The Limits Of Comity

Even a "split-the-bill" strategy would require 60 votes for cloture on the more non-controversial items of health care reform. And as I noted, Republicans like Jon Kyl are objectively pro-discrimination against people with pre-existing conditions. Furthermore, expecting GOPers to go along with certain health insurance reform items after getting cut out of other elements of the bill is a fantasy. So those 60 votes will have to come from Democrats.

And all Democrats ought to stick with the wishes of their party rather than join a Republican filibuster. But there's one very sad detail - Ted Kennedy is fighting cancer. He's very sick. He didn't attend his sister's funeral. And while I believe he'd get wheeled in on a gurney if it meant the passage of his life's work, this letter shows that he's preparing for every eventuality. And here he runs up against Massachusetts state law.

A cancer-stricken Sen. Edward M. Kennedy has asked Massachusetts leaders to change state law to allow a speedy replacement of him in the Senate, fearing a months-long open seat will deny Democrats a crucial vote on President Barack Obama's health care overhaul.

In a note to Gov. Deval Patrick and other state leaders, Kennedy wrote "it is vital for this commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election." [...]

Kennedy's letter acknowledges the state changed its succession law in 2004 to require a special election within five months to fill any vacancy. At the time, legislative Democrats — with a wide majority in both chambers — were concerned because then-Republican Gov. Mitt Romney had the power to directly fill any vacancy created as Democratic Sen. John Kerry ran for president.

I'm a bit all over the map on this. I actually think the Senate appointment process for vacancies is anti-democratic and wrong. But a five-month open seat does not serve the interests of Massachusetts residents either. Also, Kennedy, mindful of his cancer fight, could have resigned months ago. It's very sad that such choices have to be made given the process we have.

The real problem, of course, is that we have a system where everybody knows Ted Kennedy's position on health care - his committee staff helped write the Senate HELP bill - and he could easily indicate his position on elements of the bill from a hospital bed or through a staffer, but his specific presence on the Senate floor is required. The Senate is supposed to be about "relationships" and "comity" but the members cannot allow a colleague of 40-plus years the ability to make his preferences known given his medical condition. Ezra Klein adds:

That is to say, where Kennedy’s great friend Orrin Hatch would have voted to uphold a filibuster, now he will vote to shut it down, as that’s how the vote would have gone if Ted Kennedy were still alive, and it is neither decent nor small-d democratic to doom health care because the bill’s greatest advocate contracted incurable brain cancer.

Such a trade would not only be a grand show of respect for Kennedy’s life work, but it would uphold the outcome that Americans chose when they voted 60 Democrats into office in 2008. Conversely, if not one Republican can be found who feels enough loyalty to Kennedy to make sure that his death doesn’t kill the work of his life, then what are all those personal relationships and all that gentility really worth?

But Hatch was specifically asked this last night, and he ignored the question, saying that "The Democrats should be able to pass it. They have overwhelming majorities in the House, and they have 60 solid votes in the Senate." But they don't. Ted Kennedy is sick. He's barred from voting. And Orrin Hatch, supposedly this great friend of his, plays dumb about it. I guess blood - or the bloody shirt of partisanship - is thicker than water.

It shouldn't come to this at all - the filibuster was not designed to automatically require 60 votes on every piece of legislation, that's a recent development. But the next time you hear some member of the Senate club go on and on about "the great civility of this chamber" and "working with my esteemed colleagues on the other side," keep in mind that it's all a bunch of horseshit.