Friday, August 28, 2009

Why Kennedy Matters

[Kerry sharing views with constituents]
The death of Ted Kennedy is a problem for the nation. The Republicans have made it clear that they do not object to the health care reform bill. What they object to is health care reform . The bill, the central item on the administrations' legislative agenda, its New Deal for the 21st Century, depends on the Senate, indeed on just a few senators.

The Democrats have a comfortable majority in the House of Representatives and can pass the bill there. The President of course is certain to sign the bill if it were presented to him because it is his own bill. With Sotomayor giving the Democrats a 5-4 majority on the Supreme Court, it is likely to be found constitutional in the obstructing litigation that will follow if it is adopted.

The obstacle is the Senate. The Democrats have a nominal majority of 61. There are 2 independents - Sanders of Vermont, a socialist, and Joe Lieberman of Connecticut, a lifelong Democrat. Making 63 votes. Versus 37 for the Republicans.

In the Senate legislation in fact requires 3/5 vote (60 senators) on partisan issues, not a majority. The reason is that, since the Civil Rights era, filibuster has changed from a rare and extreme tactic to a routine one. So much so that it was a significant constitutional change when the number of votes needed to end debate, called cloture, thus cutting off a filibuster, was reduced from 2/3 to 3/5.

So the actual vote on a bill is seldom on the bill itself but on the preliminary question of cloture. The ability of 41 senators to block legislation favored by 59 is often said to be undemocratic. Which is exactly true and intentionally so. The United States is a constitutional republic first and a democracy second.

Without Kennedy he Democrats now have only 60 senators. The problem is that the Democrats have within their ranks a number of traitors called Blue Dogs. These are senators posing as Democrats, elected with Democratic votes and Republican money, Democrats in name, Republicans in fact. I have read that there are five or six of them.

There are also three or four moderate Republicans (I suppose that Republicans would consider them traitors too.) who may be willing to break party discipline and vote with the Democrats and the administration.

62 less five or six plus three or four, when 60 are needed means the vote will be close. The greatest likelihood if the Democrats win, it will be by a vote of 60 to 40, the exact minimum. But without Kennedy, the best the coalition of Democrats, independents, and turncoat Republicans can muster is likely 59. Which means they will lose.

If they do lose, it will be a huge victory for the right. The conservatives will be energized (a euphemism for "be able to raise more campaign money") and legitimized. If the Democrats, with the White House, the Court, and big majorities in both houses of Congress, are unable to pass health care reform, a powerfully appealing issue, what reforms will they be able to pass? We will lose not only health care reform but likely the whole reform agenda with it.

Can Kenedy be replaced? The constitution explicitly gives the states the power to decide how senators are chosen. Massachusetts, like most states, used to have the governor appoint a replacement for a mid-term vacancy., followed by an election.

But five years ago when John Kerry, then their senator, resigned his senate seat to run for President, the Democratic legislature changed the law. The new law requires that in case of a vacancy the senate seat remains vacant until the following February and then is filled by an election, not by appointment. Which meant that the then-governor Mitt Romney, a Republican, would not be able to appoint a fellow Republican who could then run as an incumbent. It also meant that if Kerry did not win the presidency, he could run for the senate seat he had resigned. Which he did and is now again senator from Massachusetts.

As to the health care reform bill, February will be too late. Too many of the waverers will have waved back and the 59 votes will have vanished while waiting for the 60th. Absent any change in the votes in the Senate, the health care bill depends on the willingness of the Massachusetts legislature to make fools of themselves, change the law yet again, and put a Democrat in Kennedy's seat.

One possibility would be to appoint someone who would then be ineligible to run in Februrary. That would however be unconstitutional. No one may be made ineligible for office without due process of law and it would be an attainder even with due process. So the hope is that a deal can be worked out in which someone makes a public promise not to run and then the legislature has to hope they keep it. In other words, they have to find among them an honest man.

Anyway, that is what is being debated in Massachusetts right now.

My own suggestion is that they publicly admit what everyone knows, that no Massachusetts politician, once in a senate seat, can be trusted to keep a promise to resign it. It is like looking for a white cat among a group of black cats.

Instead Massachusetts should go with what works - death. They should appoint someone in the late stages of an incurable disease who will be dead by February. That would also necessarily be someone with an intimate knowledge of the health care system and doubtless hold a grudge against it as now constituted - just what one wants.


  1. Damien11:33 AM

    Interesting piece Jack, I was hoping you'd shed some light on the latest sex scandal from San Francisco, memories of you saying something about San Francisco and consensual sex between adults come flooding back and its making me LOL very hard. Tell us more, this story has the potential to be as funny as the Josef Fritzl debacle.

  2. Anonymous1:07 PM

    Damien WTF are you talking about?
    A great & good American has died and there life and death issues at stake!!!


  3. Christy3:53 PM

    Poor Ted Kennedy. He had his demons, but the man also had integrity. One of the last great Liberals to leave American politics and be replaced by snivelling sycophantic 'moderates'. Kennedy is an historical case all by himself - youngest son of the Kennedy three, the man had potential to do anything, but was always beset by scandal. He is one of the few Irish Americans who can hold his head up high in the way he played his part in the peace process. America has lost one of its great sons, and also the death of the last chair in Camelot.