to overlook the major political ramifications of these confirmations—which seems unlikely.

President-Elect Biden might also face opposition from the left for these nominations because many progressives are disappointed with his consideration of members of the Republican Party for cabinet positions. But if President-Elect Biden can promise progressives greater Democratic control of the Senate by nominating a member of the Republican Party, perhaps he will endure less criticism.

Much may depend on the outcome of Georgia’s runoff elections in January. If only one Democrat wins, then appointing Senator Collins and Senator Toomey could be President-Elect Biden’s Hail Mary pass if he hopes to have any chance of accomplishing his ambitious legislative agenda during a time of crisis. If the Senate remains in obstructionist hands, his best bet will be to try to take control of the Senate by sacrificing a couple of positions in his Cabinet to the Republican Party.