The Vice President can break a tie in the Senate, which is especially important when the Senate is split 50-50, as it is now. Say a President gets ill enough that he recognizes that he's becoming temporarily incapacitated (or the Vice-President and the majority of the Cabinet so recognizes, for instance if the incapacitation comes on suddenly). The VP would become Acting President; but would she still be able to cast the tie-breaking vote in the Senate? The Twenty-Fifth Amendment provides, in relevant part,
And the body of the Constitution provides:
This suggests that, when the VP "exercise[s] the Office of President of the United States," she doesn't exercise the office of "President of the Senate," and therefore lacks the power to cast her "Vote" in the Senate when the Senators are "equally divided." And the 1985 Office of Legal Counsel opinion agrees:
Here is the Congressional exchange to which the OLC was referring:
Sen. Birch Bayh was apparently the principal author of the Twenty-Fifth Amendment, so his position is likely to carry some weight (not binding, but persuasive). And it seems that he and the OLC were implying that the VP would also lose her tie-breaking vote, since that comes only from her position as President of the Senate. I e-mailed Prof. John Feerick to confirm this, and he agreed. Now if the President dies or resigns, the Vice-President actually becomes President, and a new Vice-President would then presumably be nominated and confirmed by a majority vote of both Houses (though the Senate being 50-50 might require a good deal of compromise on this score). But if the President is merely temporarily incapacitated, there's no provision for choosing a new temporary Vice-President / Senate tiebreaker. That wouldn't be a serious problem for short incapacities (for instance, when a President is in surgery), but might be for longer ones. Now I suppose one could argue that the Senate President pro tempore would be able to cast two votes, when the VP is Acting President of the U.S.: One in his capacity as Senator, and one in his capacity as Vice-Vice-President. But apparently that has never been the understanding. (Recall that, before the Twenty-Fifth Amendment, when a President died in office, the VP became President and the office of VP remained vacant; there were many years during which this was so, and apparently there was just no tie-breaker then.) [UPDATE: Seth Barrett Tillman reports that such multiple voting in colonial and state offices did happen in 1700s America; but apparently that didn't end up being adopted as the custom in the U.S. Senate.]
Vice President Harris cast her 25th tiebreaking vote with the passage of the Inflation Reduction Act on Sunday, moving her within six votes of the almost two-century-old record held by former Vice President John Calhoun. The Constitution stipulates the vice president also serves as president of the Senate and has the authority to break ties, which has occurred with some regularity over the past year and a half given the 50-50 makeup of the upper chamber. Harris has already cast more tiebreakers than almost any other vice president, except for John Adams and Calhoun, who served from 1825 to 1832. Calhoun has held the record of 31 tiebreaking votes since his tenure as vice president under John Quincy Adams and Andrew Jackson. John Adams, who served as vice president for nearly eight years under George Washington, cast 29 tiebreakers. Harris, however, has cast more tiebreakers than Adams or Calhoun at the equivalent times in their vice presidencies. She has primarily broken ties to confirm President Biden’s nominees, although she has also appeared at the Senate dais for other 50-50 splits, like when she voted to begin debate on the American Rescue Plan. Harris’s role as tie breaker came into the spotlight again on Sunday, when she broke the tie to advance a long-awaited $740 billion bill that includes provisions to raise corporate taxes, confront climate change, lower prescription drug costs and reduce the federal deficit. Her vote was met with applause from the chamber. The bill’s passage in the Senate first required the support of all 50 Democrats, given all Republicans were united in opposition. The Biden administration and Senate Democratic leadership had been hoping to pass a larger reconciliation package last year, dubbed Build Back Better, but the bill was doomed after Sen. Joe Manchin (D-W.Va.) declined to support the package. Manchin had been negotiating behind closed doors in recent months for the slimmed-down reconciliation package, which passed the Senate on Sunday after gaining the support of Sen. Kyrsten Sinema (D-Ariz.), the final Democratic holdout. The reconciliation package now heads to the House for consideration. UK morning radio host dies on the air Kelly, Masters tied in Arizona: progressive pollHow often Harris casts a deciding vote during the remainder of Biden’s term will largely depend on the outcome of this year’s Senate midterm elections. Even Senate Minority Leader Mitch McConnell (R-Ky.) has predicted a close race for the Senate majority. “I think it’s going to be very tight. We have a 50-50 nation. And I think when this Senate race smoke clears, we’re likely to have a very, very close Senate still, with us up slightly or the Democrats up slightly,” McConnell said Wednesday on Fox New’s “Special Report.”
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Who breaks a tie in the senate vote
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