Elizabeth Warren’s Path to Becoming VP Is Easier Than It Looks

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(Bloomberg Businessweek) -- The three most buzzed-about candidates to become Joe Biden’s running mate are all U.S. senators: Kamala Harris (California), Amy Klobuchar (Minnesota), and Elizabeth Warren (Massachusetts). But oddsmakers put Warren at a disadvantage because Massachusetts—unlike California and Minnesota—has a Republican governor who would probably fill her Senate seat with a fellow Republican, if given the opportunity. 

The nightmare scenario some Democrats envision is that a Biden-Warren ticket will prevail in November and Democrats will win enough Senate seats to pull into a 50-50 tie with Republicans—only to have Massachusetts Governor Charlie Baker appoint a Republican to fill Warren’s seat and hand control of the Senate back to Mitch McConnell and the GOP. “He knows,” a Democratic senator told CNN of Biden, “a Senate majority is too important to risk.” 

In reality, however, there’s almost no risk at all to Biden choosing Warren as his vice president—at least not to a hypothetical Democratic Senate majority in 2021.

That’s because Massachusetts law offers Democrats multiple paths to deny Baker the chance to name a replacement and disrupt the critical early months of a Biden administration, when Senate control would matter most. Here are three ways they could do it:

1) In 2004, when Senator John Kerry was running for president, Massachusetts Democrats changed the law to prevent then-Governor Mitt Romney from naming a Republican to serve out Kerry’s term if he won. “The law was changed to avoid having to make a change every time we’re in a bind—also known as ‘any time we have a Republican governor,’” says Jim Roosevelt, chief legal counsel of the Massachusetts Democratic Party. Instead of the governor naming a permanent replacement, the new law permits only a temporary placeholder and requires a special election within 145 to 160 days of a resignation announcement. (This backfired on Democrats in 2010, when Republican Scott Brown won an upset victory to fill the late Ted Kennedy’s Senate seat.)

Massachusetts Democrats currently have a large enough majority in the legislature to change the law once again to prevent Baker from naming a Republican to replace Warren even temporarily—and Politico reports that a bill is currently being drafted to require Baker to replace any departing senator with a member of the same party. 

2) If Biden were to choose Warren as his running mate relatively soon, and she were to announce her Senate resignation before June 23, Massachusetts law dictates that the special election to replace her would be held on the same day as the general election, Nov. 3. That’s a dream scenario for Democrats: It’s almost impossible to imagine that when voters flood the polls to dispatch Donald Trump (Biden beats him 67-33 in a recent Emerson College poll of Massachusetts), they would, at the same time, choose to send a Republican to the Senate.

3) The hitch in Option #2 is that it would require Warren to quit the Senate, meaning she couldn’t return if a Biden-Warren ticket lost. “I personally cannot imagine a scenario in which she would resign while she ran,” says Roosevelt. She wouldn’t necessarily have to.

In 2016, when Warren was being considered as Hillary Clinton’s running mate, Senate Majority Leader Harry Reid asked a top Democratic lawyer, Marc Elias, to study the options for keeping Warren’s seat. In a memo Elias prepared for Reid (that was given to me by a Democratic strategist), he noted that, while the law requires a special election 145 to 160 days after a vacancy is created, “filing a letter of resignation creates a vacancy, even if the resignation is not effective immediately.” That means Democrats could effectively dictate the timing of the special election.

Thus, even if Warren were chosen after June 23, she could ensure, through the timing of her resignation announcement, that the special election is held after Election Day (so voters would know if control of the Senate is on the line) and before the new Senate is sworn in. (Of course, in the event of a 50-50 split, Democrats would still have to win to maintain Senate control.) Given that Massachusetts currently has a surplus of high-profile Democratic Senate candidates and Senate control could hang in the balance, it’s hard to imagine Democrats losing a special election.

The safest route for Warren personally would be to wait until the day after the election to resign her seat. That’s what Barack Obama and Joe Biden did. If the Massachusetts legislature doesn’t change the law, a Baker-chosen placeholder could serve until early April. This option isn’t ideal for Democrats, who’d risk being hamstrung for two months or so after Biden’s inauguration. But neither would it be ideal for Baker, a Republican who needs the support of Democratic voters to get elected.

“We have a governor who did not vote for and does not support this president,” says Gus Bickford, chairman of the state Democratic Party. “I’m not going to put words in his mouth, but I think his actions demonstrate he does not have respect for, and does not want to help, the Republican Senate majority.” (Baker  wouldn’t bite when speaking to reporters last week: “I haven’t spent two seconds thinking about that.”) Still, banking on a Republican governor probably isn’t a risk Democrats would want to take. 

In the end, Biden would probably dictate any decision about timing, if he decided to choose Warren as his running mate. There are plenty of reasons why he might not choose her, ranging from a desire for racial and generational balance to a conviction that choosing a moderate gives him a better chance of beating Trump. But whatever his calculus, worries about losing Senate control should be pretty far down the list.

©2020 Bloomberg L.P.

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