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State House Leaders Meet Kennedy's Request With Silence02:12
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State House leaders are responding with silence to a request from Sen. Edward Kennedy regarding his Senate seat.

Kennedy, who has brain cancer, wrote a letter to Gov. Deval Patrick, Senate President Therese Murray and House Speaker Robert DeLeo, asking them to amend Massachusetts law so Patrick could appoint a temporary senator if Kennedy could not complete his term.

There is a precedent for what Kennedy is requesting. In 1960, when his brother John was elected president, Ted Kennedy was 28 — two years too young to run for the U.S. Senate. The governor at the time, Foster Furcolo, appointed a Kennedy friend, Benjamin Smith, to complete John Kennedy's term. Then, in 1962, Ted Kennedy ran and won the Senate seat.

State Rep. Bob Koczera, a Democrat from New Bedford, has already proposed legislation that he thinks will meet Kennedy's request.

"My thought was that — should there be a vacancy in the United States Senate seat from Massachusetts — having a special election certainly empowers the people to decide who that senator will be to serve the remaining portion of the term," Koczera said. "But in the interim, should there be a pending issue of importance, Massachusetts would be without a voice and a vote."

Koczera's bill would allow the governor to appoint a senator once the filing deadline for running in the special election has expired. That way, no one who is appointed to fill the office could run in the special election. Koczera's bill would still leave a Senate seat open for at least three months: the amount of time candidates have under the current law to turn in their nomination papers to the secretary of state. A hearing on Koczera's bill is scheduled in October.

Gov. Deval Patrick's office won't comment on whether the governor might call the Legislature back into session in order to act on Kennedy's request. Neither Senate President Therese Murray nor the speaker of the House, Robert DeLeo, would comment either. But some Democrats are making it clear that they would like to leave the law alone.

"The problem with an interim appointment is you could not constitutionally ban that person who is picked by a governor from running in the special or a subsequent general election," said Rep. Bill Strauss, who represents Matapoisett. "So you could not have that assuring (sic) that person would not have an insider's advantage."

In his letter, Kennedy asked that whoever is nominated to fill his seat temporarily be required to promise not to run in the special election.

Back in 2004, when it appeared Sen. John Kerry might become president, Democrats wanted to prevent then-Gov. Mitt Romney from appointing a Republican successor, so they changed the law to enable voters to fill a vacant Senate seat. But, by setting up an election, the Legislature also created a period of at least four months when the seat would be empty.

"The law is very clear," explained Secretary of State William Galvin. "It requires a special election within 145 to 160 days of a vacancy in Congress, which now includes vacancies in the U.S. Senate."

At the time, Republicans proposed allowing the governor to appoint a temporary senator until the special election, but Democrats rejected that. Now, Republicans oppose making any more changes to the law.

"We should be a nation of laws, in particular when it comes to elections and succession," said Senate Minority Leader Richard Tisei. "Laws like this, they shouldn't be changed based on whatever the latest circumstances or the personalities that are involved. The rules should be the rules and everybody should play by the rules."

If the rules are not changed again, U.S. Senate Democrats could find themselves without a crucial vote from Massachusetts in the debate over President Obama's proposal to transform health insurance, Kennedy's career-long focus.

This program aired on August 20, 2009.

Fred Thys Twitter Reporter
Fred Thys reports on politics and higher education for WBUR.

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