Scott Brown's Win Could Spark Legal Battle
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.
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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."
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Sources: Politico, MSNBC, Hardball, Google Maps
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