Senate Democrats who think they can use a lame-duck session to force the country into a final, decisive lurch to the left may be in for a big surprise: newly elected senators ready to take their seats and derail major policy changes before the new Congress convenes.
There are now six unelected members of the U.S. Senate; they represent Colorado, Delaware, Florida, Illinois, New York, and West Virginia. The rules governing the seating of senators elected to replace appointed senators are left to the states in the 17th amendment. New York’s law specifies the date the new senator takes office as January 3, so Kirsten Gillibrand will still be a senator in a potential lame-duck session, regardless of the outcome of her election bid. The other five states, however, all have laws that indicate the election winners may be seated immediately following their election — in time for the lame-duck session.
Two states are clearly opportunities for the GOP to pick up Senate seats immediately: Delaware and West Virginia. Both are special elections for a portion of unexpired terms — Vice President Joe Biden’s last four years and the late Sen. Robert C. Byrd’s two — in states whose laws specify that newly elected senators are seated once they are certified. Regardless of what happens elsewhere, the winners of these two races should be seated as soon as the election returns are certified.
In Illinois, Blagojevich appointee Roland Burris has been fighting against a special election since he was installed nearly two years ago. But a June 16 decision of the Seventh Circuit Court of Appeals, written by Judge Diane Wood, found that the 17th Amendment requires Illinois to hold a special election — and it may finally happen. The appeals court left the details to District Judge John Grady, who was scheduled to rule yesterday but postponed his decision. The hearing is now scheduled for July 28. The state would do well to accept Wood’s ruling and hold the suggested special election for the lame-duck session — or alter its interpretation of state law to allow immediate seating of the newly elected senator.
Colorado and Florida, like Illinois, are holding elections for full six-year Senate terms to replace their appointed senators — and their laws are silent on the date the new senators should be seated. Given the ambiguity, state officials appear inclined to allow appointed senators to remain through the end of the year. The Congressional Research Service has, however, suggested a way to immediately respect the will of the voters, noting that “it is often customary for the interim senator to resign his or her seat immediately after the election, and for the governor to appoint the special-election winner to serve the balance of the term.” Appointed senators George LeMieux of Florida and Michael Bennet of Colorado (if he loses his election bid) should respect this custom.
The stakes are high because, as Senate Budget Committee chairman Kent Conrad recently pointed out, this will be “one of the most significant lame-duck sessions in the history of the United States.” Rep. Henry Waxman has made clear his intent to attach a full-fledged cap-and-trade program to any energy bill that passes the Senate this summer with an eye toward the lame duck. Sen. Tom Harkin has talked about pushing elements of the card-check bill in a lame duck. And big pork-barrelers of both parties are reportedly considering a last-ditch pork-fest as their corrupt Christmas gift to themselves — at taxpayer expense.
Recent votes on financial regulation and unemployment showed how difficult it is for Democrats to reach the 60-vote threshold. On these contested votes, cloture was reached with no room to spare, and with just two or three Republican votes. On health care, not a single Republican voted with Democrats. And pressure will be even more intense on moderate Republicans not to cross party lines during a lame-duck session. (Although retiring Republican incumbents may feel insulated from the pressure.)
Given the number of extremely tight votes in the Senate and the controversial agenda that could be considered in the lame duck, even one or two additional Republicans could make an enormous difference. Moreover, as a matter of principle, there is simply no good reason to allow unelected senators to stay on when their duly elected replacements are available. Candidates in the states where a case can be made for immediate seating should therefore make stopping this far-left agenda in the lame-duck session a selling point with voters and demand to be seated in time to do it.
– Phil Kerpen is vice president for policy at Americans for Prosperity.