The result of Sunday's general elections left the formation of a government in the air, as neither the left nor the right bloc reached a sufficient majority in Congress to invest Pedro Sánchez or Alberto Núñez Feijóo, winner of the elections. In the case of the Senate, the polls of 23-J did give the absolute majority to the popular. The system of direct election of three senators per list tends to give priority to the most voted party – the PP – which obtained 120 of the 208 seats at stake, and to which they will add another twenty seats by regional designation. Popular leaders have advanced that they will use the upper house as a retaining wall against the action of the Government and its investiture partners if the acting president achieves the necessary support to repeat in office. In that hypothesis, the Popular Party could slow down legislative activity and activate commissions of inquiry in the upper house. But what would be their room for manoeuvre?

The president of the Community of Madrid, Isabel Díaz Ayuso, in an appearance in which she charged against the "sanchismo" – this Wednesday, and in which she took for granted that Sánchez will govern with the nationalist parties – stressed that Feijóo has an absolute majority in the Senate, "which will serve to try to stop any modification of the statute of Catalonia" and "of the Basque Country". The Constitution conceives of the Senate as a legislative chamber of second reading and territorial representation, but its usefulness has been questioned for decades. The bicameral system in Spain is designed in an asymmetrical way, so that the Senate is subordinate to Congress, and whose main functions are: control of the Government, legislative, elective and constitutional.

As far as legislative activity is concerned, the situation would change if Sánchez is invested. For what it needs the vote in favor of the nationalist forces of ERC and Bildu, in addition to the abstention of Junts. In that case, and as in all legislatures, the laws approved in Congress will have to be ratified in the Senate. Although the PP could not tear them down. What could cause the popular parliamentary group, with its absolute majority, is to lengthen the procedures for its final publication in the BOE. The upper house must deliberate on texts already approved by Congress in a limited and short time: two months normally and 20 days in the event that the processing has been declared urgent. It is at that moment when the PP could act to slow down the process, through veto or partial amendments.

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Latest news and results of the 23-J Elections

To completely reject a law, an absolute majority is required, which the popular ones enjoy. Whereas for amendments, a simple majority is sufficient. In both cases, the text then returns to Congress. Members may lift the veto, in a first vote, by an absolute majority. Sánchez would only have an absolute majority if he adds the votes in favor of the entire parliamentary arc excluding PP and Vox. That is, Junts would also have to give its yes, abstention would not be worthwhile. Otherwise, another vote would have to be held, which must be dated at least two months after the veto granted by the Senate, and reject it in that second round already by a simple majority. For amendments, only a simple majority of the lower house is necessary, so it would affect minimally.

With regard to the statutes of autonomy, article 152.2 of the Constitution stipulates that "once the respective statutes have been sanctioned and promulgated, they may only be modified through the procedures established therein and by referendum among the voters registered in the corresponding censuses". Then, the reform has to be ratified in the Cortes Generales through the same procedure as the one described above, with the Senate subordinate to Congress. It would be a different matter to reform the Constitution.

In the case of the General State Budget, a similar path is followed, although with particularities that do not affect its final approval in Congress. There is only one case in which the Senate intervenes before the lower house, and that is in the processing of the Interterritorial Compensation Fund, in response to the spirit by which the chamber was conceived.

Commissions as a weapon

During Wednesday's press conference, Ayuso also threatened to activate, from the Senate, investigative commissions that "give real information" on many "issues that have been hidden" from the Spaniards, "because Sanchismo has used the Courts at will." Also to "know what pacts he has with [Arnaldo] Otegui and with the Catalan coup plotters." According to the Rules of Procedure of the Senate, the commissions of inquiry are promoted at the request of the Government or with the support of 25 senators from different parliamentary groups. The PP could ask for them by adding a parliamentarian from another formation, such as the UPN senator. Its content can be "any matter of public interest" and its conclusions will be exposed to an open book. Also, if deemed appropriate, it will be transferred to the Public Prosecutor's Office for the exercise, when appropriate, of the corresponding actions.

It would not be the first time that a government is led by a political party while in the Senate there is an absolute majority of another. When Sánchez was sworn in after the motion of censure against Mariano Rajoy, in June 2018, the PP also had an absolute majority. In the upper house, precisely, a commission of inquiry promoted by the popular on the financing of political parties was underway. Among other leaders, the former leader of Podemos, Pablo Iglesias, was called to appear when Rajoy was no longer president. The greater weight in the upper house in turn causes greater room for action both for the composition of the committees and to mark the rules of the game of the same. But its conclusions have no direct legal effect. During that commission, the groups of the PSOE, Podemos and Ciudadanos protested and came to absent themselves in a session when they considered that a torticious use of this parliamentary tool was being made to divert attention from the judicial process of the box b of the PP.

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