November 3rd, 2010 | by NIGEL JAQUISS News | Posted In: CLEAN UP, Politics

What Happens If Both Legislative Chambers Are Equally Divided?

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Although last night's results are not final, it appears that Democratic super-majorities in both houses (36 to 24 in the House and 18 to 12 in the Senate) will morph into deadlocks in both chambers.

The Oregon House has never before been deadlocked. The Oregon Senate has been tied 15-15 just two times since Oregon became a state (1957, 2003). In the 2003 legislative session, Republicans and Democrats shared control through a "divided power contract." Under this form of power-sharing, one party selects the presiding officer. In 2003, Democrats selected Sen. Peter Courtney (D-Salem) as Senate President. Republicans selected as Senate President Pro-tem—essentially, an assistant president—Sen. Lenn Hannon (R-Ashland). Hannon got staff and a variety of powers that allowed his party a say in how bills moved to committees and keep tabs on state agencies.

Sen. Kurt Schrader (D-Canby) chaired the Senate's most powerful committee, Ways and Means, which writes the state's budget. But Republicans got the chairmanship of each Ways and Means subcommittee and the vice-chairmanship of full Ways and Means. The parties shared control of the powerful Rules Committee and agreed that committees would include an equal number of members from both parties, which they usually do not.

Those arrangements resulted from a negotiated deal between the parties and are not specifically spelled out in statute or legislative rules, so lawmakers have a great deal of latitude in how they divide power.

One item to watch if the House is deadlocked: Republicans ostracized two members of their caucus, Reps. Greg Smith (R-Heppner) and Bob Jenson (R-Pendleton), for supporting income tax increases at the end of the 2009 session. Both men survived primary challenges, thanks in part to help from Democrats so their roles in dividing up power in the House could be fascinating.



The National Conference of State Legislatures provides some helpful context for how other states have dealt with deadlocked chambers:
Just because a legislative chamber faces partisan stalemate, however, doesn't mean the business of the state comes to a halt. The chamber still must elect leaders, appoint committees, consider bills and continue other work. The process just doesn't always happen according to convention. Legislators have figured out unique ways to break deadlock over the years. Here are the common methods of dealing with tied chambers.

Coin toss. In Wyoming, a coin toss is the preferred method for tie breaking. It was used to determine the winner of individual seats as well as to help untie a chamber in 1974.

Lieutenant governor's vote. The lieutenant governor presides over the Senate in 25 states. In all but one of the states, the lieutenant governor is able to break ties. A lieutenant governor's vote broke organizational deadlocks in Idaho (1990) and Pennsylvania (1992). There was speculation that the lieutenant governor would determine party control in the Virginia Senate in 1995, but a power-sharing agreement between the political parties was negotiated instead. [Oregon, of course, does not have a lieutenant governor].

Statute. Three states passed laws that provide direction when a legislative body ties. In South Dakota and Montana, top chamber leaders are selected from the party of the governor.

After experiencing a partisan split in 1989, the Indiana General Assembly enacted legislation to make sure the House “wouldn't again be hindered by a tie.” Now, Indiana statutes provide that the speaker and the principal clerk be chosen by the members of the House affiliated with either the governor's political party or the party of the secretary of state if the governor was not up for election. The law was used to organize the House when it deadlocked in 1996.

Negotiated agreement. Most ties have been settled when the two political parties negotiate a shared power agreement. The types of agreements have varied.

* The "co" agreement. Used by the Washington House (1978, 1998 and 2000), Indiana House (1988), Iowa Senate (2004), Michigan House (1992), Nevada Assembly (1994), New Jersey Senate (2001), North Carolina House (2002) and Oklahoma Senate (2006). These are power-sharing agreements that added the prefix "co" to leadership and committee chair titles. The dual leaders and committee chairs alternate the times during which they preside. Indiana, Nevada and Washington alternated daily; Michigan switched every month; and New Jersey changed every two months.

* The divided power contract. Used by the Arizona Senate (2000), Minnesota House (1978), North Dakota House (1976), Oregon Senate (2002), and Virginia Senate (1995) and House (1997). These agreements divide the power between the parties. Under this form of power-sharing, one party selects the presiding officer, the other the chair(s) of the most powerful committee(s); lesser committee chairs alternate party affiliation. For example, in Minnesota, the speaker of the House was Republican, but the chairmen of the powerful rules, appropriations and tax committees were Democrats. In the Virginia Senate, a Democratic lieutenant governor presided, the Finance Committee got co-chairs; six committees had Democratic chairs, and four had Republican chairs. The Virginia House of Delegates elected a Democratic speaker and then adopted a power-sharing agreement. Under the agreement, 19 House standing committees had co-chairs and equal party representation. However, if the co-chairs of any standing committee could not agree on how to conduct committee business, a special rule kicks in. It specified that one party's chair presided the first year of the biennium, and the other party's, the second.

* The negotiated resignation. Used by Florida Senate (1992) and Maine Senate (2000). In Florida, the state constitution reads, "Each house shall...biennially choose its officers including a permanent presiding officer selected from its membership." So when the Senate faced a partisan stalemate in 1992, lawyers and rules experts determined that the constitution's language precluded the use of "co-presidents" in the Senate. Members agreed that each party would hold the presidency for one year. But to be constitutional, only one could be elected. So the body elected a Republican president, who tendered an unconditional, irrevocable resignation to take effect 11 months later, and also elected a Democratic president pro tem, who would take over when the time came. The Maine Senate used a variation on this type of power-sharing.
 
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