Patterico's Pontifications

1/17/2010

If Brown Wins, Can Democrats Stop a Filibuster By Delaying His Appointment?

Filed under: General — Patterico @ 3:27 pm



Surprisingly, the answer may well be “no.”

Simon at Stubborn Facts explains:

[I]t’s incredibly important that we understand something: the GOP doesn’t need a 41st vote to stop Obamacare. Got that? We don’t need to seat [Scott] Brown to stop Obamacare. We need to deny the Democrats the 60th vote needed to invoke cloture.

Why is this important? Because after Tuesday, but before the newly elected Senator is seated, Democrats will have 59 votes — not counting Paul Kirk, the person occupying the Senate seat in Massachusetts formerly occupied by Ted Kennedy. And there is a decent legal argumnt that Kirk cannot legally cast a vote to invoke cloture after Tuesday.

Ed Morrissey quotes Fred Barnes:

[I]n 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.” . . .

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.

Morrissey and Barnes look at past precedents regarding when the terms begin for senators elected in a special election. Simon at Stubborn Facts gives an in-depth look at the legal issues — and how they might realistically play out — here and here.

One thing is for certain: the practical problems regarding standing, the identity of the plaintiff and defendant, and other issues identified by Simon need to be worked out now. I know that Brown recently issued a call for legal help, and I assume they are working on these issues. They need to.

As Simon says, “we must be prepared to press the point.” Let’s hope Brown is preparing to.

19 Responses to “If Brown Wins, Can Democrats Stop a Filibuster By Delaying His Appointment?”

  1. I’ll believe the answer to that question is “no” if/when I see it. The Dems always seem to get away with just about anything they please.

    GeneralMalaise (9927ac) — 1/17/2010 @ 3:32 pm

  2. [I]t’s incredibly important that we understand something: the GOP doesn’t need a 41st vote to stop Obamacare. Got that? We don’t need to seat Mark Brown to stop Obamacare. We need to deny the Democrats the 60th vote needed to invoke cloture.

    Who’s Mark Brown?

    Curt (949d3d) — 1/17/2010 @ 3:47 pm

  3. “[I]t’s incredibly important that we understand something: the GOP doesn’t need a 41st vote to stop Obamacare. Got that? We don’t need to seat Mark Brown to stop Obamacare. We need to deny the Democrats the 60th vote needed to invoke cloture.”

    That was the same thing that was going on when Kennedy was ill and when Byrd was too ill to goto Washington.

    There is nothing that says you need 41 votes to filibuster, just that you have to have 60 to stop it 🙂

    Lord Nazh (0d312a) — 1/17/2010 @ 3:47 pm

  4. Simon makes a very good point that, in essence, Republicans don’t need Brown so much as they need a Brown win. But I still think it would be better to call him Scott Brown instead of Mark Brown.

    DRJ (84a0c3) — 1/17/2010 @ 3:53 pm

  5. Assuming this is true, the Democrats would lose their 60th vote for ten days even in the event of a Coakley victory.

    But even assuming it is true, the question is “what will the Dems in MA and the Senate do?”

    And the answer to that is not “hold the seat open until either Brown or Coakley can take it”. The GOP could take them to court of course, but that would take time to get results. And all the Dems need is Kirk to be a Senator for another couple of weeks.

    Subotai (e4a5c6) — 1/17/2010 @ 4:12 pm

  6. If Michael Steele hasn’t already retained lawyers to file a TRO Wednesday morning in DC to shut down this crap, he should be driven from office before close of business Wednesday afternoon–this is an issue of basic competence, which failure to live up to should result in a vote of no confidence.

    M. Scott Eiland (c552ec) — 1/17/2010 @ 4:14 pm

  7. “Who’s Mark Brown?”

    You’re right. Simon got that wrong and I didn’t catch it.

    I have replaced “Mark” with “Scott” in brackets in the post.

    Thanks.

    Patterico (c218bd) — 1/17/2010 @ 4:31 pm

  8. If Kirk does it, it’s obviously an act of malice and fraud. They wouldn’t dare, would they? It would be the perfect act to incite the Republican base.

    Patricia (b05e7f) — 1/17/2010 @ 5:11 pm

  9. Like Michael Steele’s gonna stop them?

    happyfeet (e9e587) — 1/17/2010 @ 5:12 pm

  10. LOL – I don’t know where “Mark” came from. Fixed! Sorry all — and thanks for the link, Patterico.

    -Simon

    Simon (a84579) — 1/17/2010 @ 6:08 pm

  11. If “qualification” just means that the winner meets the constitutional requirements, then it adds nothing to the meaning of the sentence, because anybody who wasn’t qualified wouldn’t have been accepted as a candidate. The law might just as well have simply said “until the election of a person to fill the vacancy”. So “qualification of the person duly elected” must mean something more than that.

    One more point: if the only requirement were “election”, then it wouldn’t matter who wins; Kirk’s term would be over as soon the polls close and someone has more votes than all other candidates, even if we don’t yet know who it is.

    Milhouse (ea66e3) — 1/17/2010 @ 6:38 pm

  12. “One more point: if the only requirement were “election”, then it wouldn’t matter who wins; Kirk’s term would be over as soon the polls close and someone has more votes than all other candidates, even if we don’t yet know who it is.”

    That’s kinda the point

    Lord Nazh (8d682b) — 1/17/2010 @ 6:53 pm

  13. Fred Barnes says: “Massachusetts law says that an appointed senator remains in office ‘until election and qualification of the person duly elected to fill the vacancy.'”

    Some guys who are even older and wiser than Fred Barnes say: “Each House [of Congress] shall be the Judge of the Elections, Returns and Qualifications of its own Members …”

    Unless the Senate Democratic caucus’s party discipline falls completely apart — which might conceivably happen if enough incumbents start imagining pitchforks and tar in their constituents’ hands — Scott Brown’s “qualification” is in Harry Reid’s hands.

    Thomas L. Knapp (f1a580) — 1/18/2010 @ 5:39 am

  14. Ah … some statutory lore on the matter of “qualification” and what it may means under Massachusetts law:

    General Laws of Massachusetts, Chapter 34, Section 15 (“Qualification of officers; return to state secretary”)

    op.cit., Chapter 41, Section 21 (“Authorization for selectmen to act as or appoint other town officers”)

    I’m not a lawyer, nor do I play one on the Internet, so I’d be interested in seeing a lawyer’s take on the implications of these provisions. My take is that “qualification” seems to be defined as being sworn in by an official authorized to administer the oath of office.

    My guess is that that official, in the case of a US Senator-elect, is whoever is presiding in the Senate at the time. Roland Burris was sworn in by Vice President Cheney. Al Franken was sworn in by Vice President Biden.

    Thomas L. Knapp (f1a580) — 1/18/2010 @ 5:55 am

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