Why Hasn’t Scott Brown Been Seated?

And why is former senator Paul Kirk still voting?

A piece in the Washington Times on Saturday suggested that Brown’s camp believes he’ll be seated in the U.S. Senate by Feb. 11. That date is far too late for Brown to have any chance of weighing in on a $1.9 trillion increase in the federal debt limit, which passed the Senate Thursday on a 60-40 party-line vote with Kirk, Brown’s predecessor who by law ceased to be a U.S. Senator upon Brown’s election three weeks ago, casting the 60th vote.

It’s not known whether the GOP would have filibustered the debt limit vote, or whether the Republicans would have sustained a filibuster for very long. On the other hand, the $1.9 trillion figure was scientifically designed so as to carry the Democrat-run federal government past what looks like a nightmarish mid-term election this fall and into “safe” territory in the summer of 2011 when none of the survivors of this November will be in immediate danger of punishment by the voters.

Considering the state of the nation’s fiscal house and the obnoxious character of the recently-released Obama budget, one would think that debt limits would absolutely be an electoral issue and it’s past time that politicians of both parties have their feet held to the fire when voting to drive the taxpayers deeper into debt.

Brown’s presence might have necessitated a less-cowardly debt limit bill. While that’s water under the bridge, there are without question other votes coming in the next few days – and the Democrats, for no legal reason, continue to claim 60 votes for their side. They didn’t need Kirk’s vote for Ben Bernanke’s confirmation as Fed chair last week, for example, but they got it anyway.

Blogger SusanAnne Hiller pointed out last week that Kirk’s continuing to serve as a functional Senator is in violation of Senate rules. Hiller cites research by blogger Michael Stern making a strong case that, in fact, precedent should have driven Kirk back to Massachusetts immediately following Brown’s election.

The Senate subcommittee and committee concluded, based on its hearing and review, that “the term of service of a Senator appointed to fill a vacancy in an unexpired term ends on the day when his successor is elected by the people.” 1939 Congressional Record, p. 998. There was evidently no controversy among either the subcommittee or full committee regarding this legal conclusion, and the committee then presented a resolution to the Senate for adoption, expressing the view that Berry’s term of service expired on November 8, 1938, the date of the special election. As Senator Connally, a member of the subcommittee, explained to the Senate, the fact that the Tennessee statute purported to extend Berry’s term until the qualification of his successor was of no force because the statute was “plainly in conflict with the provisions of the seventeenth amendment.” Accordingly, the Senate adopted the proposed resolution without dissent. 1939 Congressional Record, p. 1058.

Based on this authority, it would appear that a valid point of order could be raised as to Senator Kirk’s participation in Senate proceedings after January 19, 2010.

Kirk continuing to vote isn’t just an affront to the will of Massachusetts voters; it flies in the face of the 17th Amendment to the Constitution, which reads:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

Sure, politicians of both parties are in the business of wholesale disregard for what the Constitution says, but isn’t it time for that to stop? Isn’t it time for a bloody, ugly fight based on principle?

It is.

It’s about time for Mitch McConnell and the Senate Republicans to begin raising points of order and stopping everything on the calendar until either Brown is seated or Kirk goes home.



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