Slowing Brown Down (If He Wins)

Of course, this assumes that Senate Democrats will need a supermajority to push through ObamaCare. House Democrat Chris Van Hollen claims that Senate Democrats only need 51 votes to pass heath care rationing using a procedure known as reconciliation. Such an option is possible but would not likely result in the extensive bill House Democrats had originally envisioned. And a weakened bill could conceivably cost votes in the House if liberal representatives don't feel that it is radical enough to suit their tastes.

A second option for Democrats is to stop work on the bill they are negotiating for between houses, and to have the House ratify the Senate bill as it is presently written. The bill could then be sent to President Obama to be signed into law. While this approach is possible, it would mean that none of the differences preferred by more radical House Democrats would make their way into law, and enough liberal representatives could stand against the Senate version to stop this approach as well.

Adding to this state of confusion is a claim by GOP lawyers that interim Senator Kirk will lose his seat the day after the election, regardless of who wins or when they are certified.

Kirk, who pledged to vote for ObamaCare, stood to be the 60th vote for Democrats until Massachusetts certifies the special election, but state law seems to indicate that Kirk only remains the interim senator "until election and qualification of the person duly elected to fill the vacancy." As both Coakley and Brown unquestioningly meet the age, citizenship, and residency qualifications to run for the seat, the election would seem to be the end of Kirk's short senatorial career -- meaning that Democrats may lose the vote to break a Senate filibuster in just 48 hours, and not on February 20 as they previously thought.

And if all this isn't perplexing enough, the possibility of a very tight race brings up the legal hurdles that would surround a recount, which would occur if the margin of victory is less than half of one percent of the vote. If Brown wins the election by a narrow margin, there may be some arguments by Democratic lawyers that Brown isn't "duly elected" until the victory is certified.

The final polls before the election seem to rule out the possibility of a Coakley victory or even a runoff. Coakley trails Brown by five in the latest from Public Policy Polling, and a Merriman River Group/InsideMedford.com poll has Brown ahead 50.8 percent to 41.2 percent. A Pajamas Media/CrossTarget poll likewise has Brown ahead by 9.6 percent.

While Massachusetts Democrats could try to delay seating Brown if he wins the special election, it would seem that such a delaying tactic would only work if interim Senator Paul Kirk was still able to vote in the Senate until the election was formally certified. If Republican lawyers are correct, however, then Kirk's standing as a senator is immediately revoked after the election, even while the outcome is unknown. The process of the election itself would invalidate Kirk's 60th vote for a filibuster-proof majority in the Senate, leaving Massachusetts with just one voting senator (John Kerry) until the next senator from Massachusetts is seated.

The conclusion? Scott Brown could become an important 41st Republican vote in the Senate because of the special election, but his election is not a guaranteed antidote to liberal dreams of expanding government.

That guaranteed remedy can only come from the 2010 midterms ... and it very well may.