The Massachusetts Senate Race
Constitutional law is often the product of accidents, as some of the “What If?” counterfactuals that I’ve talked about in earlier posts point out. We may have one of these flukes on our hands soon.
A special election will be held in Massachusetts for the seat vacated by Ted Kennedy and filled on an interim basis by Paul Kirk(D). Suppose that the Republican wins that race (the polls are reasonably close). Then there would be only 59 Democrats (and Democrat/Independents) in the Senate, not the 60 necessary to get cloture. What would happen to the health care bill in that scenario?
There are two relatively straightforward options. One is that the conference on the bill could be completed before the special election is held. Another would be that the House just passes the Senate version of the bill, thus negating the need for another Senate vote.
If neither of those occur, however, then the possibility of wacky (or unconventional) constitutional action becomes a real possibility. What does state law say about when the interim Senator’s term ends? Is it by a date certain after the special election, or is upon the certification of a successor? If the latter is the case, then that could allow the Governor (Deval Patrick(D)) or a Senate majority to delay certification until the Senate can pass health care.
Assuming that this does not happen, what then? Would the Democratic majority have to bargain with Olympia Snowe to get cloture? Or would the lack of a sixtieth Senator be the trigger for an effort to use the reconciliation process so that only a majority would be required to pass the bill? Put another way. could the unintended consequence of the Massachusetts election be a constitutional showdown over the Senate rules? (It’s worth noting that reopening negotiations to get sixty votes would take time, and the closer we get to the midterm elections the harder it will be to strike a deal.)