Death of Senator Kennedy Leaves Void in Senate

Senator Edward M. Kennedy, whose career in the Senate spanned 46 years, died Tuesday, August 25, at the age of 77. As Chairman of the Senate Health, Education, Labor and Pensions (HELP) Committee, Senator Kennedy was passionate about the need for healthcare reform, which he considered “the cause of my life,” and the fate of healthcare reform legislation in Congress is left in an even more precarious position with his passing.

After being diagnosed with a malignant glioma in May of last year, Mr. Kennedy’s appearances in Washington became increasingly less frequent, and he turned over the work of his committee to his friend and Democratic colleague, Christopher Dodd. Under Mr. Dodd’s leadership, the committee passed a healthcare reform bill on July 15, but further action in the Senate has been stalled while Senator Max Baucus, who heads the Senate Finance Committee, seeks to craft a bill covering key financing provisions that will have the support of Committee Ranking Member Charles Grassley and other key Republicans. Progress on reaching a bipartisan compromise, however, has been undermined by a groundswell of conservative opposition to reform efforts, which have characterized the bills as enabling a government “takeover” of the healthcare system. The passions the issue has aroused among the conservative base have made it difficult for Mr. Grassley, who faces a reelection campaign in 2010, to appear to be working with Democrats on passing a bill. Mr. Baucus has set a deadline of September 15 for reaching a compromise with Mr. Grassley and other Republicans. If he fails to reach a compromise, as appears increasingly likely, then Senate Democrats may seek to force through legislation by invoking a process called “reconciliation,” which requires only 51 votes to pass the Senate, thereby bypassing the typical 60 votes required to avoid a filibuster. Because the reconciliation process was designed only to avoid Senate impasses on budgetary measures, however, key healthcare reform provisions unrelated to the federal budget, such as private insurance market reforms, would likely need to be separated into a second bill that would require 60 votes to pass the Senate. With Mr. Kennedy’s death, Democrats now have only 59 seats in the Senate, and my effectively have only 58 votes, since the frail health of Senator Robert Byrd has resulted in his absence.

The fate of healthcare legislation in the Senate has put a spotlight on the issue of who will fill Senator Kennedy’s seat. By Massachusetts law, a special election is required to be held 145-160 days after the Senate seat is vacated, with no interim appointment, meaning the seat will be vacant during the important upcoming months. Prior to his death, however, Mr. Kennedy urged state legislators in Massachusetts to amend the law and allow Governor Deval Patrick, a Democrat, to appoint an interim replacement until the special election can be held. Prior to 2004, Massachusetts law enabled the governor to appoint a successor to a vacant Senate seat. Ironically, however, it was Democrats who amended the law at that time because they did not want Republican Governor Mitt Romney to appoint a Republican successor if Democrat John Kerry, the other Senator from Massachusetts, had won the presidential election that year. Changing back the law now, therefore, would risk charges of hypocrisy.

While known as a liberal, Senator Kennedy had a history of being able to forge bipartisan compromises with conservative Republican colleagues in order to pass important legislation. His absence in the Senate in recent months has certainly complicated the task of reaching a compromise with Republicans over healthcare reform legislation, and now it will be up to his colleagues to see if they can salvage the work of his HELP committee and further add to Senator Kennedy’s legislative legacy.