Change In Senate Vacancy Law Led To Mass. Special Elections

It was the summer of 2004 and Massachusetts Democrats were giddy over the possibility of a favorite son, John Kerry, winning the presidency, yet also determined to block Republican Gov. Mitt Romney from picking a member of his own party to fill Kerry's U.S. Senate seat.

What followed may truly have been a law of unintended consequences. In passing a bill to require a special election and deny Romney a partisan appointment, Democrats unwittingly created the mechanism by which a Republican, Scott Brown, would later win one special election and, depending on what happens in coming weeks, perhaps be a formidable candidate in another.

In their haste to block Romney in 2004, Democrats may have committed the classic political blunder of reacting to a current situation without considering broader consequences, said Marc Landy, a political science professor at Boston College.

"Politicians really have a hard time looking not only at the long run, but the medium run," said Landy. "They overinterpreted, and they paid the price."

The 2004 law mandated a special election within 145-160 days of a vacancy in one of the state's two U.S. Senate seats. Such a vacancy is likely if President Barack Obama's nomination of Kerry to be secretary of state goes as expected and he's confirmed by his Senate colleagues.

Prior to 2004, the state's governor was empowered to fill a Senate vacancy until the next state election. It happened in 1960 after John F. Kennedy won the White House. The Democratic governor appointed a Kennedy family friend to keep JFK's Senate seat warm until his younger brother, Edward Kennedy, turned 30 and was constitutionally old enough to run in 1962.

The heavily Democratic state Legislature changed the law — over Romney's veto — after Kerry secured the Democratic presidential nomination. Romney sought a last-minute compromise, one that would allow him to pick a temporary senator until the special election in four or five months, but Democrats would have no part of it.

It all went for naught, of course. Kerry lost the election to President George W. Bush and remained in the Senate. The new law wasn't exercised at the time but is now poised for its second test in less than four years.

Following Kennedy's death from brain cancer in 2009, the Legislature tweaked the law to give Democratic Gov. Deval Patrick what they had denied Romney, the ability to appoint a temporary senator to fill the seat for a few months until the special election. Patrick appointed Paul Kirk, a veteran Democratic operative, honoring a wish expressed by the dying Kennedy by naming someone who did not intend to seek the job permanently.

Brown, a little-known Republican state legislator who had voted against changing the law in 2004, then sprung an upset over Democratic Attorney General Martha Coakley in the January 2010 special election to serve out Kennedy's term.

"Changing the rules of the game because you think you know what is good for your side ... is a very tricky business," Landy said.

Though Brown would lose to Democrat Elizabeth Warren in the 2012 election, he remains popular in Massachusetts and would be a strong contender if he chooses to run in a special election to fill Kerry's seat. Name recognition, a statewide political organization and proven fundraising ability, all Brown strengths, can be major attributes in a special election that has a shorter campaign period and draws fewer voters to the polls than a regularly scheduled election.

This time around, as the likelihood of a Kerry nomination grew in Washington, speculation arose that the Legislature might try to avoid a special election by returning to the law in existence before 2004. But no serious effort to do so was mounted at the Statehouse.

It would have been embarrassing and hypocritical for Democrats to change the law after only a few years, said Todd Domke, a Republican political strategist.

"They usually like to have more time between the flip and the flop," said Domke.

Thirty-six states have laws allowing governors to fill Senate vacancies until the next state election, according to the National Conference of State Legislatures.

In South Carolina, Gov. Nikki Haley recently appointed Rep. Tim Scott to fill the seat of Jim DeMint, who is leaving to head the Heritage Foundation.

Hawaii Gov. Neil Abercrombie similarly appointed his lieutenant governor, Brian Schatz, to succeed the Democratic Sen. Daniel Inouye, who died last month. Hawaii and two other states require the appointee to be of the same party as the previous senator.

Gubernatorial appointees aren't guaranteed success when they have to face voters down the road, but as incumbents they can have a leg up on opponents if they seek to hold the seat in the future.

New York Sen. Kirsten Gillibrand, who was appointed in 2009 by then-Gov. David Paterson to fill Secretary of State Hillary Clinton's former Senate seat, won the nod of voters in the 2010 state election and in November was re-elected to a full six-year term.

In addition to Massachusetts, the 14 states that require special elections include Rhode Island, Connecticut and Vermont.