A Senate committee this week voted to put several Biden Administration nominees to transportation-related posts back on the Senate calendar (where they were at the end of the last session of Congress). But a lone Senator’s illness served to indicate just how precarious the 50-50 Senate can be.

The Senate Commerce, Science and Transportation Committee on February 2 approved a slate of nominees who were approved by the panel in the last Congress but which, per an antiquated Senate rule, were automatically returned to the President at the end of the First Session of this Congress on January 3. The nominations were re-submitted on January 4 and referred to Commerce once again.

The USDOT nominees approved this week were:

• Ann Phillips, to be Administrator of the Maritime Administration
• Steven Cliff, to be Administrator of the National Highway Traffic Safety Administration
• John Putnam, to be General Counsel, U.S. Department of Transportation
• Victoria Wassmer, to be Chief Financial Officer, U.S. Department of Transportation
• Max Vekich, to be a Member, Federal Maritime Commission

At present, the Commerce panel has equal membership – 14 Democrats, and 14 Republicans – as per section 1 of the power-sharing agreement (S. Res. 27) the Senate agreed to in February 2021. Section 3 of S. Res. 27 provides that if a committee cannot approve a “measure or matter” because a tie vote, one of the party leaders can make an expedited motion on the floor (no more than four hours of debate) to discharge the item from committee and put it on the appropriate Senate calendar.

But, when Senators came back to town this week, word spread early on February 1 that Sen. Ben Ray Lujan (D-NM), a member of the Commerce Committee, had suffered a stroke and that doctors had had to remove parts of his skull to prevent brain damage from the swelling caused by the stroke. He may be able to return to Washington in as little as four to six weeks from now, or it may be longer.

This means that, for the time being, Democrats have, at best, 49 votes on the Senate floor. And, while the Commerce Committee does allow proxy voting, they still operate under an overall rule of the chamber that prevents proxies from being dispositive on final approval of a bill or nomination in committee. Here is how a Congressional Research Service report sums it up: “If a quorum is physically present and proxies are used on the motion to report, they cannot make the difference in successfully ordering a measure or matter reported to the Senate. If, with a reporting quorum present, a majority of committee members present vote to order a measure reported, proxy votes to the contrary could prevent reporting. If, however, a majority of the reporting quorum votes against ordering a measure or matter reported, proxies could not count toward a majority vote to successfully report the measure or matter.”

As a result, the Commerce panel had three nominees from its markup schedule (balance-shifting appointees to the Federal Communications Commission, the Federal Trade Commission, and the Consumer Product Safety Commission) because, absent Senator Lujan, they could not be approved by the committee in the face of unified Republican opposition. Those nominees may have to wait until Lujan’s return.

Looking ahead, the Coes, Petsonk and Syed DOT nominations all advanced out of committee last year by voice vote, as did the Burton and Slater nominees to the MWAA Board (the latter two don’t normally require actual committee hearings). So one would presume that the Committee would approve them again at some point, as well.

We should add that Sen. Rick Scott (R-FL) has placed a “hold” on Department of Transportation nominees on the Senate floor until he gets the Transportation Secretary and the Commerce Secretary to come to testify before the Commerce Committee, in person, on supply chain disruptions.