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Counting The Days: Will Kennedy's Quick Seating In 1962 Repeat Itself?

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MA Senate Candidate Scott Brown (R), the late Sen. Ted Kennedy (D-MA) and State AG and Senate Candidate Martha Coakley (D)

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In preparation for what they expect to be Republican Scott Brown's victory in the Massachusetts Senate special election tonight, conservatives and Republicans have unearthed a novel and ironic precedent, which they're using to argue that, if he wins, Brown should be seated right away as the 41st vote against health care reform.

Senate rules require that all newly-elected Senators be certified as winners by their home states before they can be sworn in. But on November 6, 1962, none other than Ted Kennedy himself won a special election to fill his own brother's Senate seat in Massachusetts, and was sworn in the very next day--two full weeks before his victory was certified, and three weeks before that certification arrived in Washington.

1962 is a long way back, and according to Senate historian Don Ritchie, the relevant rule has been in place since well before then.

"Senators have always had to be certified to be sworn in," he says.

So why the exception for Kennedy? The short answer is the Senate disregarded its own rules and seated him despite lacking certification (the state certificate arrived a few weeks later). The longer answer is that there are some important differences between Kennedy's election 47 years ago and this year's race in Massachusetts.

Most crucially, according to Ritchie, the Senate was not in session in November, 1962, which means nobody was around to object to seating him immediately--the rules were waived and Kennedy was sworn in without certification. "Kennedy was sworn in the next day," Ritchie emails. "He won by a commanding majority, and the Senate was not in session, so there was no challenge, even though the paperwork for his certification came later."

In other words, if Republicans want to seat Brown (should he win) a la Kennedy the Senate would have to waive the rule, and swear in the 41st vote against health care. That won't be easy: Rules are suspended by unanimous consent, which means any one member can say "no way."

Senate leadership has been very clear: they're waiting for official documentation. "When there is a certified winner in Massachusetts, the Senate has received appropriate papers, and the Vice President is available, the successor to Senators Kennedy and Kirk will be sworn in," says Jim Manley, spokesman to Senate Majority Leader Harry Reid.

That means, among other things, military and absentee ballots will have to be counted, in accordance with Massachusetts law, before a winner can be certified--a requirement that was not in effect back in 1962.

And, Democrats say, the precedent is not on Republicans' side. Just this Congress, two Democrats--Sen. Roland Burris (D-IL) and Sen. Al Franken (D-MN)--have had to grapple with the certification question. Burris had to go to the state Supreme Court to get a declaration that his appointment by soon-to-be-impeached Gov. Rod Blagojevich constituted a fully valid certification, even though the Illinois Secretary of State refused to co-sign the document. In Franken's case, Republicans refused to allow him to be seated until months and months of GOP-led court challenges to his very narrow win were resolved. (Minnesota law didn't allow for a certificate to be issued until the state court challenges were resolved.)

One can go back further still. In 1994, Republican Fred Thompson won a special election and took over the seat Harlan Matthews had been appointed to, and in 2002, Republican Jim Talent won a special election and took over the seat Jean Carnahan had been appointed to. In both cases, the appointed Senators continued to serve and vote until the winners had been certified and sworn in.

That's where part two of the conservative case for a swift seating comes into play. They point to the 2007 House special election in Massachusetts of Rep. Niki Tsongas (D-MA), who was seated before officially certified. When Tsongas won, the clerk of the House requested, and the Massachusetts Secretary of the State provided, a special letter which stood as a temporary stand in for official certification.

"The Secretary sent a letter to the Clerk of the House at the Clerk's request, which said, on the basis of unofficial returns, it appears...Niki Tsonagas has been elected, there has been no contest -- in other words, no recount -- and [she was] sworn into the House," said Brian McNiff, spokesman for spokesman for Massachusetts Secretary of State William Galvin. "The Senate doesn't do that."

"The Secretary has said if the Senate requests a similar letter and the circumstances are similar, it's obvious who won the election, he would send a similar letter to the Senate," McNiff added. "At this point it would be a waste of time to send a letter to them, since under their rules they're not acting on unofficial returns."

There are more wrinkles, too. The House and Senate are different bodies, governed by different rules, and it isn't clear whether the Secretary of the Senate would honor an unofficial certification. (We're working on an answer to that question.) And in Tsongas' case, the seat she filled was actually vacant--awaiting certification would have meant delaying representation for Tsongas' district. By contrast, the Senate seat in Massachusetts will be filled by Sen. Paul Kirk (D-MA) until a new member is sworn in.

All of which is to say: it's not quite as simple as those demanding a quick turnover would like.

Comments (38) | Join the Conversation!

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January 19, 2010 3:02 PM   

As if any of that will mean jack to the Republicans or to the Village asshats if Brown wins. I mean, c'mon, all of that stuff happened more than a week ago. Ancient history.

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January 19, 2010 3:17 PM    in reply to The Commenter Formerly Known as NCSteve

Say it with me...

IOKIYAR

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January 19, 2010 3:08 PM   

I would suspect that the House (in the case of Tsongas) and the Senate (in the case of Kennedy) suspended the rules in order to swear in their new members so quickly. I don't see any pressing need for the Senate to suspend the rules in this case...not that it matters.

If Brown wins, I sincerely believe HCR is dead. Whether he's sworn in tomorrow or six months from now will make no difference.

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January 19, 2010 3:22 PM   

Yes. Seat him quickly!!

Then we can move quickly to reconciliation with a robust public option.

Good riddance to the BiPart, Super Majority, Joe Lieb ass-kissing B.S.

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January 19, 2010 3:22 PM   

Burris and Franken are the only examples that should matter, and there's tons of quotes from Senate Republicans that say they would fight any attempt to seat someone without an election certificate. Go dig them up.

Pass the Senate Bill!!

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January 19, 2010 3:32 PM   

Does anyone know if Paul Kirk can still vote after election day prior to the next senator being seated?

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January 19, 2010 3:41 PM    in reply to micburke

The law says he's the Senator until his successor is "duly elected". I don't know how that can be read not to require that the election result be certified by the SoS (though of course conservative judges have amazing interpretive powers).

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January 19, 2010 3:43 PM    in reply to micburke

Senators continue to hold office until their replacements are sworn in. As long as Coakley/Brown have not been sworn in yet, Mark Kirk remains the junior Senator from Massachusetts.

And, per the US Constitution, he retains the ability to vote on matters of Senate business.

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January 19, 2010 3:56 PM    in reply to micburke

If you read the article, it clearly states that other senators who were appointed continued to vote until the newly elected senator was "sworn in."

If the Senate won't seat Brown without a certificate, they can't strip Kirk of his vote. To do so would be to deny MA equal representation.

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January 19, 2010 4:24 PM    in reply to FreeRider

Kirk can be stripped of his vote only by expelling him from the Senate, which would require a vote of two-thirds, or by seating his successor.

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drv

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January 19, 2010 3:32 PM   

Any bets on who will be the first Republican to come out for *not* counting the absentee votes and the military votes for this election? How, oh how, will they spin it that ignoring the votes of the military is the patriotic thing to do? It's gonna be fun to watch!

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January 19, 2010 3:36 PM   

Does it matter? I think the most practical and fastest way to pass the health care reform bill is just have the House pass the Senate bill and then spend the time to make adjustments through reconciliation.

If the House wanted they could pass the Senate bill in a couple of days.

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January 19, 2010 3:42 PM   

Drag this out as long as possible.

Remember Norm in Minn?

Have the voters punished the GOP for that?

No.

So do what they did.

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January 19, 2010 5:11 PM    in reply to AnswerFrog

Just fyi.

A statewide recount is automatic in Massachusetts if the margin between the top two candidates is 0.5% or less.

Franken / Coleman 2010? New England style? We'll see.

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January 19, 2010 3:57 PM   

A point to note is that the rules of any organization (including the Senate) must be enforced or they have no meaning.

The presiding officer may not know the rules of the body or the precedents it has established. The Senate deals with this by employing the Parliamentarian and his staff to record and advise whoever is presiding at the time on the rules. (Since the person who presides rotates.)

The presiding officer can validly ignore the rules and precedents of the Senate, either deliberately or accidentally. However, members of the Senate are allowed to point out when they believe the rules are being ignored (a so-called "point of order"). This is much like in a court where a lawyer announces an objection to something his opponent says and the judge decides whether to allow it to proceed or not.

If the presiding officer's ruling (which is almost always under the advice of the Parliamentarian) is not accepted by that Senator, the Senator may request the Senate vote on it.


If the Senate is not in session, there is no one to object (no one to raise the point of order) to seating the Senator immediately in violation of the rules. That doesn't mean the rules were followed, it just means that the rules were dispensed with by default.

If the Senate is in session when the Senator could be seated, there is no opportunity to do this.


The pro-Brown group will have to wait until the certified election results are submitted to the Senate. Too bad.

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January 19, 2010 4:03 PM   

Is there a question???

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January 19, 2010 4:29 PM   

Can a Senator-elect by sworn in and seated the next day after an election ? Technically, YES, if the Senate agrees by unanimous consent to waive its Rules. Fat chance on either side. Otherwise, the Senate Rules govern, as the Senate is the the judge of the elections, returns, and qualifications of its own Members (Art. I, Sec. 5, cl. 1), and has the authority to make its own Rules (Art.I, Sec. 5, cl. 2). Senate Rule II provides that to seat a “Senator-elect” and make such person a “Senator,” the Senate requires the presentation of “credentials” in proper form from the person claiming the seat. (Riddick, Senate Procedure, pp. 704, 708-710). Such “credentials” are the election certificates duly signed by the Governor and Sect'y of State. Senate Rule II, para. 3. Unless the Senate is in "sine die" adjournment, the Senator-designate appointed to fill the vacancy serves until the next Senator is elected and “qualified.” See Riddick, supra at 710. 2 U.S.C. sec. 36 “Qualified” here is used as a verb - and simply means given the oath of office by the Senate, i.e., seated because he/she meets the qualifications for office, and is shown by the credentials presented to be "duly elected."

According to S. Doc. 95-108, "The Term of a Senator - When Does it Begin and End?" by Floyd Riddick (Parliamentairan Emeritus), the Senate has agreed that: "The appointee holds the office and draws the pay until the Senator-elect takes the oath ..." (p. 13, see S. Res. 129, 85th Congress).

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January 19, 2010 4:44 PM   

Well it's nice to see that all you liberals are resolutely focused on procedural minutia and how it may allow a bill to reorganize 1/6th of the economy, that clearly lacks the support of a majority of the voting populace, to become the law of the land. Well done folks. I'm glad to see that you can step back from the nitty gritty and take in the bigger picture that is now very clearly in focus after the messages of Virginia, New Jersey, Mass., Westchester County (its a long list, but I'll stop there for the sake of brevity).

There comes a time in every Presidential administration when they have to assess the course they are on after the giddy early days following the election. That time has come for Obama. The country is quite clearly rejecting his agenda as reflected in the polls and the elections. He hasn't even made it to the mid-term elections and he's already in the ditch!

Might I humbly suggest that all the members of the left assemble here step away from the keyboard and reflect on what has happened in the last 3 months and the message that the country is sending you. I'm sorry to be the bearer of bad news, but most of the country does not resemble Cambridge, Berkeley or the Upper West Side, and a legislative agenda that warms the hearts of residents from those burgs will never fly in our system of checks and balances - there simply aren't enough people that will support it.

Time for a plan B folks (Yes, I really did hear a comparison of Obama to Carter on TV today - first one that I can recall, but after the votes are toted up tonight, it probably won't be the last.) Start at the center and build a coalition outward from there (that is what Obama promised in the campaign after all). You won't get all you want, but you will actually get something done, and it will have enough support that it won't be overturned in 1 or 3 years time. I realize this is a bitter pill, but you're going to have to wait a while longer to realize the dream of the liberal utopia. The country isn't ready to follow you there. Don't blame us when you turn around and find that no one has joined your parade.

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January 19, 2010 5:04 PM    in reply to Equityval

The message they are sending is:

"The economy still sucks!! And we ARE NOT Happy."

To suggest its about anything else is just bullshit. People in Massachusetts could care less about your ideological rants. Or ours out here on TPM for that matter.

Even Brown admits the only reason he is against the current HIR bill in Congress, IS BECAUSE MASSACHUSETTS ALREADY PASSED HIR. So how does that help HIS state?

You willfully ignorant Republicans have put this country so far in a hole economically, even the Democrats can't dig us out in quick fashion this time.

Great Job to you and yours; asshole. Now get the hell out of here.

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January 19, 2010 5:12 PM    in reply to Equityval

Republicans have been comparing Obama to Carter since 1/20/09.

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January 19, 2010 5:18 PM    in reply to Equityval

Might I suggest that your twaddle about Berkeley, Cambridge and the Upper West Side, all highly educated, affluent parts of the country is a load of hooey. The citizens of all three burgs you mentioned are fully cognisant of the system of checks and balances we have in this country, and could teach the rest of the country something. And as far as a system of checks and balances is concerned, the Democrats have more than enough of it within their own diverse caucus of liberals, conservadems, independents, and even one socialist (Bernie Sanders). As for governing from the middle, that's exactly what this President has done. The stimulus bill? A moderate bill. Healthcare? Virtually no government control other than regulation of bad practices like denial of coverage for pre-existing conditions. The bail outs? All recommended by the Fed, hardly a bastion of left-wing reactionaries. The war in Afghanistan? A response to the military's demands from day one (in stark contrast to his predecessor). None of these even vaguely resemble the principals of any "liberal utopia." They're all moderate to right of center legislative provisions that any Republican, other than the obstructionists in the GOP today would have voted for even in 2003. In fact, the GOP 2003 Medicare Modernization Act, an unfunded mandate that created Medicare Part D and that blew a $ 1 trillion hole in the budget was supported by all the Republicans. So much for THEIR conservative agenda. For crying out loud, Scott Brown voted for RomneyCare in MA, a healthcare plan far more to the left of anything that's passed the US Senate.

I'm a pragmatist and a slightly right of center Democrat who is appalled that the current legislative agenda of this White House and Congress is being pilloried as some socialist plot. That's pablum hoisted on a poorly informed and angry electorate, and I'm surprised that someone like you who writes well has fallen for it.

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January 19, 2010 6:05 PM    in reply to jsdc007

He hasn't "fallen" for it. He's just being disingenuous.

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January 19, 2010 4:52 PM   

Ask Al Franken how he feels about it!

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January 19, 2010 4:56 PM   

Coakley might win. Big turnout. Stay tuned!

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January 19, 2010 5:03 PM   

Pardon my French, but who the fuck cares what Republicans demand? After the shit Coleman pulled with Franken (with the full support of the GOP), Senator Cheesecake can cool his heels for two weeks and wait for MA certification. I honestly couldn't care less what Senate Republicans did in 1962 for Teddy, they've more than used up any favors owed to them since then.

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January 19, 2010 5:13 PM   

At what point will everyone realize that Republitard days are numbered and just relax? In my lifetime, albeit perhaps some decades from now, the rise in population of Blacks, Hispanics and other minorities will overwhelm in absolute number the amount of racist, cousin-loving, Southern white-trash that forms the base of the Republitard party. How exactly do Republitards plan to win when they cannot win any percentage of minority voters that even approaches competitiveness?

All of this Scott Brown crap is just that, pure crap. Republitard days are numbered and the end is coming. They can put some know-nothing Uncle Tom at the head of their party, but it does NOT change the fact that a majority of their base is nothing more than a bunch of racist trash.

When the revolution comes, and it will come, I advise they refrain from standing in front of any brick walls. Others may not be as forgiving of their evil ways as I am.

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January 19, 2010 5:21 PM   

@willia451

Thanks for the thoughtful debate of important issues. I guess when you really have no effective response, you can always turn to epithets. Well done.

Good luck maintaining the reality distortion field. Willful ignorance is going to become a full time job for you. But never mind what I think, it turns out I spoke too soon, I've now seen a second reference comparing Obama and Carter. How long until the Obama as Carter meme goes mainstream - care to place any bets?


http://www.politico.com/arena/

Larry J. Sabato
Professor of Politics, University of Virginia :

Dear Rahm,

I remember 2006, when you richly earned your reputation as a political tactician and energy machine without peer. Your talents are needed again, for your president is well on his way to becoming another Jimmy Carter. Like Carter (though it happened later in Carter’s term), Barack Obama has been dealt some dreadful cards. But lousy hands can be well played. Bill Clinton got a lousy hand, too, and he shrewdly turned adversity to strength, and won reelection. Which Democratic president will be your role model for Obama--Carter or Clinton? To ask the question is to answer it.

No sense re-hashing the mistakes of the past year. It’s obvious to almost everyone that Obama over-read his mandate, just as most presidents have done. Democrats have restored the once-discredited charge the GOP made against them: “Tax and tax, and spend and spend.” Oh, and now you’ve added a third phrase to the litany: “Debt and debt.” Yes, this is ironic to the max, considering that the Bush administration and a Republican Congress doubled the national debt and spent wildly without paying for its priorities. But political reality is what it is.

The way out is painful but simple. Make economic recovery your exclusive domestic focus. Reduce health care reform to bare-bones items that are supported by large majorities. Stop trying to remake the world in one fell swoop during hard times. The current jerry-built rig probably won’t work as advertised anyway. Drop the other controversial items from your agenda, such as most of climate change and all of card check. They aren’t going to pass, and there’s no sense encouraging mass political suicide in the Democratic congressional caucus by forcing unnecessary votes. As we’ll all see in November, there will be plenty of casualties as a consequence of votes already cast. Focus on incremental changes that matter, such as federal court appointments. Become the Democratic administration that solves the national debt and entitlement crises left by your predecessors of both parties. Aggressively fight for the little guy against the greed of the big boys in the banks and on Wall Street—and mean it.

Symbolic hand-slaps won’t do. Populism is good politics, but only if people believe you

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slb

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January 19, 2010 5:54 PM    in reply to Equityval

Shorter Sabato: Doing the right thing for the country is hard and unpopular. Take a page out of the GOP book: screw the country, do what will win for you in the short term. In the long run, we are all dead anyway.

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January 19, 2010 6:04 PM    in reply to slb

Exactly.

We know about 35% of opposition to the bill is merely reflexive partisanship.

The rest extends from the fact that Obama is trying to fix things that people are making money from at the public's expense (i.e., Medicare cuts) or backing off on popular progressive ideas (i.e., drug reimportation).

Anyone trying to pass off Romneycare as a far left idea is an ideological hack. Anyone who thinks tonight's results are anything other than a result of the unemployment situation is an ideological hack.

Ergo, EquityTroll is an ideological hack.

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January 19, 2010 5:27 PM   

I agree Obama is starting to smell like Carter. But I'm not worried, the demographic shifts in our country will eliminate the old, inbred, racist Republitards in my lifetime. I sleep well knowing that the revolution is coming and it isn't going to be a bunch of tea baggers leading it.

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January 19, 2010 6:54 PM   

Stroszek,

I'm not the only way who sees it this way. Since you have a hard on for Republicans (which let me repeat, I am not), here's something from a fellow Democrat that you might want to take a moment and read:

ABC News' Jonathan Karl reports:
Even before the votes are counted, Senator Evan Bayh is warning fellow Democrats that ignoring the lessons of the Massachusetts Senate race will “lead to even further catastrophe” for their party.
“There’s going to be a tendency on the part of our people to be in denial about all this,” Bayh told ABC News, but “if you lose Massachusetts and that’s not a wake-up call, there’s no hope of waking up.”
What is the lesson of Massachusetts – where Democrats face the prospects of losing a Senate seat they’ve held since 1952? For Senator Bayh the lesson is that the party pushed an agenda that is too far to the left, alienating moderate and independent voters.
“It’s why moderates and independents even in a state as Democratic as Massachusetts just aren’t buying our message,” he said. “They just don’t believe the answers we are currently proposing are solving their problems. That’s something that has to be corrected.”
Bayh pointed that it’s not just Massachusetts. Independents also rejected Democratic gubernatorial candidates in New Jersey and Virginia in November.
“ The only way we are able to govern successfully in this country is by liberals and progressives making common cause with independents and moderates,” Bayh said. “Whenever you have just the furthest left elements of the Dem party attempting to impose their will on the rest of the country -- that’s not going to work too well.”


http://blogs.abcnews.com/thenote/2010/01/bayh-warns-catastrophe-if-dems-ignore-massachusetts-senate-race-lessons.html?utm_source=twitterfeed&utm_medium=twitter

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January 19, 2010 7:23 PM    in reply to Equityval

Obvious troll is obvious.

If you want to be less obvious, lay off the gleeful gloating and dismissive insults until after you're forced to ignore my rebuttal of your facile opinion.

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June 6, 2010 10:42 PM   

The presiding officer may not know the rules of the body or the precedents it has established. The Senate deals with this by employing the Parliamentarian and his staff to record and advise whoever is presiding at the time on the rules. (Since the person who presides rotates.)

The presiding officer can validly ignore the rules and precedents of the Senate, either deliberately or accidentally. However, members of the Senate are allowed to point out when they believe the rules are being ignored (a so-called "point of order"). This is much like in a court where a lawyer announces an objection to something his opponent says and the judge decides whether to allow it to proceed or not.

m65 kamagra

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