It's Down to the Wire in Massachusetts     Permalink

The most recent polls in the Massachusetts Senate race put Republican Scott Brown ahead of Democrat Martha Coakley. The polls released over the weekend were from partisan pollsters such as Pajamas Media (R) and PPP (D) so they don't mean too much. Nevertheless. most neutral polls show Brown leading Coakley. Here are the nonpartisan polls from established pollsters for January.

Another small, but possibly important factor is the presence of the Libertarian Party candidate, Joe Kennedy (who is not related to those other Massachusetts Kennedys). Most polls exclude him, but the ones including him show him with about 2% of the vote, mostly coming from Brown. On the other hand, it is possible that what are euphemistically called "low-information voters" may see "Joe Kennedy" on the ballot, think it is Bobby Kennedy's eldest son, and vote for him out of regard for Bobby, thus taking away Coakley votes.

But with special elections, turnout is the key, and if the Democratic machine manages turn out union members and other Democratic constituencies, Coakley could still pull this one off. One is reminded of the New Hampshire primary, just a year ago, where virtually ever single poll in the days before it showed that Barack Obama would win big. And what happened? Hillary Clinton won it, probably because voters changed their minds over the weekend before the election. With President Obama campaigning in Massachusetts for Coakley Sunday, that could happen here, too. While many Republican top guns (like Rudy Giuliani) showed up from Brown, one politician who might have been expected to show up and didn't is former Massachusetts governor Mitt Romney. If Brown loses by a hair, he may some explaining to do come 2012.

While the preliminary results may be known tonight, the winner will definitely not be seated Wednesday. Senate rules require a winning candidate to show up with a certificate of election signed by the governor and Secretary of the Commonwealth, both Democrats, who in this case will surely carefully follow state and federal law to avoid challenges. So what do those laws say, you might ask? Federal law says that the final tally cannot be issued for at least 10 days after the election to allow overseas absentee ballots to arrive. The idea is that the least we can do for our fighting men and women overseas is to make sure their votes are counted. To issue a cetificate of election before their votes were counted would be an insult to them--not to mention basis for a court challenge. After the 10 days are up, up to five more days may be needed to resolve provisional ballots, which means there is no legal way for a certificate of election to be issued before Jan. 29. If even one of the 351 local election officials needs the full 5 days to resolve the provisional ballots, we are looking at Feb. 3. And if the election is close, the loser may demand a recount, which, as we saw in Minnesota last year, cannot be completed with a single click on some electoral mouse. More on the timeline at TPM.

While the waiting, counting (and possibly legal challenges) goes on, Sen. Paul Kirk (D-MA) would continue to vote in the Senate. Republicans might go to court to contest his right to vote, but the constitution is very clear that the Senate is the sole judge of its elections and membership and it is very unlikely a court would try to tell the Senate what to do. A decision to strip Kirk of his vote would require a majority vote in the Senate, an unlikely event to say the least.

If Brown wins, the Democrats have several options in terms of the health-insurance bill. Plan A is to get the merged bill through the Senate before Jan. 29. This is not easy because it has to be scored by the CBO and that could take up to 10 days. But it might be doable. The Republicans would scream at Plan A, but it would be perfectly legal. Lame duck Presidents and governors defeated for reelection often take actions on their final day in office.

Plan B is for the House to pass the Senate bill (technically, H.R. 3590) unmodified. This might be possible if the Democratic leadership agrees to pass the changes painfully agreed to last week using the budget reconciliation process, which cannot be filibustered. Part of the changes, such as modifying the excise tax on gold-plated health plans are actually appropriate for the reconciliation process and the Senate parliamentarian, Alan Frumin, would probably give his OK (knowing that a thumbs down might mean he would be fired--which is precisely what happened to his predecessor, Robert Dove, when he objected to the Republicans' using reconciliation to pass the Bush tax cuts). Other proposed changes, such as a single national insurance exchange instead of 50 state exchanges, are not likely to get Frumin's blessing, so the Democrats might have to replace him with their own man to get that through using reconciliation. Or they might simply not try,

It has sometimes been said that the Democratic party is a loose federation of interest groups, each fighting for its own goals and ignoring the big picture. The reason the negotiations between the House and Senate have been so slow is that unions have been fighting to kill the excise tax (or at least exempt union members from it), pro-choicers can't stomach the Stupak amendment, conservative Democrats insist on allowing the insurance industry to keep its antitrust exemption, etc. None of them see the forest for the trees. But if Brown wins, push will come to shove and Obama may be able to convince enough of them that the consequences of not passing a health-insurance bill will be catastrophic in November. It will be hard to explain to the voters why the Democrats were not able to achieve their top priority even with control of the White House, 60 votes in the Senate, and a large majority in the House.

The real reason, of course, is that 60 is the new 50. The Republicans filibuster everything nowadays so it takes 60 votes to get anything done and the Republicans can usually count on a few Democrats trying to slow things down to boot. If the bill had simply gone for an up-or-down vote, it would have passed months ago. In this context, it is useful to remember that there is nothing about filibusters in the constitution. It is simply a Senate rule. In the past, it was used only in emergencies, not every day. In particular, in the entire 19th century, there were fewer than two dozen filibusters, despite debates on the admission of new states as slave or free, secession, the Civil War, and reconstruction--not exactly topics on which there was unanimous consent.

It takes a 2/3 majority to change the rules, but there is perhaps one tactic the Democrats might try to get the rules changed. They could ram multiple bills very distasteful to the Republicans through the Senate using budget reconciliation. Once it became clear that the Democrats intended to govern for the next 3 years this way, a potential deal might be elimination of the reconciliation process along with reducing the number of votes needed for cloture to, say, 55. From the Republicans' point of view, this would mean the Democrats needed 55 votes instead of 51 to get anything done. But this would be a messy process.

Financial Reform Next on the Agenda     Permalink

No matter what happens in Massachusetts today, it is clear the voters are unhappy with the way health-insurance reform is going. Republicans don't want it at all while the Democratic base has made concession after concession (no single payer, no public option, no expansion of Medicare) and gotten nothing in return. But voters have extremely short memories. If the Democrats can change the subject within a month to something that works for them, that could erase a lot of memories of the health-insurance fiasco.

One topic that might well be next is reform of the financial system. A huge majority of voters is angry with the banks for getting bailed out, failing to extend credit to small businesses, continuing to foreclose on mortgages, and then paying out billions in bonuses. If the Democrats come up with a strong bill reining in the banks, the ensuing battle in Congress would likely put the Republicans in a position of defending the banks, which would not be a popular one. Of course, the banks would lobby like crazy to avoid any meaningful reform (such as a reinstatement of the Glass-Stegall Act, which put walls between retail banking, investment banking, and insurance). Whether the Democrats would be able to stand up to the banks depends on how serious a priority Obama made this. If his lesson from health care was that bipartisanship is impossible and the Democrats must do this alone, he might try. In fact, if Brown wins the special election and the new 41-seat Republican minority blocks banking reform, the Democrats might well be able to make the midterm elections about Republicans defending billion-dollar bonuses instead of about health insurance.

Eight States Poised to Gain Representatives     Permalink

2010 is a census year and as a consequence, some states will gain representatives (and electoral votes) in 2012 and other states will lose them. Expected winners are Texas, Arizona, Florida, Nevada, Oregon, Utah, Georgia and South Carolina. Texas will be the biggest gainer with four new seats. The population growth responsible for the additional seats is partly due to in-migration from states hard hit by the recession, partly due to the aftereffects of hurricane Katrina, and partly due to the relatively high birth rate of the state's large Latino population. The latter aspect could have long-term repercussions as the state is already a majority-minority state, meaning that less than half the population consists of nonLatino whites. The minorities are predominantly Democrats, and coupled with the states liberal whites in the large cities, especially Austin, they may slowly turn what has been a dark-red state to a more purplish state.

Of course, gaining or losing seats is only part of the equation. Who gets to draw the district lines is even more important. Bill Pascoe, a conservative Republican, has written a fascinating piece showing that in the past five redistricting rounds, the Democrats have won the battle nationally and it is time to stop gerrymandering altogether and follow the Iowa model. In a nutshell, the Iowa model has two key elements. First, the map is drawn up by legislative staffers without giving them census or precinct data that could be used to shape the boundaries in a partisan way. Second, the map may not split counties over district lines. Each of the 99 counties must be entirely in a single congressional district. This rule, in particular, leads to compact maps and competitive districts. It's not a crazy idea.

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