Bracing for a likely loss in today’s Massachusetts Senate race, Democrats will be sorely tempted to delay seating Republican Scott Brown should he emerge the winner.

Rep. Anthony Weiner, a leading New York Democrat, told the Wall Street Journal that in order to keep health care reform alive, “We’re going to have to finish this bill and then stall the swearing-in as long as possible.” Fellow New York Democrat Rep. Eliot Engel echoed the call for “doing a very slow count” in hopes that appointed Senator Paul Kirk could be kept in office long enough to provide a 60th vote for health care.

Massachusetts Secretary of State Bill Galvin’s office is already saying a certificate of election will have to wait 10 days for overseas absentee ballots to be returned. Cities would then have another five days to certify their own results. And Senate Majority Leader Harry Reid’s office says Mr. Brown would then have to wait until Vice President Joe Biden was “available” to swear him in.

Such shenanigans are absurd. The Congress acts as the final judge of its members and is free to swear a new member in immediately, as it did with Ted Kennedy after he won a special Senate election in 1962 and as it did with Rep. Niki Tsongas, who won a House special election in the Bay State in 2007. The Secretary of the Senate is empowered to swear in members and has done so in the past.

That’s why NBC Political Director Chuck Todd calls any swearing-in delay “the least politically viable” option for Democrats who want to keep a health care bill alive. The anger from voters at such games would be explosive. “You want to start a tea party protest outside the White House that would do it,” he said yesterday.

In addition, Democrats are unlikely to want to get into a Constitutional argument about whether Senator Kirk can still vote after today’s election. The 17th Amendment stipulates that “temporary appointments” last only until “the people fill the vacancies by election.” That has been interpreted to mean that an appointed Senator’s authority expires once his successor has been elected. A 2003 Congressional Research Service report notes that “prevailing practice is for state governors to fill Senate vacancies by appointment, with the appointee serving until a special election has been held, at which time the appointment expires.”

Given such uncertainties, Democrats are unlikely to pass a highly controversial bill such as health care if they know it will be both challenged in court and could lead to a shutdown of the Senate by furious Republican members. The Senate allows individual members to place holds on much of the chamber’s business, which could paralyze the body for the rest of this year.

‘John Fund is a columnist for the Wall Street Journal’

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