Filling Sen. Kennedy's seat

Originally posted at Congress Matters.

With the passing of the Lion of the Senate, the question now turns to who will fill his seat. As much as I think Barney Frank is one of the few people who can live up to Uncle Teddy's legacy, I am nominating Eric Mogilnicki, Kennedy's chief of staff. Follow me on this.

Less than a week before his death, the always forward-looking Kennedy urged his state to prepare for his imminent passing. He of all people recognized that he was not mortal and that someone else would need to carry on his work, particularly on health care reform. Kennedy was obviously focused on the political calculus. The vote of a liberal Democrat from Massachusetts will almost certainly be needed to pass a meaningful public option during this session of Congress.

The problem is that a special election to fill the seat cannot possibly take place in time to seat someone before any vote will be held.

From The Hill

The special election must be held between 145 and 160 days after the vacancy occurs. Since Kennedy died late Tuesday, that puts the window between Jan. 17 and Feb. 1. Holding the race on a Tuesday, a traditional Election Day, would mean Jan. 18, Jan. 25 or Feb. 1.

Kennedy wanted the state legislature to change a 2004 law setting the special election, but forbidding the governor from appointing even a temporary "seat warmer." This law was passed to prevent then governor Mitt "Mittens" Romney from appointing a Republican to fill a seat left vacant by a possible President John Kerry. With a Democratic governor, Deval Patrick, now in office in this overwhelmingly Democratic state, the dynamic has changed. (One question, why did you vote for Mittens, Massachusetts?)

From the New York Times

Abby Goodnough, The Times’s Boston bureau chief, noted in an article published today that Gov. Deval Patrick spoke with the Senate Majority Leader, Harry Reid, on Wednesday. The topic at hand is how and when to fill the seat long held by the state’s senior senator. On Wednesday, the governor vocally and publicly endorsed Mr. Kennedy’s wishes that a special appointment be made to replace him, in lieu of state law providing for a special election several months hence.

And it looks like the state legislature is willing to go along.

Also from the Times:

Wednesday, Democrats in Washington stepped up pressure on the governor to see Mr. Kennedy’s wish fulfilled, and state legislative leaders said they would immerse themselves in the issue after a mourning period for Mr. Kennedy.

snip

The governor said he would sign a change in the law if the legislature approved it. He said it was important for Massachusetts to have two voices in the Senate as Congress prepares to vote on overhauling the health care system — contentious legislation whose passage may well require every Democratic vote.

And we assume that anyone Patrick appoints would be in favor of the public option. (For some odd reason, Mittens fairly publicly took himself out of the running for the seat. Hey, I'm not seeking that seat, either. Can I get a story over here?)

Is this all blatantly partisan? You betcha. Can Massachusetts actually decide the ultimate fate of health care reform? Yep, in much the same way as six Senator representing 2.75 percent of the country can save or kill reform. Sorry. That's politics. As a partisan, I'm all about this change in the rules. As a student of politics, I'm uneasy about abruptly changing the rules for political expediency.

The individual states, as we are aware, are responsible for replacing their own Senators and they all have a motivation to select a replacement as quickly as possible. When Barack Obama and Joe Biden were elected, four states found themselves in this unenviable position. The results were, shall we say, mixed. We had:

The best possible decision,

A jockey for position that went largely unnoticed outside of Colorado,

A comi-tragedy that played itself out on the national stage and,

What can be charitably described as a gigantic clusterfuck

The American people absolutely must be allowed to vote for Senate replacements. They also absolutely deserve representation in that body and a vacant Senate seat is patently unfair to the residents of that state. Exhibit A: Minnesota.

Therefore, the governors of each state ought to retain the power to appoint a "benchwarmer" until an election can be held. Should he/she be required to pick someone of the same party as the outgoing or deceased Senator? No. Obviously, a Romney-Kerry dynamic is problematic. A governor who is allowed to pick anyone to serve temporarily has an incentive to appoint a strong member of his/her own party. If the governor is required by statute to pick someone from the opposite party, the obvious option is to pick a corrupt ditch digger who happens to be a member of the party.

This is why I have always thought that the appointment of Ted Kaufman to fill Joe Biden's seat until the next election. Kaufman was Biden's 19-year chief of staff. This person essentially acts as a vice senator, generally holds the same views as the boss, and knows what is going on in the office. This person, in almost every case, would be a hard worker who reflect the views of the person who was elected.

I would offer this as the best reform. Elevate the chief of staff to the Senate until a special election can be held. I still don't like that Kaufman will be in office until Joe's son runs in 2010, but it is the best we could do under the rules.