As President-elect Joe Biden begins to assemble his cabinet, there's some buzz in Massachusetts that he might turn to his former rival from the presidential primary, Sen. Elizabeth Warren, to fill a high-level position. Just the mere possibility of this happening has some on Beacon Hill looking at how a Senate vacancy would be filled.
One of the 777 budget amendments to be considered by the Massachusetts House of Representatives this week would slightly alter the process to prevent Republican Gov. Charlie Baker from appointing someone from his party to fill the vacancy — albeit, temporarily. This has some huge ramifications, considering the very narrow split between Democrats and Republicans in the U.S. Senate. If Baker were to appoint a Republican to fill the seat currently held by a Democrat, it would change the balance of power in the Senate.
As state law is currently written, as soon as a vacancy is official, the governor would appoint an interim senator to serve until a special election can be held. This has happened twice within the last dozen years — first in 2009, upon the death of Sen. Ted Kennedy, and again in 2013, when former President Barack Obama nominated former Sen. John Kerry to be secretary of state. Both times, the interim senator was appointed by former Gov. Deval Patrick, a Democrat.
The amendment being offered by Amherst Democrat Rep. Mindy Domb would require Baker to appoint an interim senator from "the same political party as the person vacating the office" until a special election is held, 145-160 days after the vacancy occurs. That means Baker could not appoint a fellow Republican who could then run for re-election in the special election. State law does not currently prevent an interim senator from running for the job permanently. In 2009 and 2013, Patrick appointed replacements who promised not to be candidates in the special election.
Domb's amendment is co-sponsored by several of the chamber's more liberal members. There has been no word from the more conservative Democratic House leadership as to whether the amendment will be allowed to move forward.
The heavily Democratic Legislature has constantly tinkered around the edges of the replacement law to give the party an edge. Prior to 2004, vacancies in the U.S. Senate would be filled by the governor, and the individual chosen would serve until the next statewide election.
That happened in 1961, when Benjamin A. Smith was named to replace John F. Kennedy, who had to give up his senate seat to become president. Smith served until the 1962 election (which was won by Ted Kennedy). In 2004, with then-Gov. Mitt Romney in the corner office, and John Kerry being the Democratic nominee for president, the Legislature voted to change the way vacancies are filled. It took the authority away from the governor and stated Senate vacancies would be filled by a special election, meaning the state would only have one senator for several months.
Fast forward to 2009 when Ted Kennedy died, leaving Democrats one vote short of the supermajority needed to pass the Affordable Care Act. Democrats desperately needed that extra vote, so the Legislature again changed the law, giving the governor the ability to immediately appoint a an interim senator until a special election could be held. Patrick tapped former Democratic National Committee chairman Paul Kirk to succeed the late Kennedy, and he was the 60th vote in favor of the ACA.
Democrats were gobsmacked a few months later, when Republican Scott Brown bested then Attorney General Martha Coakley to serve out the remainder of Kennedy's term. No changes were made to the law affecting Kerry's replacement. Patrick selected his chief of staff William "Mo" Cowan to occupy the seat, until Ed Markey beat Republican Gabriel Gomez in the special election.