The Hippie Professor

In Book XII of the Odyssey the witch Circe warns Odysseus of the upcoming perils he will face.    Among those perils are Scylla and Charybdis – two monsters who reside on opposite sides of a narrow strait.  The unwary ship straying too close to Scylla will certainly lose six sailors, one for each of the monster’s six heads.  Approaching close to Charybdis risks an even greater loss, as the entire ship is likely to be sucked into a vortex and destroyed.  Odysseus is (perhaps wisely) more concerned with Charybdis – and manages to navigate the strait with “only” the loss of 6 sailors.

The statement “between Scylla and Charybdis” is often taken as synonymous with “between a rock and a hard place” – but the two are not exactly equivalent.  The Homerian myth also includes an element of cutting your losses by choosing the lesser of two evils.  Odysseus faces certain losses – but wisely chooses the smaller loss (six sailors) over the larger loss (his entire ship).

With the passing of Ted Kennedy, the Massachusetts legislature faces a similar, daunting decision.  Under existing Massachusetts law, Kennedy will be replaced through a special election to be held 140 to 160 days from now – in other words Kennedy’s seat may remain unfilled for over 5 months.  This procedure is unusual – in most states the governor names a successor when an unexpected opening occurs – in which case the vacancy is rapidly filled.  In fact, Massachusetts had such a procedure in the past – but adopted the existing law when the Democratic legislature feared that the Republican governor would appoint a Republican successor.

Times have changed, and Massachusetts again has a Democrat for a governor.  Just last week, Kennedy sent a letter to the governor urging him and the legislature to change the law yet again and allow the governor to name Kennedy’s successor.  The motive behind Kennedy’s letter is obvious yet unstated:  Democratic votes are critically needed in the ongoing fight over health-care reform.  A loss of even one vote puts the entire bill at jeopardy because it eliminates the filibuster-proof 60 vote majority the Democrats now hold.

I am a Democrat and a strong strong strong supporter of health-care reform.  Nevertheless, the proposed change in Massachusetts law scares me tremendously.  Democrats in Massachusetts face a Scylla and Charybdis decision – and it is unclear which is really the lesser of two evils.

Is it the lesser evil to jeopardize health care reform?

Or is it the lesser evil to take a bad law and make it a worse law?

Yes – I said that.  Legal scholars will tell you time and time again that making a law specifically to cover a bad situation makes for bad precedent.  If the Massachusetts legislature changes the law, what is the message?  Essentially, it would be something like this:

If the governor is a Democrat he or she may appoint the successor.  If the governor is a Republican, a special election will be held.

In blue-state Massachusetts, that boils down to saying:

Only a Democrat can fill an unexpected opening in the senate.

That is bad law.  That sets very very very bad precedent.

I say this even though I am a strong strong supporter of health care reform, and I desperately want a Democrat to fill that seat.

Think of the Republican backlash if the law is changed.  Limbaugh and Dobbs and Beck and Palin will scream to the heavens if Massachusetts goes down this path.  They will be screaming “Look what the Democrats will do!  They will cheat and change the rules just to get their way!” They probably are already screaming – but I try to listen to them as little as possible.

If the situation were reversed – if this was an action contemplated by Republicans in a red state, I would be screaming at the top of my lungs.

Does the screaming matter?  Damn right it does.  It will not change many minds in Massachusetts – but it might well change minds of independent voters in Indiana or Florida or Nevada or Virginia – or any of the other swing states so crucial in Obama’s victory.

Scylla?  Or Charybdis?

It all comes down to political capital, and how it is best spent.  If the seat remains empty for months, to what degree will this harm health care reform, and how might political capital be best spent?

With the seat empty, it is almost certain that the Democrats will not have a 60 seat, filibuster-proof majority.  But – do they have that now?  If the conservative “blue dog” Democrats continue to drag their heels, the 60-seat majority is already gone.  So, enacting bad law and spending massive political capital really gains nothing.

With the seat open, can reform still pass using the reconciliation procedure?  Remember, reconciliation requires only 51 votes.  Will Kennedy’s absence make the difference for reconciliation?  Would that single vote push the total to 51?

Maybe…. Maybe not.

If it looks like the one vote will allow reform to be enacted by exactly one vote – then the Massachusetts legislature should spend the political capital and amend the law, even if it does make bad precedent.  Health care reform is that important.

But if that one vote would result in any other total – be that 49 or 52 or 53, the Massachusetts legislature should not waste its rarest of commodities.

So – which will it be.

Scylla?

Or Charybdis?