Democrats are demanding that Republicans hold off Senate votes on the tax bill until Alabama’s new U.S. senator, Doug Jones, is seated. It was a ridiculous demand when Republicans made it in 2010, and it’s a ridiculous demand now. I can’t blame Charles Schumer for trying and for pointing out the hypocrisy, but there’s just no case for it.
Back in 2010, Republicans held a different view. The Senate had succeeded in passing the Affordable Care Act in December 2009, just before recessing… thanks to the support of all 60 Democrats to overcome a united Republican filibuster. The next step was expected to be a House-Senate conference committee to work out a unified bill, necessary because the versions passed by the two chambers differed.
On Jan. 19, 2010, Republican Scott Brown won a special election in Massachusetts, narrowing the Democratic majority to 59-41 and removing the possibility of defeating a filibuster if Republicans remained united.
One option for the Democrats then would have been to accelerate their timetable, agree to a new version, and rush it through both the House and the Senate before Brown was sworn in on Feb. 4. Republicans immediately objected that it would be undemocratic to do so, and at least some Democratic senators agreed. Democrats made no attempt to rush anything through, or to pressure senators to agree to such a maneuver. Instead, Democrats wound up with a new plan: The House accepted the Senate version of Obamacare, but then both chambers passed a second bill under reconciliation procedures, which meant they only needed a simple majority in the Senate.
Perhaps Barack Obama, then-Majority Leader Harry Reid and then-Speaker Nancy Pelosi didn’t rush ahead because they were afraid they would lose votes if they tried. But it was also a practical problem. Rushing would produce a sloppier piece of legislation, and there were real issues that needed time to work out.
Regardless, the idea that outgoing Massachusetts Democratic Sen. Paul Kirk should not have been able to vote on anything after Brown was elected but before he was sworn in was a terrible argument. After all, full lame-duck sessions of Congress — sessions between the election and when the new Congress takes office — have a long, long history. The president, of course, continues to be president even if his or her replacement is chosen in November; in fact, until the 1930s, the outgoing president remained in office until March, not January.
Of course, Alabama election officials should follow standard procedure in certifying the election so that Jones can be sworn in promptly. We can’t assume that will happen; after all, Michigan Gov. Rick Snyder just refused to schedule the special election to replace Rep. John Conyers (and almost certainly elect a Democrat) until November 2018 (to be fair, federal and Michigan law probably meant that the election could not take place before late spring, but that still leaves several months of delay for no good reason).
As long as Jones is seated properly, there’s nothing at all wrong with outgoing Alabama Sen. Luther Strange continuing to serve — and to vote on legislation and nominations.
Granted, I do think that Senate Majority Leader Mitch McConnell and House Speaker Paul Ryan should slow down the process and take the time to develop good legislation, instead of rushing it through and creating a huge gift for tax lawyers through poor drafting and poorly-thought-out provisions.
There’s nothing wrong, however, with voting before Jones gets to Washington — just as there would have been nothing wrong eight years ago.
Jonathan Bernstein is a Bloomberg View columnist. He taught political science at the University of Texas at San Antonio and DePauw University.