Executive Bargaining and Party Control of the Elusive 60th Seat

On a freezing January morning, Barack Obama took the oath of office and became the 44th President of the United States of America. Enjoying the largest Democratic Congressional majorities since Lyndon Johnson in 1964, President Obama had planned an aggressive legislative agenda that included, among other big ticket policy changes, implementing a national health care plan. Later that frigid afternoon the sudden illness and hospitalization of Senator Edward “Ted” Kennedy, D-MA, served as a tragic harbinger to political observers of the dynamic nature of Senate composition.

News media accounts of the senate election took special pains to focus on the identity of the 60th Senator because of the pivotal role that specific individual plays in the passage of legislation. However, the first year of the 111th Congress showed how sensitive the pivotal position is to Senate composition. At the start of the Congress with one race unresolved and facing months of legal challenges, a cloud of three moderate Republicans emerged as potential occupiers of the 60th seat. The President only needed the support of one of the following Republican Senators, Snowe (ME), Collins (ME), or Spector (PA). After Senator Spector switched parties—thus guaranteeing his vote, the President only had to seek the support of either Snowe or Collins. However, once the Minnesota Senate race had been decided in favor of the Democratic challenger, Al Franken became the 100th Senator. This pushed Senators Collins and Snowe out of contention making Nebraska Senator Ben Nelson the pivotal Senator. Nelson remained as the pivotal Senator until Kennedy’s death, putting either Collins of Snowe back in the seat. The Massachusetts governor’s appointment of Senator Kirk pulled the 60th seat back to Nelson. The surprise victory of Scott Brown in the special election to permanently fill Kennedy’s seat put the 60th seat firmly under Republican control.

My paper is about the executive bargaining strategies employed by President Obama’s team as the single member changes in Senate composition changed the party controlling the pivotal 60th seat. Initially, the President had to employ a bipartisan strategy. Once the Democrats owned the 60th seat, the President could engage in a purely partisan bill. I will argue that ultimately the loss of Kennedy’s seat in the special election led to passage of the Patient Protection and Affordable Care Act and the use of reconciliation rules to pass the second health care law, the Healthcare and Education Reconciliation Act of 2010. A second point of my paper is to understand the incentives facing non-pivotal legislators and how they try to increase the value of their support and extract extra concessions from the administration.

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