It is now very unlikely that West Virginia Governor Jim Manchin will appoint a successor to Roberty Byrd this week. He is calling the state legislature together for a special session on Thursday before making any announcement:
Manchin had told the news website Politico.com last week he would announce today whether he intends to run for the U.S. Senate. However, over the weekend, he changed plans. Machin told a Politico reporter he now plans to wait until after the Legislature has clarified state elections laws. He also will wait until after he appoints someone to occupy Byrd's seat until a special election takes place.(...)
Manchin plans to call state lawmakers to the state Capitol Thursday to clarify that a special election is needed under state law. He has said it is very likely he will run for the seat.
That is a lot of legislation that is being held up by the continuing delay in appointing a replacement to Robert Byrd. Granted, the timing of Senator Byrd's death did create confusion given current law, but it is still surprising there wasn't a plan in place for a smoother transition, given Senator Byrd's long-flagging health.
Additionally, Manchin's chances in a November special election are improving by the day. A recent Rasmussen poll showed that if Manchin did run, the only Republican who wold even have a remote chance against him would be Represenative Shelley Moore Capito. However, Capito herself now sounds unlikely to run:
But when asked if she's afraid to lose, Capito's response doesn't sound like she really wants to run.
Said Capito: "That doesn't scare me. I'm not afraid to lose. I'm afraid to lose momentum that I think I provide for the state."
Now that there will be an election in November for Robert Byrd's former Senate seat in West Virginia, Democratic Governor Joe Manchin said today it is "highly likely" he will run for the seat:
West Virginia Gov. Joe Manchin said Friday on MSNBC's "The Daily Rundown" that he will probably be a candidate for the late Sen. Robert Byrd's seat in the event there's a special election.
"It's highly likely I will be," he said, describing the process for holding a special: "The direction we're going right now is there is going to be a primary. I'm understanding that the opinion from the attorney general is the governor will select the time for the primary and the general. I believe in the power of the voters who have the right to select who will represent them."
If Manchin does run, it is likely he will win. Even according to Rasmussen, he leads his closest potential challenger, and the strongest possible Republican recruit in West Virginia, Shelly Moore Capito, by 14%. Against everyone else, he leads by more than 2-1.
Numbers like these might even be enough to keep Capito from running, which would end the campaign before it began. Why give up a fairly safe seat in the House for a longshot run at the Senate, especially when Republicans are headed to big gains in 2010?
All in all, right now it sure looks like Democrats dodged a bullet in West Virginia. Of course, as we saw in Massachusetts, anything can happen. Still, expect Manchin to appoint himself over the weekend, cast the deciding votes on Wall Street reform and unemployment extension next week, and handily win election in November.
I haven't written yet about Senator Byrd's passing because there have been so many fine tributes written and spoken by people who knew him far better than I.
I am saddened to see him go. He was a Washington institution, and a delightful character to be introduced to for any young person who came to this town to do national politics in the last half century. Any fundraising event where he was a host, he came and played his fiddle and told some stories, making those events far more fun and interesting than most boring cocktail parties in this town. He was a beloved statesman, who kept getting better with age- some of his finest moments came in the last decade as he battled George Bush and his wrong headed wars.
What is stunningly appalling is to see his death used as a PR tool by special interest groups. There may have been other groups tacky enough to do this, but I haven't seen this bad in a response to a member of Congress dying in my memory:
Sen. Byrd leaves an extraordinary legacy of service and commitment to the Senate and the legislative process. His passing will affect the regulatory reform debate as the Democrats work to secure the 60 votes they need to achieve cloture. Sen. Byrd was a champion of Main Street, and we hope his colleagues will give careful consideration to the harmful impact the interchange amendment could have on the 92 million Americans who depend on credit unions for basic financial services, including debit cards.
In other words: "Sorry you're gone, Bobby. You were great and all, but we're glad your death gives us another chance to block cloture and lobby for a change in one provision of the financial reform bill."
This is as bad as it gets in Washington. The longest serving member of either body in the history of the US Congress, a former Majority Lader, Minority Leader, and Appropriations Chair, a legend in American history, has died. But all some tacky interest group can think is to do a press release about how they hope it gives them another chance to tinker with an amendment they don't like.
I used to like the credit union guys, had always been a big supporter of them as compared to the big banks on Wall Street. As an avid supporter of the Move Your Money campaign, I still am. But their trade association needs to clean up its act and have some people fired. This is pathetic stuff.
The death of Sen. Robert Byrd (D-WV) complicates Democratic efforts to push the final agreement on bank reform through the U.S. Senate as they now lack the crucial 60th vote to prevent a Republican filibuster. They had hoped to pass the bill this week.
Democratic leaders essentially have a two options:
1. Delay bringing the final conference report to the Senate floor until West Virginia Gov. Joe Machin (D) appoints an interim replacement for Byrd.
2. Try to convince one of two Democrats opposed to the bill -- Sen. Russ Feingold (D-WI) and Sen. Maria Cantwell (D-WA) -- to support it now. If necessary, they might need to make additional modifications to the conference report.
You can immediately see how option #1 works, though Gov. Manchin would have to work with great dispatch in order to get the conference report passed and signed by the July 4th recess.
Option 2 may be more difficult to work out, especially if they're serious about needing to make modifications to the conference report in order to get it done. It's not clear to me that that's the case, though. Feingold is always a tough nut to crack, of course. We all know that. But I'd heard it discussed over the past few days that Cantwell's biggest concerns might actually have been addressed satisfactorily in the conference report, so she may not be as difficult to get, especially in a pinch like this.
Why would it be hard to modify the conference report at this point? Because it's already done, and you'll recall that technically, the report isn't subject to amendment at this point. The House can, of course, opt to recommit the report to conference for the purposes of making changes designed to bring Feingold and/or Cantwell on board, if necessary. But I'm not sure you're likely to see the House make that kind of accommodation for the Senate, rather than putting it on the Senate to get its own membership in line or risk sinking the bill. I suppose it'd also be within bounds to table the conference report, reconvene the conference, and issue a new report, provided they could get agreement on it. But any options involving modifications to the report would have to be implemented before the first house agreed to the existing report, since that action dissolves the conference committee.
Now, the various options for facilitating changes to the report just discussed are premised on the traditional practice of having the house which agreed to the conference proposed by the other house be the first to act on the conference report. However, that's just practice. There are no hard and fast rules about that. So in theory, the Senate could seek to act first and move to recommit the report to conference, or table the report and seek to reconvene. Whether that would require the transfer of the papers from the House back to the Senate isn't exactly clear, though given the formality with which that practice has been observed, you'd think that yes, it would indeed require House cooperation. Which as I said is not necessarily a given, though it's hard to see them leveraging the death of Senator Byrd that way.
Still, it seems considerably more likely that Senate leaders would be looking to Sen. Cantwell for her agreement, rather than heading down any of the more convoluted paths to passage. Not only that, but Cantwell is hardly the only option available when casting about for additional votes.
The conference committee may be over, but the resulting Wall Street reform bill still must clear passage in both branches of Congress in order to reach President Obama's desk. With the passing of Senator Robert Byrd today, this is now far from a guarantee. Here is the state of play:
In the House Because of a deal made between Blanche Lincoln and the New Dems on derivatives, the House is expected to pass the bill. In all likelihood, the rule will be voted on today, and passage will occur tomorrow.
In the Senate After the bill passes the House, it will go to the Senate. Senator Reid had been expected to file for cloture on Tuesday evening or Wednesday morning, leading to a vote on either Thursday or Friday. However, the outcome of the vote, and thus the process leading to the vote, is now in doubt. Its time for some vote counting:
Narrow margin: Back in May, cloture was achieved on the Senate bill by the narrowest of margins, 60-40.
Robert Byrd: Five weeks ago, Robert Byrd was one of the yes votes for cloture. Since he has passed away, that is one less vote for reform until West Virginia Governor Joe Manchin appoints his replacement. Such an appointment would be extremely likely to vote for reform, but is not available until the appointment is made. It now seems unlikely to me that the appointment would take office this week, as Governor Manchin would likely wait until after Robert Byrd's funeral. He also may wait until after July 3rd, a move which might prevent an election for the seat from being held in 2010.
Maria Cantwell: Maria Cantwell (D-WA) voted against cloture five weeks ago. However, she was closely engaged in the process during the conference committee, and her specific concerns about the Volcker rule were met. As such, it seems very possible that she is now a "yes" vote, although she has not issued a formal statement to that effect. If she is a yes vote, that makes 60 votes for cloture.
Russ Feingold: Russ Feingold was the other Democrat who voted against cloture five weeks ago. He was never particularly engaged in the process, and for a long time made no specific demands in return for his vote. When he did finally make some demands, it was a long, kitchen-sink type laundry list that could not be met on such short notice. Few, if any, of those demands were met (at least somewhat because Feingold did not engage the process), and as such he is likely still a "no." So, we stay at 60.
Scott Brown: When Russ Feingold did not engage the process, it gave Massachusetts Republican Scott Brown enough leverage to force an egregious carve-out for hedge funds on the Volcker rule. Despite voting for the bill in May, and despite winning that huge concession during the conference committee, Brown is now talking about voting against the bill anyway because of a $19 billion levy on banks. It looks like Scott Brown has learned quickly about how to play Lucy to the Senate Democrats Charlie Brown.
Chuck Grassley: Even if Feingold and Brown are no votes, and even if no successor to Robert Byrd is made this week, the bill could still pass with one more Republican vote. Enter Iowa Republican Chuck Grassley, who voted against cloture in May but did vote for final passage.
Richard Lugar: The only other possibility of a "no to yes" vote is from Indiana Republican Richard Lugar. It's a longshot, but not impossible.
At this time, no one is in favor of opening up the bill again, and giving into Brown's demands to win his vote. That would create a procedural nightmare, likely delay passage the bill past the fourth of July, would give Wall Street lobbyists another shot to gut everything that has already been won.
However, the count is clearly extremely close right now, and very much in doubt. Nothing is guaranteed. As such, while this was supposed to be the week when we turned our attention to the Kagen confirmation hearings in the Senate, and the Afghanistan funding fight in the House, it looks like we still have a lot of drama on Wall Street reform in the Senate.
Senator Robert Byrd has passed away. He was the longest serving member of the Senate, and of Congress, in history.
Possible election in 2010 To morbidly deal with the political ramifications first, due to the date of his death, it certainly seems like West Virginia law states an election will be held in 2010:
If the vacancy occurs less than two years and six months before the end of the term, the Governor appoints someone to fill the unexpired term and there is no election. If the vacancy occurs two years and six months or more before the end of the term, the Governor appoints someone to serve until the unexpired term is filled at the conclusion of the next candidate filing period, Primary Election, General Election and certification. The winner of that General Election fills the balance of the unexpired term. The election for the full term will be held as scheduled regardless of the date of the vacancy.
These provisions are set out in West Virginia Code §3-10-3.
Had he died in six days, on July 4th, there would have been no election in 2010. Granted, there might be some ambiguities as to when Robert Byrd's term ends (since the Senate usually adjourns before Christmas), or when the vacancy is declared (it appears to be at the discretion of the Governor). As Nate Silver wrote last night:
Byrd's current term expires on January 3, 2013.(...)
In other words, we are within a week of the threshold established by West Virginia law. If a vacancy were to be declared on July 3rd or later, there would not be an election to replace Byrd until 2012. If it were to occur earlier, there could potentially be an election later this year, although there might be some ambiguities arising from precisely when and how the vacancy were declared.
Still, with Wall Street reform in need of a vote this week, and with the seat obviously vacant at the moment, it might be best if Governor Joe Manchin were to appoint a successor immediately.
Update--Special election UNLIKELY: A closer examination for the law, and of past court rulings on this law, shows that a special election is actually very unlikely. Reid Wilson:
But a special election is unlikely. State law says Manchin's appointment will be valid "until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term."
The WV primary took place May 11, making it unlikely that a special election will take place this year. And odd-year elections, used in many states to pick local officials, are a rarity in WV. In recent years, voters went to the polls only in '05, when they voted on a constitutional amendment. No elections were held in '07, '03 or '01.
Because the primary has already occured, the next opportunity to "timely file" will be Jan. '12 -- when Byrd's seat would have come open anyway. A primary would follow in May, with a special election to be held in concurrence with a general election later that year.
There is settled case law on the point. In '94, Kanawha Co. Circuit Court Judge John Hey resigned in April. A local GOP party chairman sued then-Gov. Gaston Caperton (D) to try and compel a special election for the following Nov. The state Supreme Court, in Robb v. Caperton, ruled against the local party chairman and said Caperton's appointee would serve until the '96 election, when the office would have come up for election anyway.
So, there might be a Republican court challenge trying to force an election in 2010, but the very likely outcome is there won't be.
On the prospects of holding the seat If there is an election, whoever Governor Machin appoints will be the Democratic nominee, as the West Virginia primary has already occurred. Democrats hold a 26-8 majority in the West Virginia Senate, and a 69-31 majority in the House, so there is a pretty deep bench, and a very thin Republican one. There is a good chance that whoever Manchin appoints will be able to hold the seat, although it is highly unlikely that the appointed Senator will be a progressive champion.
The best solution may simply be for Manchin to appoint himself immediately.
Remembering Robert Byrd Now, let's return to remembering Robert Byrd. There is a lot to be said about the man, but my fondest memories are from the October 2002 debate on Iraq. Here is a moving speech he gave back then, "I Weep for My Country."
This is an open thread to discuss Senator Robert Byrd.
U.S. Senator Robert C. Byrd
For Immediate Release: Wednesday, May 26, 2010
BYRD STATEMENT ON DON'T ASK, DON'T TELL REPEAL COMPROMISE AMENDMENT
Washington, DC -- U.S. Senator Robert C. Byrd, D-W.Va., a member of the Senate Armed Services Committee, released the following statement announcing that he will vote for a compromise amendment to the Department of Defense Authorization bill to repeal "Don't Ask, Don't Tell." Byrd worked successfully with interested parties to include some additional language that would give Congress an additional 60 days to thoroughly review the implementation policy once certified:
"I did not want to blindly assent to repealing this law without giving the Congress an opportunity to re-examine the concerns of our Armed Forces and the manner in which they are being addressed."
"Therefore, I worked with the Senate and House Leadership, Senators Lieberman and Levin, Congressman Murphy, the Administration and the Department of Defense to include a provision in the proposed compromise amendment that would delay the repeal of the 'Don't Ask, Don't Tell' policy for 60 days after receipt of the findings of the Pentagon Review and the determination of the proposed policy and regulation changes."
"This period of time will allow the Congress, along with the American people, to thoroughly review the proposed policy recommendations to ensure that these changes are consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention for our Armed Forces."
"With these changes, I will support the amendment expected to be offered by Senator Lieberman to the Department of Defense Authorization bill."
This would add 60 days onto the end of the process to allow Congress, the Administration and the public to "review" the findings and proposed policy changes. It's unclear at this point whether the delay comes after the review but before certification, or after certification but before the policy changes take effect. But there appears to be nothing (so far) in Byrd's language that would require additional action on the part of any branch of government, merely a delay. I will provide updates as I found out more if that is not the case.
With this, we will have 16 votes (including one Republican, Susan Collins) in favor of repeal to 12 opposed on the Senate Armed Services Committee going into tomorrow's vote.
Update: I took a look at the legislative language. The 60 day-rule takes effect AFTER certification. Meaning (a) Congress repeals the statute (b) The Pentagon review is delivered (c) The President, SecDef and Chairman of the Joint Chiefs sends a written certification to Congress (d) Implementation takes effect 60 days after. Additionally, no additional Congessional or Administration action would be required under the Byrd language.
If you missed it this morning, OpenLeft broke the news that Sen. Ben Nelson will vote in favor of the Lieberman-Levin amendment to repeal Don't Ask, Don't Tell. This puts us one vote shy of the necessary number to insert repeal language in the defense authorization bill. The bill is currently being marked up as you read this in the Senate Armed Services Committee, with a vote on DADT expected tomorrow.
It's been mildly reported around and about that Sen. Akaka is wavering. I have checked on that and been told that he is committed and is not a target, but will keep an eye on it. The two who remain unannounced are Sens. Byrd and Bayh.
Sen. Byrd's office as of this morning still has not announced a position one way or another nor will comment. It is now expected that he is unlikely to make the vote because of health concerns. If that proves to be the case, his vote is as good as a pro-repeal vote as it lowers the threshold needed for passage on the Lieberman-Levin amendment to 14, which we have in hand with Sen. Nelson's announcement this morning. The other route Byrd could go is to vote a "No" by proxy, which is unexpected but very possible. If you want to know why, see the bottom of my post last night. Byrd has a long history of opposing LGBT rights for historical reasons (by historical, I mean citing ancient Rome's experience), and may just be "set in his ways". Based on his history, and current behavior, it is far from clear that Byrd will (a) vote in favor (b) abstain rather than vote "no" by proxy, so do not count him as either.
Sen. Bayh is still unconfirmed publicly. I have been told by multiple sources he is "98% yes" and "he is likely to be with us" as it was put to me. But Bayh being Bayh, it's not a sure thing.
So we are not there yet.
For those reasons, this morning, OpenLeft Action asked our e-mail list subscribers in West Virginia and Indiana to call their offices and ask them to support repeal of Don't Ask, Don't Tell. Two things you can do:
1. If you are a constituent, please call now. Sen. Byrd's office is 202-224-3954 and Sen. Bayh's office is 202-224-5623.
2. Please pass along a call to action to call to friends/family/colleagues you know who are constituents. Take a gander through your list of Facebook friends. Stop browsing and take a minute to think who you might know who does know folks- friends of your parents, for example. Someone you might know at an Indiana-based publication. And so forth.
3. Whether you or a friend calls, please report back what you hear in the comments.
Sen. Nelson's announcement puts us at the 2-yard line. Help get repeal in the end zone.
Via lord_mike in quick hits, Senator Robert Byrd is open to using budget reconciliation to fix the Senate health reform bill. Byrd's staff writes into a local West Virginia newspaper:
I believed then, as now, that the Senate should debate the health reform bill under regular rules, which it did. The result of that debate was the passing of a comprehensive health care reform bill in the Senate by a 60-vote supermajority.
I continue to support the budget reconciliation process for deficit reduction. The entire Senate- or House- passed health care bill could not and would not pass muster under the current reconciliation rules, which were established under my watch.
Yet a bill structured to reduce deficits by, for example, finding savings in Medicare or lowering health care costs, may be consistent with the Budget Act, and appropriately considered under reconciliation.
This is the end of the reconciliation whip count. If Robert Byrd is OK with a reconciliation fix, then there is no longer any doubt the Senate has the votes for a reconciliation fix.
How meaningful is Byrd's support? In 2009, Byrd switched his vote on the federal budget from "yea" on April 2nd, to "nay" on April 29th, entirely because the April 29th version of the budget left open the possibility of using reconciliation for health care (the April 2nd budget did not). From Byrd's statement at the time:
"I like this budget. I support many of the policies that the President's budget embraces - including middle-class tax relief, and badly needed investments in our nation's infrastructure - but I cannot, and I will not, vote to authorize the use of the reconciliation process to expedite passage of health care reform legislation or any other legislative proposal that ought to be debated at length by this body."
"Using reconciliation to ram through complicated, far-reaching legislation is an abuse of the budget process. The writers of the Budget Act, and I am one, never intended for its reconciliation's expedited procedures to be used this way. These procedures were narrowly tailored for deficit reduction. They were never intended to be used to pass tax cuts, or to create new Federal regimes. Additionally, reconciliation measures must comply with Section 313 of the Budget Act, known as the Byrd Rule, which means that whatever health legislation is reported from the Finance Committee or legislation from any other Committee that is shoe-horned into reconciliation will sunset after five years. Additionally, numerous other non-budgetary provisions of any such legislation will have to be omitted under reconciliation. This is a very messy way to achieve a goal like health care reform, and one that will make crafting the legislation more difficult."
If Byrd is now open to a reconciliation fix after writing that last year, then the Senate will do a reconciliation fix.
With all due respect, the Daily Mail's hyperbole about "imposing government control," acts of "disrespect to the American people" and "corruption" of Senate procedures resembles more the barkings from the nether regions of Glennbeckistan than the "sober and second thought" of one of West Virginia's oldest and most respected daily newspapers.
As Natasha said to me this morning, "let's never take a trip to the nether regions of Glennbeckistan." [Homer Simpson revulsion noise]
The Hill is reporting the Senator Robert Byrd (D-WV), the longest serving member of the Senate, sent a "Dear Colleague" letter opposing filibuster reform. Here is an except from the letter:
"I am sympathetic to frustrations about the Senate's rules, but those frustrations are nothing new," Byrd wrote. "However, I believe that efforts to change or reinterpret the rules in order to facilitate expeditious action by a simple majority, while popular, are grossly misguided."
Upon first glance, that certainly sounds like a blow to filibuster reform. However, its not. This is because, later in the same letter, Senator Byrd actually advocates for filibuster reform:
"Senators are obliged to exercise their best judgment when invoking their right to extended debate," Byrd said. " They should also be obliged to actually filibuster - that is, go to the floor and talk, instead of finding less strenuous ways to accomplish the same end."
Byrd argues that Senators should be forced to actually talk on the floor. Such an obligation would be a departure from the current "painless filibuster," where Senators are not obligated to talk in order to sustain the filibuster. After extensive research into the matter, Senate Majority Leader Harry Reid concluded that current Senate rules do not obligate filibustering Senators to engage in a talk-a-thon:
Reid's office has studied the history of the filibuster and analyzed what options are available. The resulting memo was provided to the Huffington Post and it concludes that a filibustering Senator "can be forced to sit on the [Senate] floor to keep us from voting on that legislation for a finite period of time according to existing rules but he/she can't be forced to keep talking for an indefinite period of time."
So, by declaring that filibustering Senators must be forced to continuously talk on the Senate floor in order to maintain the filibuster, Senator Byrd actually is advocating for filibuster reform.
Granted, this is not the filibuster reform for which I am advocating. Personally, I want the Harkin plan, which would allow 40 Senators to delay legislation for a few days, but not ultimately stop it.
Still, Byrd is advocating for filibuster reform of a sort. And, as long as there are 51 Democratic Senators (including Vice-President Biden) in favor of some type of filibuster reform on January 3rd, 2011, then there will be filibuster reform. With Robert Byrd, we just hit #20. Here are all of them:
Sen. Robert Byrd (D-W.Va.) was released from the hospital Thursday following a 48-hour stay for observation. Byrd was taken to the hospital Tuesday after a fall at his Northern Virginia home.
For the first time all year, Democrats actually have 60 voting Senators. Given that they have shown no desire to challenge the Republican-fueled culture of the 60-vote Senate, this unfortunately means they only have a one-seat majority in the Senate. Sixty Democrats and forty Republicans are apparently worth almost exactly the same in terms of actual voting power.
With 60 votes, the push to pass health care and a public option will now focus on getting 60-votes to prevent a Republican filibuster, rather than reconciliation or the nuclear option. Even though, because of the nuclear option, only 51 votes can break any filibuster, that sort of aggressiveness just doesn't match up with the Democratic Senate caucus. Further, even though Senate experts say that a robust public option can be passed through reconciliation, Republicans will file procedural motions to require 60 votes for reconciliation to be approved. Even though the nuclear option can be used to dismiss those motions, as already noted Senate Democrats are not willing to use the nuclear option. Finally, at least one Democrat, the aforementioned Robert Byrd, switched to vote against the budget precisely because he doesn't want to use reconciliation for health care.
So, as Congress Matters reports, the focus for health care will be on getting all 60 Senate Democrats to vote for cloture, even if they vote against the final bill. While I still intend to launch a long-term campaign to eliminate the filibuster and restore majority rule in the Senate, in the short-term this appears to be the path we will go down.
Time for an up or down vote on health care. Let's see if finally getting 60 Democratic votes in the Senate was worth it.
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