For the third time, Massachusetts Tweaks Its Senatorial Succession Policy To Keep Democratic Senator

June 4th, 2016

The Boston Globe reports that Senate Minority Leader Harry Reid is researching ways to keep Massachusetts’s Senate seat filled by a Democrat in the event that Elizabeth Warren runs as VP. The goal is to prevent GOP Governor Charlie Baker from appointing a temporary replacement Senator–even for a few months. There is a long history of Massachusetts futzing with its laws to keep the Senate seats out of the hands of Republicans–first when Mitt Romney could have appointed John Kerry’s successor and then again when Devall Patrick had to appoint Ted Kennedy’s successor. I include this discussion in Unraveled:

Senator Kennedy, who for decades championed universal health coverage, died in August 2009. Months earlier, as the ailing Kennedy was losing the battle against a cancerous brain tumor, and the Senate’s sixtieth vote was in jeopardy, the “legislative technician” took precautionary measures. Massachusetts law provided that Kennedy’s seat would remain vacant until a special election was held a few months later. The Nevadan urged Massachusetts Governor Deval Patrick, a Democrat, to change it. [1] Reid explained that unless Kennedy’s seat was filled immediately by a gubernatorial appointment, it would deny the Democrats a filibuster-proof majority. Kennedy personally made a similar request to the governor in a letter shortly before his death.[2] In September 2009, the Massachusetts legislature approved a bill to allow Gov. Patrick to appoint a temporary successor for Kennedy, with a special election to be held 160 days later.

Ironically, five years earlier, the Democratic-controlled legislature had changed the law to block then-Governor Mitt Romney, a Republican, from potentially appointing a replacement for then-presidential-candidate Senator John Kerry, a Democrat. Politifact gave the Bay State a “resounding full flop,” as both actions only served to advance the “Democratic Party’s interest.”[3] Even more ironically, Kennedy himself supported the now-repealed special election bill in 2004 to hamstring Romney.[4] All politics, even national politics, is local. With the new law, Gov. Patrick promptly appointed Democrat Paul G. Kirk, Jr. as interim senator, with a special election to be held on January 19, 2010. Kirk would be the sixtieth Democrat to vote for the ACA on Christmas Eve, 2009.

Now, once again, the situation is reversed. So what is the canard this time? Well, they can’t change the law because the Governor would likely veto it. Instead, they will play games with timing the special election to prevent the Republican Governor from making the appointment.

In the event of a Senate or House vacancy, Massachusetts currently requires a special election to be held within 145 to 160 days. In the interim, the governor has the authority to appoint a successor. But Reid’s team has identified a portion of the law that allows an officeholder to start the special election clock by filing a resignation letter, but also announcing an intention to vacate the seat at a later date.

In theory, Warren could file such a letter 145 days before the Jan. 20, 2017 inauguration and successfully block Baker from picking any temporary replacement. But that would expose Warren to a potentially awkward position. If Clinton lost the November election and Warren wanted to keep her Senate seat, she would have to make the politically difficult decision of rescinding her planned resignation — or run for an open seat that she created.

A more likely scenario would be that Warren would start the clock ticking for a special Massachusetts ballot only if Clinton won, with an intent-to-resign letter dated the day after the Nov. 8 national election.

That would give Baker’s temporary appointee less than three months to serve between Inauguration Day and the special election. While that might prevent a Democratic majority from taking over in January, the damage, from a Democatic perspective, might be limited to a short period of time until Massachusetts’s Democrat-leaning electorate went to the polls to elect a senator in a special election.

Say what you will about the 17th Amendment, but these sorts of backroom deals were probably a lot more common back then.