April 20, 2020

If the US Senate Lands Within One Vote of Democratic Control, State House Dems Have a ‘Nuclear Option’ Ready

Ayanna Pressley’s Rise Is Why Joe Kennedy is Running in 2020 Rather than Wait for a Warren Vacancy in Ted Kennedy’s Former Seat

By Al Giordano

Each of the women leaders regularly mentioned as on Joe Biden’s “short list” for vice president is White House-ready and would bring unique benefits to the ticket and the nation.

Every one of them would also bring certain political risks, as would any man as well. In this world of humans, there is no such thing as a political or personnel decision that doesn’t risk potential costs and that brings only benefits. Risks are not themselves disqualifying. Denying risk instead of managing it is what tends to turn a risk into a problem. The challenge is to accurately measure risk and weigh it to make choices in a way that maximizes the benefits and minimizes the costs and risks.

In this series we look at the costs, the benefits and the data on the most-mentioned potential running mates reportedly under consideration by the Democratic presidential nominee.

There is data that shows us already how each potential VP nominee would move the numbers and the Electoral College math. Team Biden surely has more of that data at its fingertips than we do, but what is publicly known gives us a window into the basic metrics they have to work with. There are also hard numbers that reveal which potential Biden running mates would be able to help the campaign in an area where it was weak during the primaries: fundraising. Which can raise the needed resources for the ticket to win and, importantly, what kind of money and from whom each would be able to raise it.

The only ironclad statement Biden has made about his selection – he said it at the final debate – is that he will choose a woman. His choice will reflect his comfort level working as closely as President Obama worked with him, now with the nominee he selects, and will also be a statement about his values. One of those values will surely be which VP nominee can best help him and Democrats throughout the country unseat Donald Trump and Republicans in November.

In 2008, almost nobody was urging Barack Obama to pick Joe Biden. Obama ignored the media noise and made his choice to the beat of his own drum. It turned out to be a good move – electorally and when it came time to govern. While the 2020 decision is Biden’s alone, Obama and the former VP’s inner circle (Jill and Valerie Biden, campaign manager Jennifer O’Malley Dillon, strategist Anita Dunn, Symone Sanders) are advising him on the selection. Nothing that partisans of one or the other argue about on social media over which he must choose or must not choose will have any weight whatsoever on that decision. This is not a primary. And Joe Biden isn’t reading anyone’s Twitter account.

This series seeks to correct some regular misstatements of fact about some of the leading potential nominees that, should they be nominated, could linger into the general election campaign and be weaponized by Trump and the GOP to define the vice-presidential nominee, and with it the ticket, if certain fictions regularly repeated by some partisans of other possible nominees are allowed to fester without correction now.

If Biden were scrolling through social media, he would see two common arguments made against picking Massachusetts Senator Elizabeth Warren as his running mate. One is a statement of values: That he should instead select a woman of color, and, specifically, an African-American woman. That is a powerful and legitimate point that Biden and his team are strongly considering among other values that will also make up the whole of the decision.

The other common argument against nominating Warren is based on a misunderstanding of how US Senate vacancies are filled in Massachusetts. It suggests that since Massachusetts Governor Charlie Baker is a Republican that he would naturally fill a vacant senate seat with a member of his party. And since tensions are already high over which party will control the US Senate after November’s election, that claim, if presumed to be true, is considered a Warren disqualifier by some.

The good news for Democrats who would otherwise be favorable to a Biden-Warren ticket is that the senate succession argument doesn’t pan out. Massachusetts has experienced multiple US Senate vacancies over the years. State law closely governs the process of filling any vacancy.

There may be other costs and risks to a Warren vice-presidential nomination, but a new GOP senator to replace her isn’t one of them. To the contrary, her true likely replacement would be a 46-year-old rising Democratic woman leader as dynamic and progressive as Warren, and in the early years of what will hopefully be a long lifetime of public service and skilled leadership.

Here are the fine details of Massachusetts law and politics on how one risk is already being managed to remove that concern from the cost-vs-benefit equation and show how and to whom the special election that would follow would likely play out. Both factors tip the scale a bit more toward the potential benefits of a Biden-Warren ticket.

Massachusetts Law and Political Realities of Filling a US Senate Vacancy

Massachusetts lawmakers and political insiders interviewed for this story have long experience with US senate vacancies. Senator Paul Tsongas resigned a day before his term ended in January 1985 so that Governor Michael Dukakis could temporarily appoint John Kerry – who had won the 1984 senate election – giving the state’s new junior senator a jump on the seniority of the rest of the 1985 freshman class (seniority traditionally plays a big role in the succession of senate committee and subcommittee chairmanships).

When Kerry won the Democratic presidential nomination in 2004, the state was governed by Republican Mitt Romney, who then had the power to appoint a successor. Democrats in control of the state legislature had a plan for that. They passed a law that year to force the governor to call a special election between 145 to 160 days after a senate seat would be vacated, and revoked Romney’s power to appoint a temporary successor. Romney vetoed the bill. Democratic super-majorities in both houses overrode his veto.

It turned out to be a moot point when President George W. Bush won reelection over Kerry but the 145-to-160-day deadline for a special election remains in place today.

When Senator Ted Kennedy died in August of 2009, Massachusetts Democrat Deval Patrick was governor. State House Democrats rose to the partisan cause once again. They passed a new law retaining the 145-to-160-day deadline for a special election but restoring the governor’s power to appoint an interim successor in order to preserve US Senate Democrats’ then-supermajority to be able to stomp out Republican filibusters over legislation. Patrick appointed longtime Kennedy confidant and former Democratic National Committee treasurer Paul Kirk to fill the vacancy in September 2009.

In the January 2010 special election, however, Republican state senator Scott Brown defeated Democratic attorney general Martha Coakley to fill the remainder of Kennedy’s term. That shift presaged the November 2010 elections, when Republicans would pick up six more seats previously held by Democrats, in an example of Rachel Bitecofer’s theory of “negative partisanship” in which the party out of power has in recent cycles has tended to outperform the one in power. Those are the events that set into motion Elizabeth Warren’s rise to the senate in 2012, when she defeated Scott Brown for the Kennedy seat on the same November day that President Obama achieved reelection over Mitt Romney.

In February of 2013, John Kerry resigned from the senate to become Obama’s next secretary of state. Governor Patrick appointed his former chief counsel and chief of staff Mo Cowan as interim senator with the understanding he would not run for the seat in the special election. Longtime Democrat and US Rep. Ed Markey won that special election in June 2013.

Democrats in the Massachusetts state senate and house hold a veto-proof super majority today. While there are days when they can’t seem to agree on lunch, when it comes to maintaining their party in power they historically rise to the occasion every time. In recent years it has been ritual that the two houses send a budget to the Republican governor, the governor vetoes certain line items, and then the legislature votes each time to override the veto. They have also overridden recent gubernatorial vetoes on matters ranging from union organizing rights to a legislative pay raise.

The steps to this dance are often made with a wink and a nod between Governor Charlie Baker – a fiscally conservative but socially liberal Republican in the tradition of former governor William Weld – and the Democratic House Speaker Robert DeLeo, who, conversely, has a history of being fiscally liberal but socially conservative. DeLeo plays the balance of power in the Bay State like a Stradivarius. One might say his only partisanship is on behalf of power itself.

Sources in the Massachusetts state senate tell Organize & Win that the discussion of how to fill a US Senate vacancy after the 2020 November election is not a new one. Senator Warren’s presidential campaign and the possibility that it might succeed caused senate leadership to ready a plan to ensure it remains Democratic, known as “the nuclear option.” Senate President Karen Spilka, a progressive Democrat, counts with a 34-seat super majority over the minority of just four senate Republicans.

Massachusetts senate Democrats investigated their options and found that six states today count with laws that force that state’s governor to fill any US Senate vacancy with a member of the same political party of the vacating senator. In Arizona, one of those states, Republican US Senator John Kyl is currently the appointed interim senator in the seat vacated by the 2018 death of Senator John McCain. Other states that count with this law are Hawaii, Maryland, North Carolina, Utah and Wyoming.

Sources say that Massachusetts senate leadership has the nuclear option ready to roll if needed, even if only for the brief 145-to-160-day window before a special election, to prevent the Republican governor from tilting the balance of power in the US Senate if the November election produces a one-vote majority that Warren’s seat would be needed to overturn.

There are two key x-factors in this scenario: Charlie Baker and Robert DeLeo, and the penchant each has to extract advantage for his own interests out of any potential conflict between these three powers: the governor, the house, and the senate.

The Timeline for a Massachusetts Special Election for US Senator

A look at the political calendar is instructive: The presidential election will be held on Tuesday, November 3, and the president and vice president it produces will be sworn in on January 20, 2021. Three things would have to happen for the nuclear option to become necessary: Joe Biden would have to select Elizabeth Warren as his VP. That ticket would have to win the Electoral College in November’s election. And the balance of party control resulting from that election in the US Senate would have to be exactly one that produces fifty Republicans and fifty Democrats, a tie to be decided by the party of the next vice president. In that sense, if all these events happen that exact way, Senator Warren would simply shift from the post of Massachusetts US senator to that of senate president: a “101st senator” that only votes in case of a tie, at which moments she would preside over it, gavel in hand, and only speaks if invited by the rest of the body to do so.

But in the scenario in which Warren were nominated and elected as vice president and the balance of power in the senate was down to a single vote, here is what would then happen: Warren would have a window of 58 days between November 3 and January 20 to weigh the balance of forces and determine whether there would be more advantage for Democrats if she were to resign the senate early – detonating the 145-160 day countdown to a special election – or would simply wait until Inauguration Day to start that clock. The chosen date of her resignation – sometime between November 4 and January 20 – would determine if a special election triggered by that chain of events would happen in April or in June of 2021.

For the Massachusetts state legislature to then enact the nuclear option – forcing Governor Baker to fill any interim vacancy with a Democrat – one key rules change would have to be enacted by July 31 of this year: that of extending the legislative session (which annually ends on that date but is usually extended by agreement of both houses) and of placing the matter of US senate vacancies on the list of agreed-to docket items. Both houses already plan on extending the session through the end of the year to be able to respond to the Covid-19 public health crisis.

Thus, the only consideration by Joe Biden and team surrounding the logistics of a Warren nomination for vice president is that of the calendar: They know he would have to announce his VP pick with enough time before July 31 so that Massachusetts Democrats could then queue up the nuclear option onto the docket if needed.

Another key factor in this scenario is political: Governor Charlie Baker did not back Donald Trump in 2016 and is publicly at odds with the Trump administration today over response to the coronavirus. He recently had to send state troopers to Boston’s Logan Airport to protect a shipment of medical supplies after the federal government began seizing some shipments to the state. It was Baker who also persuaded New England Patriots owner Bob Kraft to send the team airplane to China and bring back 1.2 million N95 medical masks to the state, of which Baker then had Kraft ship 300,000 to neighboring New York at the request of its Democratic Governor Andrew Cuomo.

Baker is also the lone Republican governor to join his state into the regional compact for joint post-pandemic economic planning once all seven states agree that public health guidelines can be eased. Those states are New York, Connecticut, Rhode Island, New Jersey, Pennsylvania and Joe Biden’s own Delaware. Republican governors of Vermont and New Hampshire, although their states border the compact territory, have so far declined to do so. Baker, however, is one Republican that hasn’t towed the line for Trump.

Baker Needs the ‘Nuclear Option’ as Much as the Democrats

Baker’s current political interests paradoxically align with national Democrats in a way that even if the nuclear option becomes triggered, it is highly likely that Baker would welcome it with the wink and nod that has characterized his annual budget dance with the legislature. Baker, now in his second term, seeks to be the first governor in decades to run for a third term.

Massachusetts voters had narrowly passed a 1994 referendum mandating term limits for governors and other state officials, by a margin of 51.4 percent to 48.6 percent. A 1997 court decision overturned that law. Subsequent governors, however, each abided by the sentiment behind it since and did not seek a third term. Baker currently enjoys a favorable rating from 69 percent of Massachusetts voters.

Some Bay State political insiders believe it would behoove Baker’s interests to declare that in the case of a US Senate vacancy he would appoint an interim senator who would caucus with the Democrats, citing the public health crisis and the defense of the Affordable Care Act as popular reasons to do so.

“His reelection would depend on it,” observes one Massachusetts political and business insider. “No one will accept anything less. And Trump is right now killing him by stealing medical supplies and sending them to other states. After this pandemic he could stiff any Republican and guarantee his own reelection in this state. Appointing a caretaker senator to caucus with the Democrats would do it.”

Others caution that few political leaders in state history have accrued as much political capital while also proving so notoriously reticent to deploy it. Registered Republicans constitute fewer than 11 percent of all Massachusetts voters, and the “tea party” tendency within that subgroup is a relatively small fraction of that, but in negotiations with legislative Democrats Baker is said to constantly cite them as an obstacle to his agreement on key matters.

Baker’s political support is more reliant on the 56 percent of Massachusetts voters who are unenrolled as Democrats or Republicans: they tend to vote Democratic in national presidential, senate and house elections (Scott Brown’s brief two-year senate career was the only recent exception to that trend), as well as in state legislative contests (the house currently has 126 Democrats, 31 Republicans and one Independent representative, and the senate Democrats outnumber Republicans, 34 to 4) but five of its last six governors, since the 1990 elections, have been Republican. Much of that reality is driven by two main factors: the desire by much of a largely suburban electorate to keep taxes low, and the regular eruption of political corruption scandals involving Democrats at the state and municipal levels of government.

Baker and his lieutenant governor, Karyn Polito, did not support Trump in the 2016 presidential election and Polito has already said she will not support him for reelection. Trump received only 32.8 percent of the vote in Massachusetts in 2016. Both align with national Democrats on abortion rights, same sex marriage and the defense of Obamacare (whose previous version was known in Massachusetts as Romneycare) and, now, over coronavirus pandemic response. There would be zero political upside for Baker in appointing an interim senator who would caucus with Republicans even if the senate balance of power was not within a single vote.

In the hard Massachusetts political reality of 2020, if Biden were to nominate Warren and if they win the November vote, Charlie Baker would need the nuclear option as a political shield as much as or more than the Democrats.

Baker would have no good options without one in place: He could appoint a Democrat as interim senator and anger many his own party faithful. He could appoint a Republican or an Independent that pledges to caucus with the national senate Democrats – someone like, say, former governor William Weld, who would pledge not to run in the special election a few months later – and anger some on both sides of the party divide. He could leave the seat vacant for the interim of up to 160 days, opening him to home state criticism for denying the state needed representation and clout. Or he could appoint a Republican – someone like, say, Lt. Gov. Polito – who would then run in the special election only lose it and thus expend much of the political capital Baker doesn’t like to spend.

A nuclear option – forcing him to appoint an interim Democrat, as is done in six other states – would provide Baker with his only good option. Massachusetts state senate Democrats have already calculated that they don’t mind letting him off that hook as the price of a national Democratic senate majority.

And that’s where state House Speaker Robert DeLeo, if past is prologue, will likely deploy the inherent paradoxes in that equation to extract additional advantage for his own interests. DeLeo is unlikely to give the Republican governor a freebie on this one. He will privately force concessions on budgetary and other legislative-executive points of contention in exchange for carrying out the dance in which the legislature passes the nuclear option law, the governor vetoes it, and the legislature overrides him.

If the late Massachusetts political consultant Larry Rasky, who died last month and was posthumously diagnosed with Covid-19, were still alive, this is the sort of task he would have gladly lined up, if asked, with a phone call to DeLeo, with whom he was on good working terms. In the small world of Massachusetts Democratic politics, there remain other talents at the ready to prep this chain of events should it be needed come November.

There are multiple reasons in favor of Joe Biden picking any one of the leading options for vice president on what is a very deep and wide bench of Democratic women leaders, just as there are in favor of him selecting Warren. But the suggestion by some that a Warren nomination would risk a Republican becoming the next senator from Massachusetts or that it might even briefly tip the balance of senate party control is not one of them. Massachusetts law, its Democratic legislative supermajority, and Charlie Baker’s own goals, ambitions and hard political realities converge to make such a scenario politically unfeasible for anyone with a lever of power on the equation.

There is one far more likely scenario – and politically opposite from a Republican as senator – that a Warren nomination and election as vice president would set in motion: the election of Ayanna Pressley as the next United States Senator from Massachusetts.

The Poker ‘Tell’ in Joe Kennedy’s Challenge to Ed Markey

Nobody in Massachusetts Democratic politics particularly dislikes Senator Ed Markey. Elected at the age of 30 in 1976 to the US House, he won reelection 19 times, never garnering less than 62 percent of the vote. An affable policy wonk with a bright Irish smile and demeanor and a lifelong leader for safe energy and the environment, he is well regarded by both sides of the Democratic party regular-v-progressive divide.

When Markey ran in the special election for John Kerry’s vacated senate seat in 2013, Kerry endorsed him. In his 2020 campaign, facing a primary challenge from US Rep. Joe Kennedy, progressive squad leader US Rep. Alexandria Ocasio-Cortez (D-NY) endorses him (they are cosponsors of the sweeping Green New Deal legislation to combat climate change).

Markey had run for senate once before, in 1984 for the seat vacated by Paul Tsongas, in a competition with Kerry and others. Despite Markey’s prominent leadership against nuclear power and in favor of a nuclear weapons freeze, he gained little traction among even No Nukes and peace activists. The Freeze Voter ’84 endorsement convention was brewing up, instead, an endorsement slog between supporters of Lt. Governor John Kerry and US Rep. Jim Shannon (full disclosure: I managed that convention for Kerry). Markey was well liked and historically closer to the movement, but he does not have a history of stirring passions, positive or negative. If there ever was a poster boy for Leo Durocher’s credo of “Nice guys finish last,” his name is Ed Markey. He withdrew from that first senate race in May of that year.

In the 2013 special election for Senate, the nice guy finally finished first, completed Kerry’s term, and easily won reelection in 2014.

Now he’s up for reelection and US Rep. Joe Kennedy, grandson of Robert F. Kennedy, is mounting a challenge to Markey in the Democratic primary. One would need a microscope to locate any separation at all between Markey and Kennedy on the issues. They both have reliable liberal progressive voting records and positions. Markey hasn’t been caught in any whiff of scandal or impropriety. And yet Joe Kennedy has – accurately, it turns out – calculated that Markey is vulnerable in a Democratic primary.

The reason for that is similar to the weakness that, two years ago, his friend and ally Alexandria Ocasio-Cortez saw in US Rep. Joe Crowley of the Bronx and Queens. Crowley was a highly effective legislator in Congress. In just eight years he had risen to the chairmanship of the House Democratic Caucus. He was good at it, just as Ed Markey is good at legislating on behalf of environmental law as ranking member of the Senate Committee on Natural Resources. Markey, like Crowley, was so exceptional at the Washington side of his work that over the years he neglected the local political work of glad-handing and regularly visiting the local party activists and community organizations back home.

“We haven’t seen him,” was a popular refrain heard about Markey when Kennedy announced his intentions. Joe Kennedy, although he represents a slice of the Boston metro region, has spent more time in Western, Central, Southeastern, Merrimack Valley and North Shore Massachusetts than their own junior US Senator.

A recent Boston Globe story revealed what many party activists had whispered in recent weeks: Senator Markey has not yet compiled the requisite signatures to qualify to be on the ballot in his own reelection year. When on March 3, 1.2 million Massachusetts Democrats voted in the presidential primary, virtually every Democratic incumbent and challenger had volunteers at the polls collecting all the signatures they would need in one day. Astonishingly, Senator Markey did not. Local party activists would have gladly organized it for him, if only they had been asked, just as they regularly did it for Ted Kennedy, John Kerry and Elizabeth Warren before. As the late Tip O’Neill liked to say, you gotta ask.

Then came the coronavirus and the age of social distancing and self-quarantine. Now securing voter signatures is a much more daunting task. Markey’s reelection campaign is frantically mailing full petition pages to voters in the hopes that they’ll mail them back, one or a few signatures on each, by the May deadline. Maybe he’ll succeed at it. Maybe he won’t. But that is the price of being a good legislator who is nonetheless unseen and unheard.

Joe Kennedy is not waiting his turn. The man who waited his turn and finally got it is now challenged by a popular Massachusetts Democratic dynasty and its younger scion. Even if Kennedy wins, he’ll have spent considerable political capital and bruised a lot of feelings in achieving his path upward. He launched his insurgent challenge to Markey even when Senator Warren was a leading candidate for the Democratic presidential nomination, and yet could still end up on the national ticket, or later on in the presidential cabinet, triggering a 2021 special election for her seat.

Why did Joe Kennedy not wait his turn for what was widely considered a future senate seat with his name on it? He realized sooner than most than an object in his rearview mirror was closer than it appeared. In 2018, in the next House district over from his, Boston City Councilor Ayanna Pressley showed Massachusetts and the world that she’s not waiting her turn either. She challenged incumbent US Rep. Mike Capuano – whose first US House candidacy he had lost to Joe Kennedy’s dad – in another race where little separated the challenger and the challenged in terms of issue positions. And Pressley won.

Pressley emerged as an overnight sensation on the national political scene. First, as a member of “the squad” with AOC and two other freshwomen reps. Her national TV debut came during the hearings investigating misconduct in the Trump administration. Next, as the one member to break with the squad and to endorse Elizabeth Warren for president, quickly elevated as national co-chair of the Warren campaign and in-demand surrogate across the national campaign trail. Joe Kennedy was also a prominent Warren supporter. But even as that, he was quickly eclipsed on the national stage by Pressley.

Pressley now counts with a national fundraising base, high and positive name recognition, and, importantly, has laid down markers successfully on both sides of the Democrats’ regulars-v-progressives divide.

The reason Joe Kennedy is expending all his political capital to challenge for Markey’s seat – the old Kerry-Tsongas seat – is that he had the accurate revelation that if he waited his turn Pressley was already positioned to beat him in any statewide primary to replace Senator Warren, even though it’s the old Kennedy seat of his Uncle Ted.

Ayanna Pressley is likely the only Massachusetts Democratic figure who could best Joe Kennedy in a statewide Senate primary.

If Joe Biden taps Elizabeth Warren for vice president there will be understandable disappointment among many whose hoped that this would finally be the hour for a woman of color and an African-American woman in particular to be on the national ticket. After all, there is only one black woman in the US Senate.

But there can be some joy, at least, in the knowledge that should Senator Warren be called to higher duty, the overwhelming likelihood is that by mid-2021 Senator Kamala Harris will be joined by a new ally: US Senator Ayanna Pressley. And that may prove the more enduring squad.

Al Giordano is a former political reporter for the Boston Phoenix and former partner in the Boston political consulting firm, Ways & Means. Most of his reporting on the US elections, including projections of primary and election results prior to the votes, is sent exclusively to subscribers via the Al Giordano’s América newsletter. To subscribe for 2020, click here.

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