Slowing Brown Down (If He Wins)

Today's senatorial special election in Massachusetts has become one of the most riveting political dramas in recent memory. Massachusetts Attorney General Martha Coakley held a strong advantage early in the race -- being a Democrat in one of the bluest of the blue states -- but a series of gaffes, controversial legal cases in her prosecutorial history, and her perceived arrogance have severely damaged her chances of occupying the Senate seat.

Meanwhile, Republican candidate Scott Brown, a little-known state senator, has become a symbol of democratic rebellion for a citizenry furious with the Democrat-led federal government. As the weekend closed, Coakley's campaign was still hemorrhaging support while Brown surged ahead to a slight lead. If Brown manages to defeat Coakley, he will become the 41st Republican senator and a symbolic but very real "no" vote against legislation that free-spending Democrats have been able to force through Congress up until this point, including the trillion dollar, government-rationed health care package dubbed "ObamaCare."

But while many have come to view a Brown victory as their last, best hope to derail socialized medicine, there is a sincere danger that Massachusetts Democrats, working in conjunction with a Pelosi House and Reid Senate, may attempt procedural tricks to thwart the will of voters and push through ObamaCare before Brown can be seated as a senator.

Mike Memoli and Kyle Trygstad made the case last week that Democrats could delay seating Brown for a month or even longer by waiting for a formal certificate of election signed by state officials, as noted in Rule II of the Standing Rules of the Senate. Until Massachusetts Governor Deval Patrick and Secretary of State William F. Galvin -- both Democrats -- sign the certificate of election, Brown cannot become the crucial 41st vote against an increasingly socialist Democratic policy agenda. Galvin is already laying the groundwork for such a delay, citing the need to wait for absentee ballots and the five-day window to file absentee returns after they have been collected. Even Coakley agrees with the delay, claiming that interim Massachusetts Senator Paul G. Kirk Jr. will be the senator on record "until a new senator is sworn in." The certification may not come before February 20.

Democratic bloggers at HillBuzz think that their former allies might just be duplicitous enough to attempt holding up Brown's seating to force through the health care rationing bill. They suggest storming the Capitol in protest if such stalling tactics are used. Such a protest would be an unusual tactic for Republicans, but there is a good reason to think that such a display of public anger might serve to rattle those Democratic senators and representatives who stand to risk losing their seats in 2010 if they so brazenly oppose the will of their constituents.

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.