>> "washington journal" continues. host: jay waller joins us on what a 50-50 senate divided means for the incoming administration. i know you spent years working on capitol hill and you live on capitol hill. your thoughts on the events of last wednesday? guest: i think like many millions of other americans, i was just shocked. i am still unpacking it. it is truly shocking to me. it really was a sad day and a tragic day for all americans. host: one of the topics i know you study is the rule, the

institution of the senate. we are getting a warp speed lesson on the rules of the senate when it comes to an impeachment trial in a very short window. what is your thought on if democrats in the house say they will impeach the president this week. can a senate trial be held in the timeframe before he leaves office? guest: one thing i have learned in the senate is that anything is possible. it's important to acknowledge it is very difficult. the procedural posture will bar it from starting. if the house passes articles of impeachment prior to january 20 at 1:00 p.m., one hour after joe biden is sworn into office and president trump leaves office. of course, the senate can agree to waive the current procedural posture by unanimous consent.

and there has been discussion of having a trial after president trump leaves office. it has only happened twice before in american history. and also the impeachment trial in the president's cabinet. in both of those instances, there is no conviction. it is literally unprecedented for the senate to convict an official that is no longer an office of the charges in an article of impeachment. host: and a trio of republican senators you have worked for. what is your read on republican senators having enough republican senators to convict on impeachment charges? guest: it is not clear. it could be closer than this time last year. it is not clear that two thirds of the senate are willing to vote to convict.

i suspect once the president leaves office and is no longer capable of being removed from office, you get into this unprecedented territory. i suspect the climate will shift and you will have fewer republicans that will vote to convict the former president in that instance. and many democrats are wondering why they are chewing up valuable floor time and agenda time during president biden's first 100 days of unified government to litigate and adjudicate these past disputes with the former president. host: unified government will start january 20 at noon. when was the last time it was such slim majorities in the house and senate? only 11 seat majority in the house for democrats. guest: these narrow majorities are more or less the norm when we do have unified government these days.

that being said, the last time you had a 50-50 split in the senate, the narrowest of narrow margins was in 2001. in 2003, a 51-vote majority. a 50-50 split does not happen very often. it's only the third time in american history we have seen a 50-50 split. host: what should viewers know about how the senate is run during a 50/50 split? guest: the senate has to organize itself. under rule 25, they said at the standing committees. they are the workhorses of the congress. they have members that continue in those spots. and you have new members after elections that come in and need to be added to committees. the majority party is presumed to have more seats. they have to organize the chamber. that simply means naming the members of the committees, setting the ratio to favor the majority party, and approve the

higher funding for the majority party and new office space. that is the first thing you have to do. when you have a 50/50 split, and the senate, you can't pass anything without a simple majority and it can be filibustered. it just creates an added complication for party leaders to get an agreement that can pass. they usually passed by voice vote. host: chuck schumer will be the majority leader in the senate. it was last week before the attack on the capital when he was talking with reporters about the senate agenda and what he will do as a leader of the chamber. >> [inaudible]

>> as i told you, it's one of the things we want to do. we campaigned on it and are strongly for it. we think the american people need it. >> how does this change the calendar and the way forward on nominees? >> look. obviously, with democratic control, the ability for joe biden to move nominations forward will be easier. the calendar i have not begun to look at yet. >> have you talked about the moment where you learned you would be the majority leader. progressives are pushing you to nuke the legislative filibuster. can you make that promise? >> we senate democrats know we face one of the greatest crises americans have. we are united in wanting big-bold change. we are discussing ways to get that done. host: james waller, those --

wallner, comments on stimulus and nuking the filibuster. guest: there is so much in these comments that illuminate how the senate will operate and why i think the senate will continue to operate like it has in the past. the last thing the future majority leader said was we will sit down as a caucus. that underscores the fact that the senate floor is no longer an arena where these decisions are adjudicated and made. they are made at party lunches and party members themselves meeting in caucus and making a decision to come out and go forward to line and get the agreement through. i don't expect that to change. and for nominations, if you look at the record over the last four years or the last two years, the bulk of the nominees have been confirmed on a bipartisan basis.

nominations are confirmed, scheduled for the floor. in this case, chuck schumer and mitch mcconnell. prior to the november elections, senate republicans spent a bulk of their time processing judicial nominees supported by democrats overwhelmingly and had a majority of republicans opposed to them. the rhetoric surrounding the nominations process does not match up with reality. i expect that process to continue to be fairly agreeable. you will have hot button controversial supreme court nominee seats and maybe an appellate seat every now and then. almost 80% of the judicial nominations, i expect to see cooperation. with regards to the filibuster and the nuclear option, chuck schumer is in a difficult spot.

if you look at the rhetoric surrounding the georgia election on both sides, somehow it means the difference between lightness and dark between the republic falling into the ocean and not, the civil fact is that is not the case. the expectations are that because democrats have the majority they can do a whole lot of stuff that they, quite frankly, aren't going to be able to do because they don't agree. with regards to the nuclear option, at a minimum, you have to have 50 democrats that want to support and pass the underlying issue and 50 republicans that are opposed. and you have the vice president that ultimately will cast the deciding vote. i'm not sure when you look at these issues what they are. i'm sure it could happen and i expect they might. but it is not clear what those issues are. host: james wallner with us until the bottom of the hour this morning.

if you have questions about how the senate runs in a 50/50 split, now would be a debt -- great time to call. democrats, (202) 748-8000. republicans, (202) 748-8001. independence, (202) 748-8002. talk a little bit about vice president kamala harris's goals? guest: the vice president is an extremely important your in the senate. the senate can't pick the speaker. the vice president can sit in the chair whenever he or she wants. vice president harris, under the constitution, has the authority of casting tie-breaking votes. that is extraordinarily important. when the senate deadlocks on an issue, it dies. you have to have a majority to support something to proactively pass. it is possible for democrats and

now why they are considered to be the majority party. this is important with regard to the congressional review act. republicans used this mechanism to a great degree in the last administration. and if you have 50/50 split's in this scenario, you can have vice president kamala harris cast the tie-breaking votes to overturn regulations put in place by president trump and his administration. host: this is linda in mississippi. democrat, good morning. you are up first. caller: you say it doesn't make much difference if they have agreement when the judges are nominated. mitch mcconnell had the majority and let no one go through unless

he wanted them to go through. during the obama years, he did not allow any of obama's judges to go through. he kept it vacant including merrick garland. the democrats would do more than they had been able to do in confirming biden picks if mcconnell had been the leader. host: thank you for bringing up judicial nominations. guest: linda, that's a great point and thank you for making it. there will always be differences. when i say it will continue largely the same, i mean in the broad outlines that the senate will function. mitch mcconnell does not have the power as majority leader, minority leader, or senator to block judges. the only way you can block a judge from being debated is for

senators on that committee to refuse to report that judge. mitch mcconnell does not serve on the judiciary committee. he has no say. he can urge them and influence them and try to convince them to do so, but he ultimately has no power to do so. democrats can move to discharge judges from committee. that is an important power they have and one that democrats did not use with merrick garland. they could have forced the issue. i suspect if they had forced the issue that they would have won that debate because, quite frankly, a majority of republican senators did not agree with the strategy to prevent a vote on merrick garland. it is an important point to make. with the last 50/50 split, there is a power-sharing agreement. one of the things that they put in this agreement is that if a committee deadlocks, all committees would be split evenly

-- if a committee deadlocked on a bill or a nominee, that nominee could be discharged and put on the floor and have an up or down vote on whether or not to debate it. and after four hours of debate, you could not filibuster. it is important because it makes it easier to discharge nominees. combining that with the nuclear option for judicial nominees and executive branch nominees that both democrats and republicans have used, that creates an interesting scenario. it may be a new agreement between mcconnell and schumer. host: nothing we like better than digging through the vast c-span archives. you mentioned after the 2000 election, the 50/50 split. here is tom daschle at a trent lott sharing news about their power-sharing agreement in early 2001.

>> this really comes down to two words. good faith. i hope not only by our actions today but our actions over the course of the next two years, we can demonstrate without equivocation that that good faith was warranted. we face many challenges in the days and weeks ahead. we face many uncertainties. as we face those challenges and those uncertainties, it is my hope that we can look back upon this moment and say if not for the fact we demonstrated good faith today, we could not continue to demonstrate as they arise. >> instead of there being a filibuster next week on what senator daschle would have offered or the 21st senate filibuster for days or weeks.

we are not going to start off that way. we will give it a chance to work. we will be fair and have a good faith effort. i have enjoyed working with tom. it is never easy for either one of us. we have very diverse conferences, both of us. i'm sure his people are not delighted with all the details of it. but i think it's an important part. and maybe some other rule that they should've addressed. as we go along, i think we could've had a good discussion -- i think we've had a good discussion. this is how we will get our work done. host: on that power-sharing agreement, will we see a similar

press conference with chuck schumer and mitch mcconnell? guest: i don't know about a press conference, but i believe that they are going to try to adhere to that template is much as possible. you have two party leaders in negotiations right now, divided conferences. and you need an agreement to make the senate work. incidentally, this is the backdrop of the very contentious presidential election. so there are a lot of similarities between that moment and now. one interesting detail that i think is very interesting with regard to 50-50 senate splits. unlike then, our committees today are virtually not working. they are not doing much. the senate does not do a lot of legislative business. if you recall when i mentioned

an organizing resolution, organizing the chamber means populating the committees. that is important to because the committees are important places where things happen. in today's day and age, the staff and leadership work with leadership and leadership staff behind closed doors to negotiate compromised agreements at the very last minute that are put on the floor. all senators are prevented from offering amendments and they are presented with it. that is that. i'm not sure why a power-sharing agreement is as important as it was in 2001. host: denise out of new york city. democrat, good morning. caller: i have a question. i don't believe that the impeachment is a waste of time. i understand that, from what i'm hearing, nancy pelosi says that she has the votes. if he is impeached, wouldn't

that mean he could not come back in four years and we wouldn't have this problem of dealing with him and his behavior in another four years? guest: the constitution specifies the senate can convict in an impeachment trial. the result of that can be removal from office and if they so choose, they can bar that official from holding future office. to bar a private citizen from holding future office who is not currently in office would be unprecedented. the senate has had to impeachment trials where the officials were no longer an office at the time of the trial. in both of those instances, the officials were not convicted. article two of the constitution is specific about who is subject to convention -- conviction via impeachment. federal officials. it would be unprecedented and i

believe unconstitutional for the senate to bar a private citizen who is not able to be removed from office from running for future office. your point about a waste of time, i don't believe anything the congress does is a waste of time. these are important issues that americans feel deeply about and care passionately about. they want to see them adjudicated and that is why we have a congress, house, and a senate. i think we must step back and ask ourselves, what are the consequences of these decisions if they go in one direction versus another. host: it takes three votes to bar someone from running, the house majority, the two thirds conviction in the senate, and a vote afterwards on barring him or her from holding future office? guest: correct.

the last vote is a simple majority. but this is an important vote -- point to make. the senate can't bar someone that it doesn't first convict. you have to ask yourself, can you remove someone from office who is not currently in office? they don't have the option of going down a menu and say that we want to impeach this person and richard nixon is still president, but we are not going to kick him out of office, he can't run for office in the future. that doesn't make a lot of sense. the constitution is very explicit that it is an option to bar impeached officials that have been removed from office from running in the future. but that is a lower threshold with a simple majority vote. host: texas, republican line. caller: it is a conservative and

libertarian think tank, so i think i should get an objective and non-squishy answer from you. why do elected republicans not push the fact that the president and the republicans did nothing wrong in his speech. c-span, msn, and the mainstream media leave out the whole speech. i don't know why they do that. to the house members that objected to the votes from troubled states even when they have selected their own alternate electors. i heard roy blunt and some other people, they moderate these simple facts. standing tall with a spine and pointing up to the american people exactly what they did on a constitutional level. i don't understand that. and maybe you have an answer from a conservative libertarian

think tank. guest: first, they do things that i would personally disagree with on a policy level. but in regard to this terrible and tragic event last week, my view is that you are right to the degree that using procedures that are authorized under a law that is over 120 plus years old do not themselves create violence. it's when people opt to do violent things that create violence. too much political conflict does not spill over into violence. it's when people make a concerted and conscious decision to resolve their disagreements in a different way than debate. that is when you see violence. if you look at president trump's speech, it is similar to speeches aoc has given and tea

party senators have given. it is how people react. with that being said, if you look at the totality of what was happening, the case against president trump right now is that it is the totality of his denying the election results, the totality of how he has talked about that, how his rhetoric has been delivered over four years in office. i'm not agreeing or disagreeing with that, but i can see how members can look at that in the heat of the moment -- try to put yourself in their shoes. it has to be terrifying to have that happen regardless of if you are mike lee, susan collins, ted cruz, or anybody else. it's important to remember that these are humans trying the best they can. they are also reacting in the moment.

in 20 years, we will have to look back and see what happened and see if we are closer to the mark than not. it's important to not take rash action and not sent -- set new dangerous resident -- precedent like telling officials they can't run for office. we have used the threat of sedition and insurrection to silence debate going back to the beginning of the devout -- of the founding. host: on the democrat line, good morning. caller: calling as a resident of brooklyn where chuck was hours illumined -- our assemblymen. i helped lead forms for him and the local congregation and the local democratic club before he became a senator. i don't want to add to his burden by asking a question that might put a focus on some areas

of contention, but we know he has the left-wing wing of the party trying to press him one direction and a very contentious right wing of the country he is trying to unite within the senate. we have seen the evidence of right wing influence in the insurrection where the confederate flag was brought into the rotunda for the first time in history. it puts a finer point on the fact that trump was put in office by maximizing the advantage of white population states against minority population states. and there is pressure from his left flank about doing something to reform the electoral college so that we are a more democratic country in the eyes of ourselves and the rest of the world. they don't really view us as a real democracy anymore. one of the reasons is that our math is so byzantine.

it lends itself to these kind of conflicts and inequities. many people in black communities and large populations have less of a 3/5 vote that they were supposedly captive for in the 3/5 compromise. my question is, how much, if at all, while he is trying to build a working relationship with mcconnell and republicans across the aisle and while trying to maintain his position with the left flank of his own party, can he raise issues of reforming the electoral college in this term or as majority leader of the senate going forward? host: thank you for the question. guest: first of all, good for you for getting involved. i wish more americans would get more involved and i think that speaks to the health of our system and that is the solution in my opinion.

with regard to the split between liberals and conservatives in the senate and everything in between, -- longer than any other leader and he did and exquisite job. he is often seen as the greatest leader of all time and he saw his john mack is a factory foreman whose job was to direct the production line to produce certain widgets but it was someone who would stand back and facilitate the per dissipation of members in the process, and that is how he was able to pass things like the civil rights act of 1964 when lyndon johnson could not do something similar. the voting rights act of 19 625. robert byrd followed in his footsteps, when this country was having incredible conflict across the country on a whole host of issues, intense conflict, the senate had one of its most productive legislative periods in history. i may not agree with everything it came out with but the constitution wasn't written to make any one person happy. what i think we need to focus on

is how we make sure the senate as an institution stays healthy, ensure it can do the same thing. with regard to the electoral college, i would remind you that the way in which we vote in this country is we have a popular sovereignty but as john marshall tells us, the people vote in states and that is where they are organized. there is no national popular electorate in the sense of one person being elected by everyone. maybe we need to have that, but that is a debate that can be had. i would submit to you that when you have a situation where the majority of the country can vote for one person, it is a lot easier for the country to fall into this cycle, this destructive cycle that the framers were trying to get out of, trying to prevent the tyranny of the majority as well as the tyranny of one person. you have this very convoluted thing called the electoral college that i think creates and safeguards a space for our politics to occur.

there is no one person in this country that has voted -- that is voted for by a minority against the wood -- against the wishes of a majority, in districts and states and counties, it does not exist. there is no person that is elected by minority and electorate we have. there could be reasons to reformat and there are reforms out there and chuck schumer can certainly raise those reforms and help educate americans in the effort to try and have a constitutional amendment, we can have a debate and to be honest, that is what makes this country great and we haven't had those debates in recent years. as someone who supports the electoral college and does not want to see it go away, i would welcome that debate because of think it is always better for us to debate our disagreements and try to resolve our disagreements and adjudicate our concerns. host: james welner -- james wallner "washington journal" continues. host: michigan state law professor brian kalt, is back with us.