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Evan Horowitz | Quick Study

If Elizabeth Warren is VP, Charlie Baker may play kingmaker

Governor Charlie Baker.Josh Reynolds for The Boston Globe/file 2016

Who better than US Senator Elizabeth Warren to join the Democratic ticket and heal the rift that opened up during this year’s primary? She has the populist credibility that drove Bernie Sanders’ campaign, along with the pragmatic attention to policy detail that has made Hillary Clinton such an enduring force.

But there are some towering obstacles, including our own Governor Charlie Baker.

If Warren became vice president, her abandoned Senate seat would fall into Baker’s hands. Under the current law, he could appoint a short-term Republican replacement — a scenario that could potentially keep Democrats from regaining control of the US Senate.


That is, unless Massachusetts legislators strip Baker of this power, which we know they can do because they’ve altered the appointment rules before to advance Democratic interests — twice in the last 12 years. A third opportunistic rule change would count as an epic flip-flop-flip for local Democrats, but what if it’s the only way to keep Warren in the running?

How big a role does Baker play?

Baker plays a narrow but important part in this process. He gets to appoint a temporary successor if Warren ascends from the Senate to the vice president’s office. That successor would serve a mere five months, after which there would be a special election.

Five months can be an eternity in politics, however, especially if the Senate is closely split.

Imagine a scenario where Democrats control 49 seats, Republicans control 50, and the last vacancy rests with Baker. He’d be kingmaker, with the power to secure Republican control, stymieing President Clinton’s agenda in her first weeks and months. That’s not idle speculation, either.

At the moment, Democrats seem well-positioned to pick up the five seats they need for an outright majority in the Senate. But losing Warren along the way would make the task one notch more difficult. Harry Reid, who leads Democrats in the Senate, said recently that he would “yell and scream” to stop Clinton from taking such a risk.


Can the Massachusetts Legislature rescue Warren’s candidacy?

The state Legislature is not entirely impotent here. It can minimize — but not eliminate — the cost of losing Warren. All that’s required is to strip Baker of his power to appoint a replacement, letting the Senate seat sit vacant until the special election.

There are a few scenarios where that could make a difference. If Democrats get 50 votes and Republicans 49, then the vacancy would ensure Democrat control whereas a Baker appointment would leave the Senate awkwardly split (technically, control goes to the vice president’s party, but split rule is messy and constraining.)

Massachusetts legislators have cut governors out of this process before. Back in 2004, when it looked like then-US Senator John Kerry might capture the presidency, the law was changed to block then-Governor Mitt Romney from picking his replacement.

Five years later, shortly after the death of Edward Kennedy, legislators reversed themselves, giving Governor Deval Patrick, a Democrat, the authority to pick a replacement.

For the past 12 years, in other words, the basic rule for filling vacancies seems to have been something like: “whatever helps Democrats the most.”

But that doesn’t mean legislators are eager to reverse themselves yet again. Even in liberal Massachusetts, a third bite at this apple might be too politically sinful for voters to stomach.

And yet, if Warren gets the nomination and the fate of the US Senate suddenly seems to depend on quick action from the Massachusetts State House, we could well see a new push. As a defense, legislators could invoke the simplest of explanations: This is politics, of course it’s political.


Why not let someone else appoint a successor?

It seems like there should be a way off this political roundabout where the governor has the power to make temporary appointments, then loses it, then gets it again.

For instance, why not cut the governor out entirely and let the Senate president or House speaker make temporary appointments? Or what if Warren herself got to pick a temporary replacement as a final act on her way out?

Trouble is, these are all outside the constitutional pale. The 17th Amendment to the US Constitution gives states two choices when faced with a Senate vacancy: wait for a special election, or let your governor pick a replacement.

Are Democrats certain to win the special election?

Not necessarily. Because they take place in the political off-season, special elections tend to attract an unusual electorate, with unpredictable results. Witness Scott Brown, a Republican who shocked the country by claiming Kennedy’s former seat for the Republican Party.

Democrats do have a number of advantages, including a much deeper pool of potential candidates. Over 80 percent of state legislators are Democrats, as is the entire congressional delegation.

One way for Republicans to counter this advantage is by using the temporary appointment to boost the visibility and name recognition of a favored conservative, who could then run in the special election. Patrick made a point of eschewing this strategy, appointing two short-term senators who pledged not to stay. But it’s not clear how strong this precedent really is.


Machinations aside, it does seem like the Democrats would have a good, if not certain, chance of holding on to Warren’s Senate seat in a special election — and with that, better odds of controlling the US Senate.

Will Warren ultimately get the nod?

Even with Baker standing in the way, Warren may still make the Democratic ticket. Not just because of her dual reputation as a populist firebrand and detail-oriented legislator. But also because lots of her VP competitors face a similar problem.

Senators Cory Booker of New Jersey and Sherrod Brown of Ohio are often mentioned alongside Warren, but they, too, come from states with Republican governors eager to appoint right-leaning replacements. And beyond that, the universe of options isn’t all that big.

In the end, if Warren becomes vice president, control of the US Senate may be decided right here in Massachusetts. Possibly by Baker, seeking out an appropriate replacement. Alternatively by the Legislature, risking opprobrium by reversing itself yet again.

Evan Horowitz digs through data to find information that illuminates the policy issues facing Massachusetts and the United States. He can be reached at evan.horowitz@globe.com. Follow him on Twitter @GlobeHorowitz.