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Democrats Could Seek to Delay Seating Brown

Democrats Could Seek to Delay Seating Brown

By Mike Memoli & Kyle Trygstad - January 13, 2010

Should Republican Scott Brown pull off an upset victory in next week's special election in Massachusetts, Senate Democrats may seek to use the chaos surrounding the appointment of Roland Burris last year as a precedent for delaying the swearing in of a man who campaigned as the 41st "no" vote on health care reform.

When the disgraced and soon-to-be-impeached Illinois Gov. Rod Blagojevich chose Burris for Barack Obama's vacant Senate seat, Democratic leaders delayed seating him by citing a statute that required a formal certificate of election to be signed by all appropriate state officials. The Illinois Secretary of State had not signed it, so the Secretary of the Senate held the controversial appointment for days.

So now, even though a special election to finish the late Edward M. Kennedy's unexpired term is set for Tuesday, it could be a month or even longer until that successor is sworn in -- whether it is a Democrat or Republican. That's a notable difference in procedure from the House; just last November, New York Democrat Bill Owens was immediately sworn in after his close win in the 23rd District. In Massachusetts, Democrat Niki Tsongas took office just days after her close victory in an October 2007 special election.

In the latter case, Brian McNiff, a spokesman for Massachusetts Secretary of the Commonwealth Bill Galvin, explained that Tsongas was sworn in on the basis of a letter from his office saying that unofficial tallies indicated she was the winner, and that the result was not being contested.

"That was sufficient for the House. Apparently that is not sufficient for the Senate," McNiff said.

Under Rule II of the Standing Rules of the Senate, a certificate of election must be signed by a state's governor and secretary of state, and presented to the Secretary of the Senate before a newly-elected senator can be sworn in. A spokeswoman in the Senate secretary's office said that was indeed standard procedure and could not think of an instance where that rule was not followed.

According to McNiff, that document won't be issued from Galvin's office for weeks. Cities and towns must by law wait 10 days for overseas and military absentee ballots to come in. They then have 50 days from the date of the election to certify their results and submit them to the secretary of the commonwealth. Once received, the Governor's Council certifies the outcome and issues a certificate. That timetable could stretch as late as March, though McNiff said it should take less time since the Senate race is the only contest on the ballot next week.

In the event of a Brown victory, Republicans in the state are worried the certification process could be delayed for the benefit of Democrats' health reform bill. One Massachusetts Republican operative not affiliated with any campaign in the race went so far as to claim Galvin sees his own interests in play, and that prolonging the certification would make him a hero to his party and enhance his stature for future statewide bids. A Brown campaign spokesman was equally cynical.

"The political machine in this state is going to use every trick in the book to hijack this election and, failing that, they'll do whatever they can to stop Scott from having a voice in the healthcare debate," said Eric Fehrnstrom. "The political bosses may think they run things, but Scott Brown is running in the name of every independent-thinking citizen to take on one-party rule, and the bosses, and their candidate."

The Burris precedent does give Democrats some cushion when it comes to reconciling the House and Senate health care bills before a potential Republican takes that seat. But the larger question is whether that would be a politically wise move. Brown has campaigned unabashedly as the man who could halt a vote on the bill. So the prospect of an unelected Democratic appointee -- in this case, Paul Kirk, appointed in September to temporarily replace Kennedy -- casting a yea vote even after voters arguably signaled their opposition could only add to the headache Democrats face in defending the plan ahead of midterm elections this fall.

All of this will be moot, of course, should Democrat Martha Coakley emerge victorious next week. However, recent polling has shown the race is far closer than expected, and Brown's strong performance in Monday's nationally televised debate has some in the GOP believing he could become the lone Republican in the state's 12-member congressional delegation.

Outside groups are reportedly ramping up their spending this week, and recent activity at the Democratic National Committee and Democratic Senatorial Campaign Committee indicate they are taking Brown's candidacy seriously.

Inside the Capitol, though, House and Senate Democrats have not even discussed a contingency plan should Brown pull off a major upset, according to senior leadership aides in both chambers and at the White House. There is no timeline for completing a compromise between the two chambers, and no need to hurry negotiations because few believe Brown has much of a chance to defeat Coakley.

"He won't win," a House leadership aide said flatly.

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Mike Memoli & Kyle Trygstad

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