With only 98 Senators seated, the number needed to hold off GOP obstructionism drops to 59...
By Brad Friedman on 2/3/2009, 3:36pm PT  

Presuming President Obama's nomination of NH's Republican Sen. Judd Gregg as Commerce Secretary will be confirmed by his fellow Senators, and presuming the Democratic Governor of NH keeps his backroom "deal" and appoints a Republican to fill Gregg's vacated seat, then Democrats in the Senate ought to take advantage of some arcane filibuster math, and hold up the seating of that replacement until MN's Senate seat is properly filled.

As things stand now, while former Republican Sen. Norm Coleman is taking his sweet time in throwing everything he can think of against the wall to see what might stick, in hopes of winning his MN election contest against presumptive Senator-elect Al Franken, the Dems need two cross-over Republican votes, for a total of 60, to stymie any attempted GOP filibuster. (That math presumes that independent Senators Sanders and Lieberman both vote with the 56 currently-seated Dems, as they do on most matters.)

However, the Senate rule requiring a supermajority (three-fifths of the Senate) to shut down attempted fillibusters with a cloture vote, is based on the number of "Senators duly chosen and sworn" --- in other words, currently seated Senators.

With two seats vacant then, from MN and NH, after Gregg's departure, that would put the number of "duly chosen and sworn" Senators needed to stop a filibuster at just 59 (or, 58.8, to be precise, but since we're not allowed to count Lieberman as .8 of a human, the number needed for cloture would be 59)...

With Gregg gone and without his replacement yet seated, that would mean Democrats would only have to find to find one cross-over Republican vote to stop a filibuster, versus the two that they have to find currently with all but the MN seat filled. (With 99 Senators seated, a super-majority is 59.4, but since we're not allowed to count the diminutive Linsdey Graham as .4, the number needed for cloture is still 60.)

As long as Coleman and the GOP plan to continue grandstanding in MN, and as long as NH's Democratic Governor John Lynch is willing to make deals to appoint a Republican, the Democrats in the Senate ought to keep the appointed replacement Senator from NH on standby, until after the properly elected Franken (should the courts agree) is seated.

Remember, Article 1, Section 5 of the U.S. Constitution, allows that the Senate is the final arbiter of who may be seated in their own chamber, so they can take their sweet time doing it, if they choose.

Yes, the 1.3 million citizens of NH would unfortunately be temporarily robbed of full represenation in the Senate for the moment, but MN's 5.2 million citizens are currently being disallowed their proper representation as well. To be clear, Coleman has every legal right to challenge the results of the U.S. Senate election in MN, but that doesn't make grandstanding (and even doctoring evidence), as much of his case has been so far in MN, acceptable, or something that Democrats need to put up with.

Yeah, it's hardball politics, but unless someone is aware of some Constitutional information that I'm not, its also both perfectly legal and Constitutional. And do you think the GOP would pause for a second to do the same thing if they were in a similar position? If you have any doubts about about that, just keep your eyes on what they're doing in Minnesota.