A wave of their own incompetence is about to come crashing down on the Republican Party.
After barely passing a tax bill costing $1.4 trillion — cutting taxes for corporations and most rich people, hiking taxes for the poor, and destabilizing health insurance markets — Senate Republicans discovered a $250 billion drafting error in the bill. One Republican, Sen. Bob Corker (R-TN) already opposed the bill. Another, Sen. Susan Collins (R-ME) is now wavering on the bill — possibly because Speaker Paul Ryan (R-WI) may not honor commitments Collins was promised in order to secure her vote.
And then there’s Senator-elect Doug Jones, a Democrat from Alabama and potentially the 51st vote to kill the bill.
But there’s a catch. Any vote cast by soon-to-be-former Sen. Luther Strange (R-AL), the temporary appointee Jones will replace, will lack democratic legitimacy. But the Senate is run by Majority Leader Mitch McConnell (R-KY), and McConnell made his career out of disregard for democratic norms. The man who held a Supreme Court seat open for more than a year so Donald Trump could fill it already has a plan to keep Tuesday’s election from spoiling his tax bill.
From McConnell spokesman @StewSays: "Once the state certifies and sends us the paperwork, the new Senator is sworn in. But since the state said they don’t expect to certify until the end of the month, and we expect to finish before the end of the month…" https://t.co/EpkAd41bS0
— Sean Sullivan (@WaPoSean) December 12, 2017
Can McConnell do that? That is, can he rely on the vote of a senator who lacks any democratic legitimacy to fundamentally overhaul the U.S. tax code?
The short answer is “maybe.” The longer answer is, “it depends on how quickly certain events play out.”
Mitch McConnell vs. Mitch McConnell
Once upon a time, McConnell acted like he would have been shocked by the very tactics he’s planning to use now to pass the tax bill. It was 2010, and soon-to-be-Sen. Scott Brown (R-MA) had just won an upset victory, depriving Democrats of the supermajority they needed to break a GOP filibuster of the Affordable Care Act.
There is ordinarily an interregnum between the day of a special election and the day when the winner of that election is sworn in as a senator. State election officials need time to canvas the election results and issue a certificate of election to the winner. Ordinarily, the Senate recognizes a new senator as the winner of an election — and allows that person to be sworn in — once they present that certificate to the body.
This meant that Sen. Paul Kirk (D-MA), a Democrat who was temporarily appointed to fill the seat Brown had just won, would remain in office just a little longer — long enough, potentially, to break a filibuster on the Affordable Care Act.
Kirk never got the chance to cast that vote, however. Not long after Brown’s victory, Democratic Sen. Jim Webb (D-VA) recognized that allowing a lame duck to cast such a crucial vote under these circumstances would undermine the “integrity of our government process.” Webb added that “it would only be fair and prudent that we suspend further votes on health care legislation until Senator-elect Brown is seated.”
As Brian Beutler notes, Webb’s statement drew swift praise from McConnell. “Let’s honor the wishes of the people of Massachusetts and move forward,” McConnell said in a speech outlining how Brown’s victory would help the GOP’s efforts to kill health reform.
Nearly eight years later, however, McConnell has already signaled that he will not honor the wishes of the people of Alabama.
When can we call Doug Jones “senator?”
As mentioned above, the ordinary process for special elections is that a state certifies its election results, issues a certificate of election to the victor, and then the victor presents that certificate to the Senate in order to be sworn in. This process can take days or even a few weeks.
It is reasonable for Alabama to spend the ordinary amount of time it would spend certifying any other special election to certify the results in Tuesday’s election. Such internal processes allow the state to ensure that there were no irregularities in the election and that all ballots were counted. But this process also presents two opportunities for gamesmanship.
The first opportunity arises from the fact that Alabama is controlled by Republicans, including a Republican elections chief who isn’t exactly a fan of the right to vote. There is a risk that partisan state officials will intentionally drag their feet in order to keep Jones out of the Senate until the tax bill receives a vote.
Alabama law places some limits on such gamesmanship — “all returns of elections required by law to be sent to the Secretary of State must, within 22 days after an election, be opened, counted, and certified” — but 22 days is a lot of time to jam through a tax bill.
The second opportunity arises when Jones actually arrives at the Senate with his certificate in hand.
As the Congressional Research Service explains, “the orderly and constitutional method of procedure in regard to administering the oath to newly elected Senators is that when any gentleman brings with him or presents credentials consisting of the certificate of his due election from the executive of his state, he is entitled to be sworn in, and all questions relating to his qualifications should be postponed and acted upon by the Senate afterwards.” So it would be a nuclear tactic to simply refuse to seat Jones. But so was refusing to hold a confirmation process for Supreme Court nominee Merrick Garland.
As long as Mitch McConnell oversees Congress’ upper house, there is always a risk that he will use extraordinary means to maintain Republican power.
If McConnell resorts to such tactics, it could trigger a constitutional crisis. Though Article I of the Constitution provides that “each House shall be the judge of the elections, returns and qualifications of its own members,” the Seventeenth Amendment provides that temporary appointments to the Senate serve “until the people fill the vacancies by election as the legislature may direct.”
Thus, while the Senate may have the authority to judge whether Jones or his Republican opponent Roy Moore is the duly elected senator from Alabama (there is some Supreme Court precedent suggesting that this power is limited), the Seventeenth Amendment’s text suggests that Sen. Strange’s tenure in office ends the moment Jones’ victory is certified.
But let’s be realistic. Even under ordinary procedures, where Jones waits a reasonable amount of time to receive his certificate and then presents it to the Senate and is immediately sworn in, McConnell still has plenty of time left before Luther Strange unambiguously can no longer cast votes on legislation. Indeed, Jones’ election could potentially help speed the tax bill towards a final vote, since Republicans now face a deadline.
What kept Democrats from relying on a democratically illegitimate senator to enact the Affordable Care Act in 2010 wasn’t any law or constitutional restraint, it was the fact that they believe in liberal democracy — and at least one Democratic senator was willing to stick his neck out to defend the “integrity of our government process.”
Mitch McConnell won’t do that, but he’s not the only person who has a vote here. Any three Republican senators could follow Webb’s lead and pledge to vote “no” on any tax bill that arrives on the Senate floor before Doug Jones is sworn in.