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Democrats' lame duck session might be ... lame

By Aaron Blake

For Democrats looking for a silver lining in the dark clouds forming in advance of the 2010 midterm election, talk of a "lame duck" session provides some comfort.

The idea is that no matter what happens on Nov. 2, Congress can be called back to Washington before the start of the 112th Congress to pass a slew of legislation that Democrats couldn't -- or wouldn't -- get done before the election.

While the idea might provide a bit of solace to dispirited Democrats, a series of special elections on the ballot this fall make the prospect of a productive lame-duck session less than likely.

Five states -- New York, Delaware, Illinois, West Virginia and Colorado -- currently under Democratic control are holding special elections on Nov. 2 and, in least two of those states (Illinois and West Virginia) the new senators are set to be sworn in immediately.

And, historically it's pretty standard practice for an appointee to vacate their seat immediately in order to allow the new senator to get a leg up on seniority. So even if state law doesn't require the senator to be seated until the New Year (like in New York), it's conceivable that political pressure could prevail in getting the new senator seated right away.

In fact, Delaware nominee Christine O'Donnell and the GOP candidate in Illinois, Rep. Mark Kirk, have actually used this argument as a campaign issue -- i.e. 'Vote for me, and I'll stop the Democrats from ramming their agenda through before the rest of the cavalry arrives.'

But the GOP's ability to chip away at the Democrats' lame duck majority is still up in the air, mostly because it's not clear whether some states will seat their senator immediately. In a few of the states, tensions over this issue are already rising.

Here's the latest in the four states worth watching:

Delaware

Election law here is pretty clear that appointed Sen. Ted Kaufman (D) will only serve until a new senator is elected to fill out Vice President Joe Biden's Senate term.

Before O'Donnell's win, though, Democrats made the point that seating Rep. Mike Castle (R) early would deprive the state of its representation in its House seat, and therefore they might wait until the new Congress. That argument doesn't apply to O'Donnell, since she's not in the House, so it would appear that she could be seated immediately.

At the same time, O'Donnell looks to be a pretty significant underdog in the general election, so Democrats in the First State probably won't have to deal with Republicans growing their Senate majority in the lame duck.

The state's election commissioner, Elaine Manlove, said the decision rests with the governor's office, where Democrat Jack Markell would have the final say. Markell's office is still working out the details with the Senate.

Colorado

Democratic Secretary of State Bernie Buescher is primed to wait until 2011 to seat the state's next senator, though there are some rumblings of GOP dissent, and the law is pretty ambiguous.

The Wall Street Journal reported last week that Republicans might push back on Buescher, citing an anonymous source. But state GOP Chairman Dick Wadhams and Republican Ken Buck's campaign both say they aren't thinking that far ahead.

This would only matter, of course, if Buck defeats appointed Sen. Michael Bennet (D) in November. If Bennet wins, it's a moot point.

West Virginia

West Virginia state legislators changed their special election law two months ago and laid out a clear process in which the new senator would be certified immediately. That new senator will likely be Gov. Joe Manchin (D), but Republicans have some hope that businessman John Raese (R) can pull an upset.

Illinois

Illinois has set up a separate special election in its Senate race. But appointed Sen. Roland Burris (D) is appealing to the state Supreme Court to nix the special election so he can serve in the lame duck. (He's not running in the regularly scheduled election, where Kirk is running against Democratic state Treasurer Alexi Giannoulias.)

If Burris wins that case, Republicans wouldn't be able to take the seat for the lame duck.

Kirk, more than anyone else, has made an issue of the fact that he could help thwart a lame duck, launching a web site -- SaveUsFromTheLameDuck.com -- and a web video last week in which he warns of Democrats using the session to pass the union-organizing Employee Free Choice Act, a new value-added sales tax and an "all-in-one spending bill, riddled with earmarks."

In reality, it seems unlikely that Democrats would do much with the session, even if they held at their current 59-to-41 majority.

An electoral washout of Democrats would tempt some liberals to push for an aggressive lame duck, using their still-large majorities to approve items such as the union-organizing "card check" legislation and a climate change bill. But the political reality is, there would be almost no appetite for that among the moderate-to-conservative Democrats -- ousted by voters angry at their support for the Obama-Pelosi agenda -- to make their final actions in office a final thumbing of the nose at their constituents.

And, for those 21 Democrats up for re-election in 2012 they almost certainly wouldn't want one of their first actions in the new election cycle to be a lame duck session -- particularly if it came in the wake of a across-the-board defeat at the ballot box.

Democrats faced a similar conundrum last January, when Sen. Scott Brown (R-Mass.) won a stunning victory in a special election to deprive Democrats of their 60th vote for health care legislation. Some insiders argued to wait to seat Brown until after the House and Senate reconciled differences between their health care plans and then passed the final legislation with a 60-vote caucus of Democrats.

Instead, reading the political environment, Democrats forced the House to simply approve the Senate's version of the legislation rather than delay Brown's seating.

The moral of the story: the political implications make things very tough, and if the GOP can add some seats right away, it would be that much tougher.

By Aaron Blake  | September 16, 2010; 11:09 AM ET
Categories:  Senate  
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