Support The Bulwark and subscribe today.
  Join Now

If McMullin Wins and Won’t Caucus With Either Party, What Happens to His Committee Assignments?

Here’s what the rules and the precedents tell us.
by Jim Swift
October 31, 2022
If McMullin Wins and Won’t Caucus With Either Party, What Happens to His Committee Assignments?
(Composite / Photos: George Frey/Getty Images / Shutterstock)

Evan McMullin is within striking distance of defeating incumbent Sen. Mike Lee, in large part because McMullin—a conservative and former Republican running in deep red Utah—convinced the Democrats not to field their own candidate, which would have split the anti-Lee vote. Democrats stand to gain should McMullin be elected: Republicans would lose a seat, and, depending on the issue, Democrats could gain a potential vote. The risks and tradeoffs involved in this scenario are unique, although not wholly unprecedented, and worth examining in detail.

The voters McMullin most needs to win over are open to a true centrist alternative to the MAGA insanity of the Republicans, on the one hand, and the perceived hard-left cultural politics of the Democrats, on the other. This is why he has repeatedly emphasized that, if elected to the Senate, he will not caucus with either the Republicans or the Democrats. Here he is repeating the pledge last week:

Some liberal commentators have argued that McMullin’s refusal to pick a caucus is “dangerous” because it could invest him with outsize tie-breaking power if the partisan balance of the Senate stays close to its current level. (We already know roughly what that would look like, as Democratic Senators Joe Manchin and Kyrsten Sinema spent the last two years extracting concessions before signing on to major pieces of legislation.)

Some conservative commentators, looking for ammunition to use against McMullin, have claimed that his refusal to pick a caucus will make him a weaker standard-bearer for Utah in the Senate. For instance, Conn Carroll, a former Mike Lee staffer, argues that McMullin is preemptively “refusing to do committee work” should he be elected because committee appointments are determined by the two parties.

The reality is a bit more complicated. As the Congressional Research Service states:

Senators must serve on two “A” committees[,] may serve on one “B” committee, and [may serve on] any number of “C” committees. Exceptions to these restrictions are sometimes approved by the Senate.

These letter designations rank the desirability of Senate committees in just the way you’d expect: “A” Committees are better than “B” committees, and both are better than “C” committees. Regardless of whether he caucuses with one of the parties, McMullin is guaranteed placements on at least two “A” committees.

What would this look like? The system for assigning Senate committees has evolved over the decades, partly in response to longstanding trends of abusing seniority, but the upshot is that the two parties work together to propose and vote on committee assignments that reflect the party balance in the chamber. Most senators receive assignments based on their party affiliation; in the case of recent exceptions—Sens. Angus King and Bernie Sanders—the independent senators chose to caucus with one of the parties, and received assignments as other members of that party (i.e., the Democrats) did.

Even if hypothetical Senator McMullin refuses to follow suit, he will still receive committee assignments, as stipulated in Rule 25 of the rules of the Senate: “each Senator shall serve on two and no more [“A”] committees.”

This is not to say McMullin would be treated well. Consider the case of Wayne Morse, a senator from Oregon who served for several years as an independent in the middle of a congressional career that spanned nearly a quarter century.

Morse broke with the Republicans in 1952 over President Dwight Eisenhower’s selection of Richard Nixon as a running mate, but he would not join the Democrats until several years later. When the Senate convened for the first time following his split with the GOP, he set up a folding chair in the chamber’s central aisle to highlight his independence. Having served with nice committee assignments for eight years as a Republican, he assumed he would at least keep his seats, if not the prerogatives of his seniority. Party leaders had other ideas. Sen. Robert Taft, the new Republican majority leader, decided that Morse should be

removed altogether from the Labor Committee—his most prized assignment. Morse responded by invoking a Senate rule—unused for more than a century—requiring the entire Senate to vote on each assigned committee seat. As a result, when Republican Leader Taft and Democratic Leader Lyndon Johnson submitted their slates of committee assignments, they removed Morse’s name from both Labor and Armed Services, while leaving places for him on the District of Columbia and Public Works committees.

Morse’s various efforts to combat his relegation to low-priority work were embarrassingly unsuccessful. He eventually accepted what he called his “garbage can” assignments from Senate leaders. He only regained his prized seat on the Labor Committee thanks to a colleague’s chivalrous offer of his own seat on the committee following Morse’s humiliations. The Oregon senator’s prospects would improve after he agreed to complete his trek across the aisle and join the Democrats in 1955.

Morse’s experience is instructive: Committee assignments are not just a matter of prestige, but a means of advancing initiatives that are important to a legislator’s state and constituents. Losing out on them can prevent a politician from delivering on campaign promises, leaving him or her more vulnerable to challengers in the next election. (Those challengers, too, would presumably benefit from the resources, funding schemes, and other infrastructure of their party.) The risks of charting a solo course are real.

More recent independent Senate candidates—such as Lisa Murkowski, re-elected to her seat as a write-in back in 2010 following a Republican primary loss to a Tea Party candidate, and Joe Lieberman, re-elected to his seat as an independent in 2006 following a primary loss to a more progressive Democrat—have heeded the lessons of Morse while charting their political careers. Both won through shrewd political calculations, banking on partisan primary voters being more extreme than the general electorate; they both returned to their old parties following their elections even though they had relied on votes from the other party to win their seats.

But McMullin faces an important set of challenges that Murkowski and Lieberman did not: He’s never been elected to anything, has never had committee assignments, and seems to have no noteworthy connections to his prospective future congressional colleagues in either party. Hypothetical Senator McMullin’s difficult path would require finding a way into collaboration and meaningful committee work with his colleagues without being branded as either a Democrat or a liar.

I reached out to the McMullin campaign several days ago to see if the candidate has given thought to how he plans to approach these challenges, but have not heard back. But if he’s looking for options, here are three that stand out should McMullin defeat Lee:

1. Renege. McMullin could pick a side in spite of promising not to and hope that his supporters take it well. The Democratic tent is much more capacious than the GOP’s these days; he could become a Democrat in the way that Bernie Sanders, at the opposite side of the spectrum of political reasonability from McMullin, is a Democrat. (He could also throw his lot in with the Republicans, but that would be a more clear-cut case of betrayal of principle.) Caucusing with either party will alienate some, but could also provide McMullin with opportunities for more meaningful and useful legislative work.

2. Roll the dice. McMullin is guaranteed two “A” committee seats. He could make Mitch McConnell and Chuck Schumer fight over him. What are the odds that both of them would want to screw him over? Not high, if either feels his vote could be in play for their conference at crucial moments.

3. Negotiate. McMullin doesn’t need to caucus, but could take a cue from those familiar figures of Democratic opprobrium, Sens. Manchin and Sinema. Over the first half of the Biden administration, they have demonstrated that when a stubborn hand holds a pivotal vote, significant concessions are suddenly back on the table. Obviously, this strategy will depend on the makeup of the next Senate: Will it be 50-49-1? 52-47-1? 54-45-1? In the course of most Senate business, few would care what McMullin gets up to if one party has a majority with a comfortable margin, but he could become a pivotal figure if the chamber is more evenly split.

McMullin has chosen a smart but risky path while mounting his challenge to Lee. If he wins, the biggest risks will be ahead of him—but so too may be the greatest potential political payoffs.

Jim Swift

Jim Swift is a senior editor at The Bulwark.