Editore"s Note
Tilting at Windmills

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September 14, 2009

PLAYING BY DIFFERENT RULES.... Ted Kennedy's death brought the Senate Democratic caucus down to 59 seats. Massachusetts Gov. Deval Patrick (D) would love to fill the vacancy, but can't.

In 2004, state lawmakers, worried about Mitt Romney choosing John Kerry's replacement, passed a measure to leave Senate vacancies empty until a special election is held within five months. In August, Kennedy, aware of his limited time remaining, asked that the law be changed -- empowering Patrick to fill a vacancy immediately with an interim senator, with a special election to follow soon after.

Now, Kerry, Patrick, President Obama's grassroots political organizing arm (Organizing for America), Senate Majority Leader Harry Reid, unions, and the entire Massachusetts congressional delegation all want the Democratic majorities in the state legislature to change the law back to its pre-2004 wording. State lawmakers, however, "remain wary."

Within the solidly Democratic Massachusetts political establishment, there's widespread desire to fill the vacancy with a placeholder who can give the state a second Democratic vote in the Senate until a replacement for Kennedy is selected in the January special election. But the idea of scrapping the state's 2004 succession law -- and the message it would send to voters -- is troubling many lawmakers and giving them pause. [...]

Overriding that law so soon afterwards with another one, again with an overt political design—to provide a possibly critical vote in favor of President Barack Obama's agenda this fall—is proving too much for some legislators to swallow.

"Should our loyalty be to being protective of the democratic process rather than to our partisan positions?" asked Democratic state Sen. Stephen Buoniconti. "A lot of members are uncomfortable and leaning toward saying we did a good job in 2004."

It's not a ridiculous argument. Any honest analysis recognizes that this is about politics, and partisan politics at that. If Romney were still governor, the effort wouldn't be under consideration. I tend to think the mistake was in 2004, and the state can put things right in 2009, but I can also appreciate why some may see this as unseemly. A Republican state lawmaker said, "I think there are many senators and many representatives who realize to reverse direction now is going to be viewed exactly for what it is -- partisan shenanigans." He's not wrong.

Indeed, it's the kind of brash politics that Democrats tend to avoid and Republicans tend to embrace. But that's the part of this I can't quite get around -- if we were in a period of Republican ascendency, and the Senate GOP caucus had 59 votes after a beloved conservative Texan died, Rick Perry wanted to fill the vacancy in advance of an important vote but was restricted by a recent change to state law, and there were large Republican majorities in the Texas House and Senate, is there any doubt in anyone's mind that they'd change the law in a heartbeat? Concerns about how this might "look" would be deemed irrelevant?

Democrats who balked would be branded as anti-Texas for insisting that the state had one senator during a time of crisis instead of two.

This isn't entirely hypothetical. Remember, in recent years, Republicans in Texas, Georgia, and Colorado all launched re-redistricting efforts, redrawing the boundaries mid-decade to give the GOP an edge in their respective congressional delegations. It was a remarkable abuse of the process and a breathtaking example of "partisan shenanigans." They did it anyway.

Dems and Republicans often seem to play by different rules.

Steve Benen 4:40 PM Permalink | Trackbacks | Comments (44)

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Comments

Would Tom Delay hesitate for a second?

Posted by: maddem on September 14, 2009 at 4:44 PM | PERMALINK

States should move as quickly as possible to replace their representatives to the US Congress, including an allowance for the appointment of a temporary "place-holder" until a speedy election can be held. In business it only makes sense to have backup personnel ready to step in and take over roles performed by those that leave the company. States should have in place a similar system for immediate succession in the case of retirement or other removal from office of US Congressional representatives.

Posted by: NealB on September 14, 2009 at 4:47 PM | PERMALINK

I tend to think the mistake was in 2004, and the state can put things right in 2009

No they got it right in 2004. I would have thought that in a year that began with Rod Blagojevich trying to sell Obama's Senate seat (and Charlie Crist nominating a top aide to keep the Florida seat warm for him) that this would be obvious to everyone.

Posted by: Jinchi on September 14, 2009 at 4:49 PM | PERMALINK

Which is worse: A Republican governor in a heavily-Democratic state with only 13% registered Republicans, which has not elected a Republican as US Senator since the liberal Edward Brooke in 1960s, filling a Senate vacancy as he is allowed to under law by appointing a Republican, even though that seems to go against popular wishes -- or, a Democraticly-controlled state legislature doing what it can do under the rules and change the law to allow a Democratic governor to fill a vacancy, even though it might appear -- and is -- politically opportunistic and cynical. My vote is on #2

Posted by: Ted Frier on September 14, 2009 at 4:52 PM | PERMALINK

Different rules - yes. And self-inflicted at that.

But the blatant shamelessness of the Republican power-grab is one of the many reasons their reputation suffers today.

Posted by: wishIwuz2 on September 14, 2009 at 4:53 PM | PERMALINK

were this an ideal world, i would be inclined to agree with Jinchi. but as Jinchi notes, Florida just did an interim appointment to fill its vacancy. Democrats cannot unilaterally disarm: the really relevant "different rules" here are not Mass. 2004 under Romney versus Mass. 2009 under Patrick; the relevant different rules are Florida 2009 versus Massachusetts 2009. The Republicans will have little room to complain that Mass. appoints an interim since they didn't leave the Florida seat vacant.

if the good government progressives want to pass laws of neutral application that must be followed by all states in all circumstances, great. in such a law, do what is right. in the apparently lawless meantime, however, don't be a sucker: play the game as well as Republicans, or they will continue to ruthlessly use the United States as their freaking doormat.

Change the Mass. 2004 law; appoint a progressive replacement. Take the heat, then win the health care vote.

Posted by: zeitgeist on September 14, 2009 at 4:54 PM | PERMALINK

I meant, that #1 was worse

Posted by: Ted Frier on September 14, 2009 at 4:55 PM | PERMALINK

This is a cautionary tale for progressive activists who wish to eliminate the filibuster. If successful, we may wish we had it someday. And do we really want to live in a world where the rules change every time the majority party switches?

Posted by: dr sardonicus on September 14, 2009 at 4:57 PM | PERMALINK

Dems and Republicans often seem to play by different rules.

This is what happens when you don't prosecute them.

Posted by: cld on September 14, 2009 at 5:00 PM | PERMALINK

And do we really want to live in a world where the rules change every time the majority party switches?

That's the *point* of changing the majority party, is it not? The rules that don't change are in the Constitution.

Is the theory that if we behave and elevate politics above party interest, the GOP will follow our good example?

Posted by: Jon on September 14, 2009 at 5:02 PM | PERMALINK

There is an easy fix here. Change the law to move up the date for the special election (say within 90 days), with a requirement to defend the seat at the next possible open election.

That way, you maintain the integrity of what you did in 2004 (stating that the seat should be elected), but acknowledge that you over-estimated the amount of time needed for the election.

This way, the Dems in the Senate get their seat back, and in a fairly timely manner, and no one can accuse the Mass. legislature of partisanship.

Posted by: kickingleft on September 14, 2009 at 5:03 PM | PERMALINK

And do we really want to live in a world where the rules change every time the majority party switches?

We already do. And the reality is that (a) we are the only ones who would care enough to change that and (b) we will only be able to change that if we have massive majorities. That is, we have play to win under the current reality if we want the chance to establish better rules.


Posted by: zeitgeist on September 14, 2009 at 5:03 PM | PERMALINK

This is just more evidence the Senate has grown well beyond its intended power. Senators act too nationally to be governed by a set of 50 disparate and easily changed laws.

We either need universally accepted election laws governing the Senate or, my preferred solution, we solve the bottleneck and abolish the Senate.

Posted by: doubtful on September 14, 2009 at 5:11 PM | PERMALINK

We need the 60th vote soon both for health care and climate change (the people of the state that elected Ted Kennedy should be represented in the US Senate) but, the law should require the appointee vacate the seat for the successful candidate in a special election held in a reasonable period of time. needed for the special.

Posted by: robert on September 14, 2009 at 5:13 PM | PERMALINK

Is the theory that if we behave and elevate politics above party interest, the GOP will follow our good example?

No, the theory is that if we behave like they do, then our side is no better than theirs.

Posted by: dr sardonicus on September 14, 2009 at 5:15 PM | PERMALINK

Republicans have rules? Beyond fay çe que vouldras and don't get caught I'm not sure what you could be thinking of.

Posted by: Fleas correct the era on September 14, 2009 at 5:16 PM | PERMALINK

thats all well and fine, dr. sardonicus, but lets say i am walking down the street and i see a woman being mugged. now, i happen to be pretty pacifistic; i believe violence is wrong. when i see this mugger engaged in violence, if i use the racquetball racquet i happen to be carrying to crack his head, i would be no better than he is. but the woman - the only innocent in this scenario - would now be safe. the needs to do right by real people has overridden my need to be pure in theory.

the Democrats can protect the country from the Republicans -- in ways that quite literally save lives, save livelihoods, save the Constitution, and save the Earth itself. or we can fiddle ourselves a holier-than-thou song about our higher civic morality while watching the Republicans burn the whole f*cking place down.

you and i appear to disagree on which is worse.

Posted by: zeitgeist on September 14, 2009 at 5:23 PM | PERMALINK

Screw the Republicans.......Do it NOW!

Posted by: fred on September 14, 2009 at 5:28 PM | PERMALINK

I tend to think the mistake was in 2004

Indeed. As I read about this it strikes me as an illustration of the pitfalls of directing the legislative process at a single individual.

Posted by: Roddy McCorley on September 14, 2009 at 5:28 PM | PERMALINK

Florida just did an interim appointment to fill its vacancy.

Florida did not just do an "interim appointment". Crist found someone who would agree not to run for the seat (because Crist wants it for himself). In other words, his pick is there to represent the interests of Charlie Crist, not the people of the state, not even the interests of his own party - him, personally.

We only care about this pick because we assume that he will be a progressive 60th vote for this health care reform. (I'll point out that there is no guarantee that they 59 votes for cloture, now.) There is simply no other reason to give Patrick appointment power, the special election is already scheduled for mid-January.

This Democratic obsession with filibuster proof majorities is a serious problem. It's resulted in constant capitulation to people like Joe Lieberman and granted the most conservative Democrats veto power over all legislation. Health care reform is just one issue of concern, and despite all talk to the contrary, nothing prevents Congress from bringing forward a bill again, even if the first try fails.

Democrats need to learn how to govern with a simple majority or post-2010 every vote will end in deadlock.

Posted by: Jinchi on September 14, 2009 at 5:33 PM | PERMALINK

I think I've lost track of what this thread is about, but if zeitgeist is pounding Republicans with racquets, I'm in.

Posted by: doubtful on September 14, 2009 at 5:34 PM | PERMALINK

Politico is entirely misleading here. The proposal is not to "scrap" the 2004 law, it's to amend it to allow in interim Senator until the special election is held. All this crap about the people not getting a say is bullshit, the election will still take place at the exact same time as under the 2004 law (it's already been scheduled) Patrick will just be able to appoint someone to serve until then. Furthermore, he's said he will not appoint anyone running in that election to avoid any possible benefits from a 3 month incumbency.
Maybe public support is declining because people have no idea what the proposal actually is because the media is a bunch of morons who don't care about misleading their readers.

Posted by: SP on September 14, 2009 at 5:35 PM | PERMALINK

Jinchi: Democrats need to learn how to govern with a simple majority

notwithstanding anything in my earlier posts that may appear to be to the contrary,I absolutely agree with you on this one.

Posted by: zeitgeist on September 14, 2009 at 5:36 PM | PERMALINK

It's filthy politics, but as someone said recently, dems need to 'take the gloves off... Americans don't like gloves.'

Forget principle for now. This bill is make or break. If it's legal, then its on the table.

Posted by: JK on September 14, 2009 at 5:42 PM | PERMALINK

If national Democrats want it, many Dems in the Massachusetts Legislature don't. They are very Blue Doggy, the result of stultified one-party dominance.
But if Obama leans on 'em, they'll fold. A primary state rep challenger could do a lot with a Presidential fundraising event.

Posted by: JMG on September 14, 2009 at 5:45 PM | PERMALINK

The Texas case was to reverse a fairly outrageous gerrymander under the Democrats when Ann Richards was governor but don't let me get in the way of your thought. You are on a roll.

Posted by: Mike K on September 14, 2009 at 5:54 PM | PERMALINK

the Democrats can protect the country from the Republicans -- in ways that quite literally save lives, save livelihoods, save the Constitution, and save the Earth itself. or we can fiddle ourselves a holier-than-thou song about our higher civic morality while watching the Republicans burn the whole f*cking place down.

But, zeitgeist, if the right wing is truly as bad as you say they are, you think legislation is gonna stop them? Hell, no - they'll just go home and grab their guns! It's already happened once, you know.

Myself, I wish to prevent a second Civil War, but if you're right and I'm wrong, then this country is not worth saving.

Posted by: dr sardonicus on September 14, 2009 at 5:56 PM | PERMALINK

This a apples and alligators.

Under the old law, the governor appointed someone to the Senate seat for the remainder of the term, which gave that person an advantage in the next election, which is why they changed the law to have a special election.

What they want to ADD to that special election is an interim appointment to the senate seat, by someone who will only serve temporarily and NOT be running for the seat in the special election.

Posted by: Joe Friday on September 14, 2009 at 6:03 PM | PERMALINK

They should just do it. It's a law passed by the legislature. They can change it every week if they want to and it's up to the voters or the governor if they have vetoes to deal with it. That's how the system works.

Just do it. God what an embarrassing set of people. No guts at all.

Posted by: MNPundit on September 14, 2009 at 6:05 PM | PERMALINK

The Texas case was to reverse a fairly outrageous gerrymander under the Democrats when Ann Richards was governor but don't let me get in the way of your thought. You are on a roll.
Posted by: Mike K on September 14, 2009 at 5:54 PM | PERMALINK

No you jackass, the redistricting in the Delay case had happened THE YEAR BEFORE in 2002 as a result of the census during Rick Perry's governorship. Democrats and Republicans could not agree to a new district map, so under Texas law the matter was referred to a panel at the request of the Republicans to which the Democrats acceded and a new map was drawn up.

his was in no way a result of "outrageous" gerrymandering under Ann Richards and no one but you claims so, you stupid fuckwit.

Furthermore, even the Bush Justice Department found that Delay's redistricting violated the Voting Rights Act.

Why do you post such uninformed remarks on such a regular basis? Why are you careless with the facts? Is your ideological drive so desperate it overcomes any sense of shame or honesty?

Posted by: trex on September 14, 2009 at 6:24 PM | PERMALINK

Under Mass. election law even a special election has to go through a primary process, and that's why the election won't be until January. The simplest, and least partisan, change would be to allow the governor to appoint an interim senator who couldn't run in the special election. That would solve the problem of a vacancy at a crucial time, and still allow the election process to go through its paces.

Massachusetts politics, however, can be very strange. And the Rethugs have already said they will challenge any change in the law, which could tie it up until the matter is moot by virtue of the election.

Posted by: rrk1 on September 14, 2009 at 6:29 PM | PERMALINK

Just do it. God what an embarrassing set of people. No guts at all.

That may be, but if there is one thing the elected representatives of Massachusetts don't fear, it's the voters.

Here's what few people commenting on this board, and certainly that "classic" Politico-style "Democrats paralyzed" article, don't understand is that there's almost assuredly other issues at play.

Sure, there are numerous good-government Democrats on Beacon Hill. Some of them may even believe in fair play and precedent. And so too, there are very conservative Dems who are just twisting knives into Patrick's plans. But there are also a BUNCH of proxy fights going on.

Maybe there's a block of Joe Kennedy folks who think he can't simply be given the seat, but are worried about the "incumbent" of the seat retaining it when the special election comes around. Maybe there's some other loyalists from some other potential candidacy knowing they'll have a better chance of winning a special election down the road, but not immediately.

All I'm saying -- knowing Massachusetts politics -- is that it's almost assuredly NOT concern about "how they'll look". The overwhelming number of incumbents have next-to-ZERO reason to fear Republican opponents, as few as the GOP might muster. And the forces at play are jockying for a once-in-a-lifetime moment to step into a lifetime position as a Democratic Senator from Massachusetts.

Posted by: Jay B. on September 14, 2009 at 6:35 PM | PERMALINK

Five short years ago the NJ Supreme Court elevated mostly dead candidate Frank Lautenburg (former Soprano "Torch" Toricelli being suddenly "unavailable") and then the NJDems elected the flatliner to the Senate.

Kind of beats a Texas hypothetical for raw Dem scumbagerry, but I'm sure the BayState apparatchiks can top it -- Deval P. is a creature of CHI/Blago stylist Ali G. Axelrod.

Posted by: tao9 on September 14, 2009 at 6:42 PM | PERMALINK

What was hypothetical about Texas' historic gerrymandering, sport? Do you know what the word actually means?

Posted by: Jay B. on September 14, 2009 at 6:48 PM | PERMALINK

I've thought for some time that, since Republicans can't be shamed by exposure of their hypocrisy, we should stop worrying about hypocrisy and just do whatever it takes to keep them out of power. They play to win, but that's all they want to do: win. They can't govern for shit, and most of them don't even try.

What's wrong with us winning by any means necessary if we're doing it IN ORDER TO GOVERN WELL?

Posted by: Mahnkenstein on September 14, 2009 at 7:06 PM | PERMALINK

want the Democratic majorities in the state legislature to change the law back to its pre-2004 wording.

I assume/hope that someone above corrected this for you Steve, but just in case:

Prior to 2004, the gov appointed a replacement to serve out the term. That was changed to have a special election within five months. Now all they want to do is modify that by allowing the gov to appoint a place-holder for the 5 month interim.

Both the 2004 change, and the current proposed change make sense, and in no way contradict each other.

Posted by: Disputo on September 14, 2009 at 7:47 PM | PERMALINK

Sad to see Kennedy die and all that, but holy cow he should not have run the last time, perhaps even the time before that, with respect to his age and his deteriorating health. Same goes for Byrd - give it up already, let a younger person take your place AND KEEP THE SEAT!

Posted by: justsayinagain on September 14, 2009 at 9:20 PM | PERMALINK

This type of stuff is both an embarrassment to legislators who'd pass such a travesty in the first place, and a grave disservice to their own constituents. Regardless of which party controls the Statehouse, a state legislature should never change at its collective whim a prevailing election law statute to address a fleeting partisan political moment. It's unseemly, and it portends only adverse consequences.

This is one time where such mercurial judgment has come full circle to bite its own proponents square in the ass. I'd urge Massachusetts Democratic lawmakers to leave the current statute alone for now, repeal the ill-advised 2004 law only after the special election takes place in January 2010, and then take to heart a very valuable and costly lesson.

Posted by: Donald from Hawaii on September 14, 2009 at 10:44 PM | PERMALINK

Donald, the problem with your solution is that Massachusetts lawmakers are not "learning the costly lesson" - it is the rest of the nation, who will not get a decent health care plan.

Posted by: divF on September 14, 2009 at 11:06 PM | PERMALINK

Actually, Steve, it only *looks* that way. The two parties play by *one* rule, and it's the same rule: "Whatever we do, it has to help Republicans/hurt Democrats."

Republicans do this because they like winning.

Democrats do this because they like to feel like there's something that makes them different from Republicans. Too bad for them -- or, more accurately, for the rest of the party's members/supporters -- that "something that makes [Democrats] different from Republicans" is, quite often, winning.

Posted by: Chris on September 15, 2009 at 12:38 AM | PERMALINK

Dems and Republicans often seem to play by different rules.

No, Steve. Dems play by the rules and Reaps ignore the rules,

Rules are for saps.

Posted by: Sarah Barracuda on September 15, 2009 at 2:31 AM | PERMALINK

"And the Rethugs have already said they will challenge any change in the law, which could tie it up until the matter is moot by virtue of the election."

Just get a body in the seat and vote, God damn it. A challange will take time. Don't let the courts stop you. Appoint someone, send them to the Senate with a "certificate of appointment," or whatever. And let the courts try to unseat a sitting Senator.

Posted by: Sarah Barracuda on September 15, 2009 at 2:37 AM | PERMALINK

The rub in this particular case is the relationship between Gov. Patrick and the Mass. Legislature, which has been rocky at best. Even though the Legislature is Democrat-controlled, it's not the same flavor of "Democrat" as Patrick is, and they would be loathe to give Patrick any powers he doesn't already have.

Posted by: Steve Stein on September 15, 2009 at 8:14 AM | PERMALINK

"Just get a body in the seat and vote, God damn it. A challange will take time. Don't let the courts stop you. Appoint someone, send them to the Senate with a "certificate of appointment," or whatever. And let the courts try to unseat a sitting Senator"

Conciderind how long Reid dragged his feet with Frankin in MN, I dont have a lot of hopes for that

but yeah

Posted by: jefft452 on September 15, 2009 at 9:53 AM | PERMALINK
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