That pesky Constitution

Posted: Dec 15, 2006 9:26 AM
That pesky Constitution

First, Senator Tim Johnson (D-SD). The first stories about his falling ill in his office hit the wires almost instantly, because he was stricken during a phone interview with reporters.

I hope, and I know you do, that Senator Johnson recovers fully and resumes his duties as quickly as possible.

After the first few hours, because the wire services and cable nets had no new information, the discussion changed from "Senator Johnson stricken with a possible stroke," as his office put it in its first statement to (at 2:45 yesterday afternoon) CBS leading with:

"Democratic Sen. Tim Johnson lay in critical condition Thursday after undergoing emergency overnight surgery to repair bleeding inside his brain, raising questions over whether his illness could cost Democrats their newly won control of the Senate."

This is instructive as we move into the Democratic Congressional Era about how the news is reported here in Washington: Nothing. Absolutely nothing is reported without the political overtones.

According to some sources, the surgery on Sen. Johnson was completed shortly after midnight Thursday morning. Five hours later - when I awoke - he was all but being pronounced dead by the Washington-based press corps as they speculated on how such an outcome would affect the Senate when it returns on January 4.

For the record, the Democrats currently have a two-seat majority: 51-49 (both Lieberman (I-CT) and Sanders (I-VT) will caucus with the Democrats). Even assuming Senator Johnson is not able to respond to the roll call to elect the Senate Majority Leader, Harry Reid (D-NV) will still win the Majority Leader's election by 50-49.

"Ah HAH," I can hear you saying. "What if Vice President Cheney, as President of the Senate, strolls in a votes for Mitch McConnell (R-KY). Doesn't that create a 50-50 tie?"

Yes. It would. Except he is Constitutionally forbidden to do that. According to Article I Section 3:

The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.

Thus, a Vice President can only vote to break a tie. He cannot vote to create one.

Until 1913, a vacancy created by the death of resignation of a Senator was filled by a temporary appointment by the Governor of the state from which the Senator had come, but only "until the next Meeting of the Legislature, which shall then fill such [a vacancy].

Why? Because until the adoption of the 17th Amendment Senators were elected - not by popular vote as they are now - but by the legislature of each state.

Innerestin', huh?

All that, said …

If Senator Johnson is not physically able to vote on January 4, and if it appears as though his recovery might take some length of time, it is quite possible that the Republicans will hold Harry Reid's feet to the organizational fire by mounting a filibuster against what is normally a routine resolution.

They may demand, with only a 50-49 Democratic margin, that committees do not have a Democratic majority - but are evenly divided. If that is the case they will demand a much larger share of the staff budget which will have a huge impact on the way investigations are conducted.

According to Time Magazine's analysis, if the GOP filibusters the organizing resolution, Harry Reid would be the Majority Leader, but the current Committee chairs - Republican Committee chairs - would retain their positions until something is worked out.

The House, because the entire membership must stand for election every two years, starts anew with each Congress. The Senate, because two-thirds of its members are holdovers, considers itself a "continuing body," so the committees will stay as they are until an organizing resolution is adopted.

I know it all sounds like a Tom Clancy novel but that's what we'll be talking about through the holidays in Washington.

On the Secret Decoder Ring today: A link to the Time Magazine piece, a Mullfoto which will thrill and amaze you, and a Catchy Caption of the Day.