What’s the Franken Precedent for Seating Scott Brown?

February 03, 2010 | Last updated: July 31, 2020

Republicans have done a pretty fantastic job of working the refs and making a political issue out of when Sen.-elect Scott Brown (R-Mass.) will be seated. Before the election, they raised the possibility of delays to gin up conservative support. And before the polls even closed in Massachusetts, Sen. David Vitter (R-La.) recorded a video demanding that Democrats seat Brown immediately.

Right now, Brown is demanding that he be seated as soon as he is certified as the winner of the election tomorrow — sending him to the Senate a full week earlier than had been scheduled. The reason, according to his counsel Daniel Winslow, is that “there are a number of votes scheduled prior to that date.”

Because Brown is going to fill a seat left vacant by the death of another senator, there’s not a ton of direct precedent here. But the last man elected to the Senate (we’re not counting interim Sen. Paul Kirk) did not get this speedy treatment. Last year, Sen. Al Franken (D-Minn.) won a lengthy legal battle that certified his victory on June 30. Later that day, Gov. Tim Pawlenty (R-Minn.) signed Franken’s certificate of election. It took one full week for Franken to be sworn in, on July 7, more than seven months after he won the first recount of the election.

Brown’s argument that Democrats are moving ahead with votes on nominees — breaking filibusters with the help of Kirk — is compelling. But for those seven months between Franken’s recount win and his certification, the Senate simply operated with 99 senators, and the 41- (then 40-) member Republican caucus was free to filibuster Democratic bills and nominees.

Again, the circumstances of the races are so different — Franken’s slim victory, Brown’s special election — that parallels are going to be imperfect. But this sets up a no-win situation for Democrats. Either they stick to their plan and get excoriated for blocking Brown’s right to serve in the Senate — something Republicans have been ready to argue for a month — or they cave to Brown and seat him, infuriating Democrats who watched Franken sit in limbo for seven months while Republicans blocked vote after vote after vote.