Lawyering up Kirk seat a legal target (Massachusetts Brown)

There is speculation that Sen. Paul Kirk (above) will lose
his vote in the Senate after the special election AP

By POLITICO STAFF | 01/18/10 9:06 AM

POLITICO Pulse reports on the possible legal fallout from Tuesday's special election in Massachusetts:

A victory by Republican Scott Brown tomorrow in Massachusetts could quickly turn into a legal battle over the man he would replace -- with the future of health reform in the Senate hanging in the balance. The Weekly Standard's Fred Barnes is arguing that Sen. Paul Kirk will lose his vote in the Senate after the special election, no matter who wins, signaling a possible GOP line of attack against health reform if it passes with Kirk's vote. GOP elected officials haven't embraced that argument, and two academic election law experts contacted by POLITICO rebutted the notion that Kirk will no longer be a senator after the election.

But it's a sign of the fierce legal and political battles likely to ensue if Brown upsets Democrat Martha Coakley in the race to fill the late Sen. Ted Kennedy's Senate seat. And Kirk would be in the middle of it all. Brown would take over for Kirk, a supporter of reform, and become the 41st vote against the health bill - ending the Democrats' filibuster-proof majority and throwing reform's future into serious doubt. Republicans are worried that if Brown wins, Democrats will try to jam through a Senate health reform vote while Kirk still occupies the seat, in the time between Brown's election and when he is certified the winner. Kirk has pledged to vote for reform for as long as he remains a senator, even if Brown wins.

Blue to Red: Massachusetts Senate Race

By Richard Baehr
AmericanThinker.com

American Thinker will be covering the 2010 midterm elections, with featured articles on Republican challengers for Senate, House, and Governor's races. We will also focus on hotly contested races where Republican-held seats are at risk. The GOP now holds 40 Senate seats, 178 House seats, and 24 Governor's chairs. After the 2010 census, some states will gain House seats and others will lose them. Having more GOP governors will ensure a role in the redistricting process at the state level. So will winning control of more state legislative chambers. To take back control from the Democrats, a pickup of 40 seats in the House and 11 in the Senate is required. In 2012, of the 33 senators up for reelection, only nine are Republicans. If the GOP picks up a significant number of Senate seats in 2010, they could gain control in a target-rich environment in 2012 (Jim Webb, Ben Nelson, John Tester, and Claire McCaskill).

Given what the Democrats have done in 2009 with control of the presidency and strong majorities in both Houses of Congress, it is incumbent that conservatives vote in 2010 and change the political dynamic.

An unusual opportunity now presents itself in the special election for U.S. Senator in Massachusetts, to take place on Tuesday, January 19. Republican Scott Brown is in striking range of Martha Coakley for the Senate seat once held by the late Ted Kennedy and now held by appointed interim Senator Paul Kirk. Massachusetts is not a Republican-friendly state. It voted for Obama over McCain by 26%. There are zero Republicans in the ten-member U.S House delegation (there are zero U.S. House Republicans in all of New England at the moment!). In the state legislature, Democrats control 90% of the seats. They used that majority to change the state law and allow the Democratic Governor Deval Patrick to appoint an immediate replacement for Kennedy in the period before a special election was held, allowing Democrats to maintain the 60^th Senate seat and break the GOP filibuster on health care reform. That maneuver did not go down all that well, given that the legislature passed a bill in 2004 requiring a special election and taking away the ability of the governor to fill a vacant Senate seat. That step was taken to ensure that then GOP Governor Mitt Romney could not appoint a Republican to fill out John Kerry's term had he been elected president in 2004. Some hypocritical acts by politicians stink worse than others.

Republicans have won governor's races in Massachusetts (to keep the legislature honest), and Ronald Reagan carried the state in 1980 and 1984. But there has not been a GOP senator since Ed Brooke in the early 1970s.

Three polls taken last week give different reads on the race. Scott Rasmussen has Coakley up by 9%. PPP, a Democratic-leaning polling group, shows Brown up 1%. A Boston Globe poll, the earliest one of the three in the field, showed Coakley up 15%. Each survey shows that Brown's supporters are far more motivated than Coakley's. There are rumors of other polls that show a tied race, or Coakley up by a bit more than 10%. Special elections are difficult to forecast. Turnout is low, even for an off-year election. Only the most motivated voters tend to show up, especially in winter. National Democrats are now fearful of a huge upset and a 41^st Republican senator -- enough to stop the health care bill with a filibuster when it comes back for one final vote in the Senate. Suddenly there was talk of the governor and his henchmen delaying Brown's certification if he wins and having Kirk vote for the bill if it comes up after the date of the election, but before Brown is declared the winner.

This latest proposed jujitsu by the Democrats has not played out well in Massachusetts. When Red Auerbach turned the heat up to 95 degrees in the Lakers' locker room at the Boston Garden during the NBA finals in 1984, Celtic fans were not concerned by this application of "home court edge." But the idea that an elected senator would be held in limbo is heating up the talk radio airwaves in the Bay State.

Getting the Senate and the House to agree to the final version of a health care bill that can pass in both chambers is proving more difficult than anticipated. The House liberals are unhappy with features in the Senate version of the bill, especially the tax on "Cadillac plans." The abortion language in the Senate version was enough for Nebraska Senator Ben Nelson to swallow (washed down with extra Medicaid funding for eternity), but it may not be acceptable to Bart Stupak and a handful of pro-life Democrats in the House. The House bill passed by a narrow margin of 220-215. The Senate bill got exactly the 60 votes needed for cloture. Given the spate of recent Democratic retirements in the Senate and the House, and the shift of an Alabama Congressman to the GOP, a loss in the Massachusetts Senate race would cause grave indigestion for Democrats from the White House to Capitol Hill. It would likely accelerate the rush to the exit by Democrats in tough races in 2010, creating more open seats -- the easiest for the Republicans to pick up.

As the news of the tightening race has gone national, liberal interest groups and the unions have flooded the state with robo-calls, paid ads, and campaign workers. One robo-call is a push poll, asking voters if it would affect their choice if they knew that hate groups backed Scott Brown. The charge is nonsense, but valuable time is lost denying the charge, and the parties paying for spreading the garbage have tried to have their fingerprints wiped. President Obama's favorite union, the SEIU, may be behind the effort.

There is one week to go before the special election. If you went to contribute to the Scott Brown campaign , you can do it here. You can also help with phone calls, the get-out-the-vote effort, and other volunteer activities.

Before Sunday, the New England Patriots had won 22 straight home games and had not lost a home playoff game since 1978. Then they got blown out by the Ravens 33-14. Long winning streaks can come to an end. Doug Hoffman came out of nowhere to almost win the 23rd district House race in New York. A chance to win a Senate seat in Massachusetts does not come around all that often. Help if you can.

Richard Baehr is chief political correspondent of American Thinker.