A "Hung" Senate with No Majority on November 4? Could Senate Independents Take Charge, Break Gridlock?

In Australia at present, a small group of Senators, elected not under the party banner of either Prime Minister Tony Abbott's Liberal/National Coalition or the opposition Labor Party led in Parliament by Bill Shorten, but rather of the People United Party or PUP, led by mining and property magnate Clive Palmer. PUP has effectively taken charge because they are in a position to deny the Government a working majority for its legislative proposals. This handful of senators has been in a position since the last Australian election to control the future direction of pubic policy and even the terms of debate on key issues including taxes, environment and immigration. Could the same situation arise in the United States as a result of the upcoming Congressional elections on November 4? Maybe so.

We do not follow a parliamentary system of government like Australia, of course, but our situations are otherwise not dissimilar. In both countries, the lower house of the legislature has a clear and virtually impregnable majority. In Australia, it is the Party of the Prime Minister, however, and in the US, the Republican opposition to the Chief Executive. But the Senate in each country is the key to enacting any legislation and is elected under different calendars of terms just as in the US, so it can swing from time to time away from the pattern of control in the lower house and the Executive branch. Moreover, in the US, it can exercise significant control on the Executive branch, especially in terms of appointment of key officials and judges. It also operates under special rules where debate and appointments can be blocked by a minority of Senators and, for a limited time, even by one Senator.

Occasionally, US Senators have been elected under an "Independent" banner, but Senate rules and traditions push them to "caucus" or join forces in terms electing Senate leadership with the party that holds the majority since that party will control assignments relating to committees, office space and other perks that are important to their states and constituents. This situation has prevailed in the current Congress, where the two Independent Senators (Sanders of Vermont and King of Maine) have caucused with, rather than challenged, the Democratic Party, which holds an arithmetic governing majority sufficient on its own, to elect Senate leadership and control the terms of debate. But the numbers in terms of voting control is expected to certainly change for the Congress taking office in January 2015 with the November 4 election results.

Current polling and statistical analysis suggests at least a 60% likelihood that Republicans will swing to outright majority control of the new Senate. Some surveys suggest their chances are even better: up to 95% according to a late-breaking Washington Post poll. Nate Silver, who famously calculated the 2012 Presidential election results with uncanny accuracy, puts the odds of Republican takeover, however, a bit lower than that: more like a range of 60% to 75%, but also raises the possibility that polling may be inadvertently statistically biased enough to make the outcome closer. Moreover, there are signs that two new "Independent" candidacies in Kansas and South Dakota are making serious inroads into traditional Republican majorities in those two States - enough perhaps to shift the odds tighter. Is there a scenario in which a victory by these candidates could result in a situation where neither Party winds up with even 50 votes in Senate (let alone a majority of 51) or even with a dead heat below 50 - such as 48?

If that were to occur, it would create a serious diversion from the usual situation where Senate Independents simply tag along with the "majority" Party in order to secure favorable committee assignments. The battle lines would start with neither side holding a majority and needing at least three of the four Independents to join up in the case of the Republicans (to get to 51) and two for the Democrats (since they can count on Vice president Biden's votes to break a 50-50 leadership tie). The questions then gets down to whether there is a credible pathway to a 48-48 balance of power resulting from the midterms and when will we know.

Apart from current Senate seats not involved in these midterms, and seats in elections that are universally considered "safe" for one party or the other, there are 16 seats in play in this year's midterms, with varying odds for victory mostly tilted Republican, against the background of 43 safe or continuing Republican seats, 39 Democratic and two Independents, who are currently caucusing with Democrats.

Let's assume for the moment that Democrats win all four seats in which they are generally polled to win fairly easily: Michigan (long-serving Senator Carl Levin's retired seat); Minnesota (incumbent Al Franken); Oregon (incumbent Jeff Merkley in a state Obama won handily) and Virginia (where incumbent Mark Warner leads all polls albeit against a well-funded opponent). That would bring their total to 43.

Doing the same for states where Republicans clearly leads in most polls, they would pick up West Virginia (which shifted strongly to the Republican side in recent years and where long-time incumbent Democrat Jay Rockefeller is retiring); Kentucky (with incumbent and current minority leader leader Mitch McConnell seeking a sixth term); Arkansas (where incumbent Democrat Mark Pryor, a former senator's son, is widely considered to be in trouble in a "Clinton State" that is virulently anti-Obama); and Alaska (where Democrat incumbent Mark Begich is polling consistently behind his GOP challenger and needs a strong turnout in remote Eskimo villages to have any chance). Those four would give the Republicans a total of 47. The Montana race to replace outgoing Democrat Max Baucus is considered so far gone from the Democrats that the Congressional "Roll Call" analysis above already has it in the "safe" Republican base count of 43.

That leaves eight races left with the count at 47 Republican and 43 Democrat and two Independents. Let's assume for the moment that the strong Independent candidates running against Republicans in Kansas and South Dakota pull off what many would have considered upsets until recently. That would up the Independent total to four. In that case, Republicans would need to win in four of the remaining six races to get to a clear 51 seat majority and make the Independents essentially irrelevant to the Senate leadership decision. Let's give them Colorado to start with, where their candidate against incumbent Democrat Mark Udall is polling very solidly, holding a steady lead in mid-single digits. That would get them to 48. But if Democrat Jean Shaheen should hold her seat in New Hampshire by a slim a margin over former Massachusetts Senator Scott Brown, and Bruce Braley manages to win Iowa in Democrat Tom Harkin's old seat against a strong Republican challenger, and incumbent Kay Hagan does the same in North Carolina, that would take the Democrat total to 46, just two behind the Republicans.

The battle would then come down to the races in Louisiana and Georgia, where Republicans are favored but Democrats may stand a chance due to third party candidacies and, in the case of Georgia, the fact that their candidate is the daughter of well-regarded, centrist former Senator Sam Nunn. Two wins would bring the Democrats even with Republicans at 48, but with neither holding a pure majority of Senators. This situation would create maximum leverage for the Independent "Gang of Four" if they could hang together in the "hung Senate."

If two of the four hooked up with the Democrats, that would take them to 50 and a marginal majority with the Vice President's tie-breaking vote. And if three of them caucused with the Republicans, Mitch McConnell would become majority leader with 51 votes. But if the four held out to see which Party would agree to their terms, they would have the chance to demand at least procedural changes to break the partisan divide. For example, by guaranteed up-or-down votes on such gridlocked matters as immigration reform - the previous Senate's approval would not a carry-over - climate policy, tax reform, entitlement reform, the Surgeon General nomination, and so forth.

Unfortunately, if this scenario emerges from the results of the November 4 elections, the Independents would have a lot of time to plot their strategy. Both the Louisiana and Georgia races could be kicked into runoffs in December and January if nobody wins more than 50% on the first round.

A "hung Senate" would be bad for the economy at least in the short run, as was the "hung Presidency" in 2000, which may have triggered a recession. But it could be good in the long run if the new "Gang of Four" makes a breakthrough on gridlock.

By Terry Connelly, Dean Emeritus, Ageno School of Business, Golden Gate University

Terry Connelly is an economic expert and dean emeritus of the Ageno School of Business at Golden Gate University in San Francisco. Terry holds a law degree from NYU School of Law and his professional history includes positions with Ernst & Young Australia, the Queensland University of Technology Graduate School of Business, New York law firm Cravath, Swaine & Moore, global chief of staff at Salomon Brothers investment banking firm and global head of investment banking at Cowen & Company. In conjunction with Golden Gate University President Dan Angel, Terry co-authored Riptide: The New Normal In Higher Education.