Paul Kirk Cannot Legally Cast The 60th Vote For The Health Care Bill After Tuesday
Paul Kirk is the man appointed to fill the Senate seat vacated by Ted Kennedy by Massachusetts Governor Deval Patrick until a special election could be held. Scott Brown and Martha Coakley are running in that special election to replace Kirk.
And it looks like, according to the law and Senate precedent, Kirk cannot be the 60th vote for the health care bill after Tuesday (despite his promise to cast such a vote regardless of the special election outcome). Which raises the already sky-high stakes in that Massachusetts race.
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. …
But in the days after the election, it is Kirk’s status that matters, not Brown’s. Massachusetts law says that an appointed senator remains in office “until election and qualification of the person duly elected to fill the vacancy.” The vacancy occurred when Senator Edward Kennedy died in August. Kirk was picked as interim senator by Governor Deval Patrick.
Democrats in Massachusetts have talked about delaying Brown’s “certification,” should he defeat Democrat Martha Coakley on Tuesday. Their aim would be to allow Kirk to remain in the Senate and vote the health care bill.
But 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. Brown meets the age, citizenship, and residency requirements in the Constitution to qualify for the Senate. “Qualification” does not require state “certification,” the lawyers said.
Ed Morrissey notes that Senate pay rules affirm this position:
The pay date for a new Senator who wins a special election starts the following day after the polls close. Republican John Tower of Texas and then-Democrat Strom Thurmond are both precedents for this action. In both cases, their terms started on the day after election, even though it took weeks for their certification by the state.
There’s some precedent for this within the last year as well. Democrats attempted to block Senator Roland Burris, whose appointment to replace Obama’s vacated Senate seat was tainted by Rod Blagojevich’s attempts to sell it to the highest bidder, but ultimately had to cave when they could find no legal reason to deny him his seat. As we learned in that case, Senate rules only recommend that a Senator not be seated until a state certification has been conducted.
But such a certification isn’t required.
Also, remember that when Bill Owens won in the New York 23 race he was rushed to Washington DC and sworn in by Nancy Pelosi before all the votes were even counted so that he could vote for the House version of the health care bill. In fact, there was some worry that the count of the absentee ballots might have shown that he actually lost, though that never panned out. Even so, the Democrats would have to reconcile their actions in that race with their actions in trying to delay Brown being seated in front of an already antagonized and skeptical public.
Democrats are in a bad spot. If Coakley wins they’ve nothing to worry about. But if Brown wins, how much tomfoolery on sitting him is the public going to be willing to stomach? Especially on top of all they’ve already been forced to stomach in the process of pushing this health care bill through including inaccurate fiscal accountings of the bill and broken promises on transparency?
What’s more, if Democrat leadership attempts shenanigans on seating Brown it may well give some moderate Democrats they cover they need to distance themselves from a bill that is increasingly becoming an albatross around their necks. Rather than saying they’re voting against anything in the bill specifically, they can cast a protest vote over Brown’s exclusion.
Of course, again, this all hinges on Brown winning. And what happens beyond that is almost beyond prediction outside of saying that liberals will find themselves between a rock and a hard place.
