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Why Is Former Senator Paul Kirk Still Voting on Legislation?

The Senate has voted on three pieces of legislation today that required 60 votes–to raise the debt ceiling to $14.3 trillion, to reduce the deficit by establishing five-year discretionary spending caps, and Ben Bernanke’s confirmation–all of which interim Senator Paul Kirk (D-MA) has voted on. In addition, there have been other Senate votes since Scott Brown was elected as Massachusetts senator that Kirk cast a vote.

The main question here is: why is former Senator Kirk still voting on these legislative pieces?

According to Senate rules and precedent, Kirk’s term expired last Tuesday upon the election of Scott Brown. Furthermore, Massachusetts law can be interpreted, according to GOP lawyers, as:

Based on Massachusetts law, Senate precedent, and the U.S. Constitution, Republican attorneys said Kirk will no longer be a senator after election day, period. Brown meets the age, citizenship, and residency requirements in the Constitution to qualify for the Senate. “Qualification” does not require state “certification,” the lawyers said.

Additionally, as reported in the Weekly Standard and investigated and confirmed by GOP lawyers:

Appointed Senator Paul Kirk will lose his vote in the Senate after Tuesday’s election in Massachusetts of a new senator and cannot be the 60th vote for Democratic health care legislation, according to Republican attorneys.

Using this interpretation, Kirk cannot vote on any other legislation. Moreover, further analysis by Michael Stern concludes:

The Senate subcommittee and committee concluded, based on its hearing and review, that “the term of service of a Senator appointed to fill a vacancy in an unexpired term ends on the day when his successor is elected by the people.” 1939 Congressional Record, p. 998. There was evidently no controversy among either the subcommittee or full committee regarding this legal conclusion, and the committee then presented a resolution to the Senate for adoption, expressing the view that Berry’s term of service expired on November 8, 1938, the date of the special election. As Senator Connally, a member of the subcommittee, explained to the Senate, the fact that the Tennessee statute purported to extend Berry’s term until the qualification of his successor was of no force because the statute was “plainly in conflict with the provisions of the seventeenth amendment.” Accordingly, the Senate adopted the proposed resolution without dissent. 1939 Congressional Record, p. 1058.

Based on this authority, it would appear that a valid point of order could be raised as to Senator Kirk’s participation in Senate proceedings after January 19, 2010.

Why is the GOP allowing the Democrats to blatantly violate Senate and election rules and laws? Where is the GOP leadership? Will Kirk’s votes stand? Massachusetts voters deserve an explanation as does the rest of the country for this blatant abuse of power.

Crossposted at Big Government

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