Posted on 01/17/2010 6:27:11 PM PST by jazusamo
A victory by Republican Scott Brown Tuesday in Massachusetts could quickly turn into a legal battle over the man he would replace – Sen. Paul Kirk – with the future of health reform in the Senate hanging in the balance.
Conservative commentator Fred Barnes is arguing that Kirk will lose his vote in the Senate after Tuesday's special election, no matter who wins, signaling a possible GOP line of attack against health reform if it passes with Kirk’s vote.
GOP elected officials haven't embraced that argument, and two academic election law experts contacted by POLITICO refuted the notion that Kirk will no longer be a senator after Tuesday's election. But it’s a sign of the fierce legal and political battles likely to ensue if Brown upsets Democrat Martha Coakley in the race to fill the late Sen. Ted Kennedy's Senate seat.
And Kirk would be in the middle of it all. Brown would take over for Kirk, a supporter of reform, and become the 41st vote against the health bill - ending the Democrats' filibuster-proof majority and throwing reform's future into serious doubt.
Republicans are worried that if Brown wins, Democrats will try to jam through a Senate health reform vote while Kirk still occupies the seat, in the time between Brown's election and when he is certified the winner.
Kirk has pledged to vote for reform for as long as he remains a senator, even if Brown wins Tuesday. Some Republican lawyers are arguing he won’t have the chance.
"Appointed Senator Paul Kirk will lose his vote in the Senate after Tuesday's election in Massachusetts of a new senator and cannot be the 60th vote for Democratic health care legislation, according to Republican attorneys," Barnes, the Weekly Standard’s executive editor, wrote on the conservative magazine's website Saturday night. "Based on Massachusetts law, Senate precedent, and the U.S. Constitution, Republican attorneys said Kirk will no longer be a senator after election day, period."
So if Brown wins and Democrats vote on reform before he is seated, they will have to defend the rushed vote and, now, the legitimacy of Kirk's clutch 60th vote.
Fearing a political backlash in the Senate, Democrats could try to pass the Senate bill through the House with no changes, sending it straight to President Barack Obama's desk. But that is still considered a last-ditch maneuver fraught with its own perils.
Health care insiders see an even bigger problem should Brown win on Tuesday - nervous Senate Democratic moderates reconsidering their support for the bill.
"This has now turned into a referendum on health care in the bluest state. If Brown wins, technical 60 vote aside, there are a lot of mod[erate] Ds who are going to flip and this thing will be in trouble, not dead, but delayed and possibly scaled back," said a Democratic health care industry insider, adding that a Republican win will make it that much harder for Democratic congressional leaders to sell a final deal to their members.
Republican strategist Phil Blando agreed. He said the argument over whether Kirk's vote will count or not is "a legal technicality in the broader political earthquake that a Brown victory would signal. The concern isn't that you lose Kirk's vote, but that you lose Ben Nelson, Blanche Lincoln and Joe Lieberman and a bunch of Blue Dogs."
And any Democratic move to slow-walk seating Brown in order to pass reform, Blando said, is "just naked, pure power politics where, at that point, you're just thwarting the will of the people."
Congressional Republicans, including the National Republican Senatorial Committee, were wary of making the Kirk argument before Tuesday's election and declined to say Sunday whether they plan to advance it should Brown win.
Senate Republican Leader Mitch McConnell called the possibility that Kirk's term may expire after Tuesday an "interesting academic question" on "Fox News Sunday."
"What we have to do is wait until the election is held and then focus on that. I think the first step is to see what the people of Massachusetts say on Tuesday, and then everybody will be looking at the process for swearing in the new senator after that," said McConnell, adding that the winner "should be sworn in promptly."
Democrats pushed back against the GOP argument that Kirk loses his vote on Tuesday saying it would, at a minimum, raise constitutional questions because Kirk is a duly sworn U.S. senator.
Jim Manley, a spokesman for Senate Majority Leader Harry Reid, said Republicans are wrong to argue that Kirk will no longer be a senator after Election Day, adding that the point will be moot when Coakley wins. Senate leadership will follow the law and Senate rules when seating the next senator from Massachusetts, Manley said.
Still, concern over Brown helped fuel last week's Democratic scramble to finish reform. Obama and congressional Democrats held marathon White House meetings to reconcile the differences between the House and Senate versions of reform and craft a final bill that can pass Congress.
On Sunday, Kirk spokesman Keith Maley told POLITICO that his boss has no plans to step aside until Massachusetts election officials take the necessary steps to certify the election and a new senator is sworn in.
"Senator Kirk plans to serve until the winner of the election is sworn into office and will work to ensure a seamless transition for the new senator," Maley said.
To be sworn into the Senate, a member needs to have certification papers signed by the governor and the secretary of state, a precedent that was underlined over last year's flap in seating Sen. Roland Burris (D-Ill.).
And if certification becomes an issue, Democrats and Republicans will almost certainly be forced to reverse the positions they took in another legal dispute in a Senate race: last year's prolonged battle between Al Franken and Norm Coleman that didn't end until the Minnesota Supreme Court sided with Franken in June.
For months, Republicans argued that Minnesota Gov. Tim Pawlenty didn't have to sign the certification papers if Coleman were to take his case into federal court, thereby preventing Franken from taking his seat until the matter was resolved months - or even years - later. But Democrats accused the GOP of attempting to delay the certification in order to deny Democrats a pivotal vote in the Senate.
The battle didn't come to a head since Coleman declined to press the matter into federal court, but if Massachusetts' elected Democrats don't swiftly move to certify Brown, and Senate Democrats don't move to quickly swear him in, the Republican Party is almost certain to erupt - and consider legal challenges to Kirk's standing in the Senate.
"The chances of an election result being so close that it is within the margin of litigation is very small," said Rick Hasen, an election law expert at Loyola law school in Los Angeles. "That said, if it is that close, I am sure it would be litigated even more fiercely."
David Schultz, a professor at Hamline University in St. Paul, said that "Democrats have to accept Brown as soon as Massachusetts certifies the election or delivers the election certificate to the Senate."
Delaying it, Schultz said, would be the same situation as if Pawlenty refused to sign an election certificate for Franken.
"However, to argue that Kirk is no longer senator if Brown wins is not exactly accurate -- Kirk is senator until the state certifies the election," Schultz said. "The reason for that is that there could be a recount in a close election, litigation, etc. What could be really interesting is if the election is close, Brown appears to be a winner, and then the Democrats go to court to delay his seating.
"That would really open them up to criticism that parallels what happened in Minnesota," Schultz said.
And it's far from clear whether the legal argument that Kirk is no longer a senator would hold up.
Guy-Uriel Charles, an election law expert at Duke University, disagrees with the GOP's contention, saying that the Senate is the ultimate judge of its members. Charles said that Kirk has the proper certifications to serve in office and, under the law, can do so "until the next person is certified."
"Now if the Republicans were in charge in the U.S. Senate, they could do away with Massachusetts certification requirement," Charles said. "But it is obviously unlikely that the Democrats would do so. If the Massachusetts' Democrats engage in delaying tactics, if Brown wins, the Republicans can go the courts.
"But I don't buy the argument that the results of the election itself, without certification, is sufficient to divest Kirk of the office."
Obamski will just instruct Reid to buy off Olympia Snowe.
No, they haven’t done anything but have meetings among the Dems. There was a little activity on the 13th but minor.
The Dem big shots were at the White House a couple days meeting with Obama, his thugs and union thugs re reconciliation of the Senate and House version and giving union thugs what they wanted re taxing of the “Cadillac” plans, they shut the Repubs out completely.
You couldn’t be more right, IMO. Blatant corruption and they don’t even try to hide it.
Qualification is different from certification. Election results are certified. Candidates are qualified. The legal interpretation I get from that is based on a scenario like Joe Bidens. Biden was elected November 7th 1972. He turned 30 years old on November 20th. He was elected to, but not qualified for, the senate on November 7th. In Biden's case, it did not matter, because he would not be sworn in until January 3rd 1973, when all of the new senators were sworn in.
I would be curious how the Massachusetts law read when Teddy was sworn in less than 24 hours after the polls closed.
I suggest "Al Franken" the election.
Any other ideas?
Anyone know the law in MA? How close does it have to be for a recount? Most states it has to be less than 3% so I have to assume if he wins by more than that then the only thing they can do is stall his seating for 10 days. MA law as I read it says after Tuesday the interium’s vote of null and void.
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Good post potlatch
Thank you
Also found this page, which lists for each session the days each body was in session. For the Senate is was only on the 5th. The House was in session on the 5th, the 12th, the 13th and the 15th (Tues, Wend and Fri of last week).
But, of course, there is NOTHING in the daily digests of Congress about meeting with the President or reconciling health care, or reconciling any legislation. IOW, that is ALL being done extra-legally. (I'm aware you're not disagreeing with me on that obvious point.)
The Massachusetts law, passed in September to authorize Kirk’s appointment, provides that an appointed Senator shall serve “until the election and qualification of the person duly elected to fill the vacancy.” This would seem to support the position that Kirk can continue to serve after the special election is held. However, the Senate has previously found that substantially similar state laws cannot extend the term of an appointed Senator beyond the date of the special election.
On May 7, 1937, George Berry was given a temporary appointment as U.S. Senator from Tennessee to fill a vacancy created by the death of Senator Nathan Bachman. On November 8, 1938, a special election was held to fill the seat. In accordance with Tennessee’s normal practice, it took several weeks before the votes were counted and a winner was not certified until January 3, 1939. The applicable Tennessee law provided that a temporary Senator “shall hold office until his successor is elected at the next biennial election and qualifies.” Based on this law, Berry claimed that he was entitled to hold office and be paid until his successor was certified and/or actually seated by the Senate.
Berry’s claim was referred to a subcommittee of the Senate Judiciary Committee, which held a hearing and considered legal arguments on the matter. A legal analysis prepared for the subcommittee found that “in view of [Seventeenth Amendment’s] purpose of providing for representation in the Senate by persons elected by popular vote both for full terms and for unexpired terms it seems reasonable to assume that no temporary appointment was to be authorized except for the intervening period between the creation of a vacancy and the day when the people by their votes actually elect a successor, or, in other words, until they elect a person to fill the vacancy.”
In addition to the text and purpose of the Seventeenth Amendment, the analysis relied on various Senate precedents, including an October 15, 1918 ruling by Vice President Marshall, who found that the phraseology of the amendment was “radically different” than that of various state laws that permitted appointees to serve until their successors were “elected and qualified.” Marshall concluded that regardless of the fact that Senators-elect must “run the gamit of executive, administrative, judicial and senatorial investigation before they are entitled to qualify and take their seats as Members of the United States Senate,” the terms of their appointed predecessors nonetheless expire on the day of election.
Your link to the Library of Congress calendar is interesting, thanks.
To me it’s just unbelievable the Dems are shutting out the Repubs on this bill. It’s the biggest bill I can remember and they’re determined to ram it down our throats. If they do the Dems going to pay for a long time, I just hope the Repubs will start operating as conservatives.
“Legal battles” be damned, FIGHT ON!
Niko's my better half will brain me, but you and I would probably be on a red eye havin Scott's back in DC with how many from MA and how many from the Tea-Parties and 9/12 project stand with us?
They don't dare screw with us now. Better yet they don't screw with the people of Mass now...
“Publish the home addreses of the Democratic maching canditates and let the protesting begin.”
what does this mean?? the addresses of who?? I’ll go!
“If the Dems pull their dirty trick lever, you could have a Ben Nelson step in a say I will not vote to end the fillibuster until Brown is seated.”
I have called both Kirk’s offices and Kerry’s offices to suggest that they attempt to rehab their comtemptible and sneering attitudes to ‘we the people’ by NOBLY stating that they will hold up any vote on HC until the new Senator is seated.
That could help them save face and avoid a little tar and feathering....
“Lovey...why are those little people shouting and holding those smelly pails??”
“Why I DO believe they want to enter our townhouse!”
“The Dem big shots were at the White House a couple days meeting with Obama, his thugs and union thugs re reconciliation of the Senate and House version and giving union thugs what they wanted re taxing of the “Cadillac” plans, they shut the Repubs out completely.”
....and while they were diddling with a HC reform bill NO ONE WANTS, Iran was busy with their centrifuges, Haiti was dying and Cass Sustein was plotting to take away our freedom of speech.
Pray and be prepared for Bush/Gore 2000 redux .. and pray more ... PING!
I fully expect that all the filthy Dem tactics are being set in place now. Lawyers are en route, if not already there.
Remember Al Franken ..... PRAY!
I THINK it’s good- just checked -tomorrow’s weather is supposed to be a mix of sleet/rain and snow. Only devoted people are going to the polls.
Just heard Pat Caddell tell Neil Cavuto that he never thought he’d see Obama turn the Republican Party around in one year into a viable national party... ROFLMAO!!!!
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