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A Healthcare Brownout

Friday, January 15, 2010

A Scott Brown win will deal a nearly fatal blow to the current healthcare overhaul approach.

Recent polls show the possibility of Republican Scott Brown beating Democrat Martha Coakley in a special election to fill the Senate seat of Ted Kennedy. No one saw this coming a month ago. But now both parties see the significance.

After Kennedy’s death, Massachusetts changed its laws to allow the governor to appoint a temporary successor to the seat until the special election is held on January 19 to fill the remainder of the term. That seat is now held by Senator Paul Kirk, a reliable Democratic vote on healthcare.

Republicans see Brown as the man who could kill healthcare overhaul. He would keep Democrats from having 60 votes in the Senate to vote for cloture to break a Republican filibuster.

Republicans see Brown as the man who could kill healthcare overhaul.

Democrats have started to worry about a Brown victory, but their worrying has taken two forms. First, some Democrats are hoping that even if Brown wins, the Democratic secretary of State of Massachusetts could delay certifying the election, or the Senate Democrats could drag their feet in seating Brown, and in the meantime they could pass healthcare with their 60-vote majority intact for at least several weeks after the election.

Second, Democrats see the potential for a Brown victory as a spur to move more quickly. For them, a Brown victory would not kill healthcare, but force Democrats to make a final agreement in record speed.

Both of these arguments are problematic. Both legally and politically, Democrats will have a hard time not seating Brown quickly.

Assuming Brown wins by a clear margin (not less than 0.5 percent), all Democratic arguments about the need for certification of the election will be against the spirit of the Seventeenth Amendment, which allows temporary appointments until a special election is completed.

Both legally and politically, Democrats will have a hard time not seating Brown quickly.

Democrats have argued that there are certain deadlines, such as the need to count all overseas ballots. And certainly all of those ballots must be counted. But as long as the outcome is clear and the overseas ballots could not possibly affect the election, it is not uncommon for election officials to send the name of the winner to Congress for seating with the exact final tallies to be finalized later. In fact, the secretary of State of Massachusetts did just that for Representative Niki Tsongas, a Democrat, after her special-election victory in 2007. She won with 51 percent of the vote, and only two days after the election, Secretary William Galvin wrote a letter to the House declaring her the winner, and she was sworn in.

Some argue that the Senate is different because the Senate did not seat Democrat Al Franken as Senator until a long set of challenges were exhausted and an official certification was sent. But in Franken’s race against Norm Coleman, the contest was decided by less than a thousand votes and in the initial counts Coleman led. Minnesota conducted a fair process, but no one could argue that the race was not in doubt and that a small decision of a board or court might have tipped it the other way. Waiting for certification does not make sense when the outcome is not in doubt.

Could Democrats speed up their deliberations on healthcare? They have. Both the hopes of a bill by the State of the Union address in January or February and the potential for a Brown win have focused their minds. But there is still too much to do to pass the bill quickly.

Democrats still need to resolve tax and abortion issues, finalize legislative language, and get a Congressional Budget Office score for the bill. This will not happen in a week.

What Democrats ultimately need to do is to have a cloture vote when they have 60 votes, not 59. A final passage vote that would follow a few days later is not problematic, as they will clearly have 51 votes.

But Democrats still need to resolve tax and abortion issues, finalize legislative language, and get a Congressional Budget Office score for the bill. This will not happen in a week.

The biggest problem for Democrats will be political. If Brown wins by a clear margin, his election will be seen not as just another vote in the Senate, but a referendum on healthcare overhaul. Any attempts to delay Brown’s seating or to ram a bill through Congress under these circumstances will be seen as heavy-handed, arrogant, and ignoring voters. There may be some brave talk about having a momentous final cloture vote in the Senate in such a case, but there will be overwhelming public pressure not to. Would Democratic Senator Ben Nelson of Nebraska vote for cloture under those circumstances? Would Democratic Senator Blanche Lincoln of Arkansas, who is up for election?

Despite the talk of finishing quickly, a clear Scott Brown win will almost certainly mean no healthcare bill as it is currently being negotiated. It could mean a more modest version, with Democrats engaging Republican Senator Olympia Snowe, but that will take time or may be too tough to pull off as the midterm election approaches.

A Scott Brown win will deal a nearly fatal blow to the current healthcare overhaul approach.

John C. Fortier is a research fellow at the American Enterprise Institute.

FURTHER READING: Fortier detailed the GOP’s “Senate Blues” and objected to “Unlawful Legislation” allowing D.C. a voting member in Congress. He also explained why “Primaries Are Best with Independents” and the message voters sent by recently overturning governorships in Virginia and New Jersey: “Voters to Governors—Beware.”

Image by Darren Wamboldt/Bergman Group.

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