Democrats complained a lot about the way Republicans passed the tax bill. Megan McArdle explained1:
“Last week, as you may have noticed, Republicans passed a tax bill. As you may also have noticed, Democrats were aghast. Passing a bill like that on straight party lines! Using a parliamentary maneuver to push through something that could never have survived a filibuster! How could Republicans be so brazen, so immoral, so fiscally irresponsible?
Those of us who remembered saying many of the same things during the passage of Obamacare had to beg them to stop. I mean, we could have been seriously hurt, laughing that hard.”
In addition to the things Ms. McArdle mentioned, there were complaints about how Senators Bob Corker and Mario Rubio agreed to vote for the bill at the last minute. Democrats complained Senator Corker had abandoned his concerns about the deficit, and Senator Rubio was bought off by a last-minute change to the family tax credit. Of course, in making those complaints, the Democrats forgot about the Cornhusker Kickback and the Louisiana Purchase that got Senators Ben Nelson (of Nebraska) and Mary Landrieu (of Louisiana) to vote for Obamacare.
Then, on June 30, 2009, the Minnesota Supreme Court decided the senatorial recount in that state in favor of Al Franken over Republican Norm Coleman. The Democrats had their 60 votes.
But Teddy Kennedy died on August 25,4 and the Democrats fell back to 59 votes – until Democrat Paul Kirk was appointed on September 24, 2009, to fill Senator Kennedy’s seat. Getting Mr. Kirk appointed was not that easy, however. In 2004, when Mitt Romney was governor of Massachusetts, the state legislature took away the right of the governor to fill a U.S. Senate vacancy by appointment, providing for a special election instead. The Democrats did this because they didn’t want Governor Romney to appoint a replacement for Senator John Kerry, if he won the 2004 presidential election.
This became a problem in 2009 when Senator Kennedy died. Democrats didn’t want to wait months for a special election to fill Senator Kennedy’s seat. They needed the vote for Obamacare right away. Therefore, in September, the Massachusetts legislature passed another law, this one allowing for a gubernatorial appointment until a special election could be held. Voila, Paul Kirk was appointed, and the Democrats were back up to 60 votes. Obamacare passed the Senate, 60 to 39, on December 24, 2009.
When Scott Brown won the special election to replace Ted Kennedy on January 19, 2010, largely because even Massachusetts voters were not keen on Obamacare, the Democrats fell back to 59 votes in the Senate. This meant the Democrats in the House couldn’t change a single word of the Senate bill. If they did, it would have had to be voted on again by the Senate – and there weren’t 60 Democrats in the Senate anymore.
Which is one reason Obamacare was such a mess. The bill that passed the Senate was little more than a first draft. It needed cleaning up and fixing, the kind of thing that normally happens after the other house looks at a bill and then there is a conference committee. But the Democrats no longer had 60 votes in the Senate, so the House had to pass the Senate bill without any changes, even though it was a mess, because the Democrats couldn’t pass it through the Senate again.
In other words, Obamacare just barely passed. The Democrats passed it during a window of less than six months when they had the necessary 60 votes to avoid a filibuster in the Senate.
Except, Obamacare should never have passed – because there never should have been 60 votes for Obamacare. In 2008, Senator Ted Stevens (R, Alaska) was running for re-election. He was very likely to win until, on October 27, he was convicted of lying on his Senate financial disclosure forms about who paid for the cost of renovations to his vacation home.5 Even with the conviction, Democrat Mark Begich only beat Senator Stevens by 3,953 votes.6
People would probably say it was good Senator Stevens lost, since he was convicted of ethics violations. Except, in early 2009, Senator Stevens’s conviction was overturned because of gross prosecutorial misconduct. In 1963, the U.S. Supreme Court made clear, in Brady v. Maryland, that the prosecution has a duty, in a criminal trial, to provide the defendant with all evidence in its possession that might exonerate the accused.
The Department of Justice lawyers didn’t do that in Senator Stevens’s case. They had considerable of exculpatory evidence in their possession that they didn’t turn it over to Senator Stevens’s lawyers. The misconduct was so bad that, on April 1, 2009, Attorney General Eric Holder asked the judge in Senator Stevens’s case to set aside his conviction and to drop the charges against him.
Federal District Court Judge Emmet G. Sullivan, the judge in Senator Stevens’s case, was so appalled by the actions of the government’s lawyers that he appointed a special prosecutor to investigate what happened. The special prosecutor found that two of the government lawyers “intentionally withheld and concealed” evidence from the defendant’s lawyers and that the case against Senator Stevens was “permeated by the systematic concealment of significant exculpatory evidence.”7 A later review by the Department of Justice itself wasn’t as damning, if you think a finding that two of the government’s lawyers committed “reckless professional misconduct” is all that much better.8
All of which meant, as per the title of my blogpost of April 2, 2009, the day after Senator Stevens’s conviction was thrown out: “Ted Stevens Isn’t Guilty and He’s Not a Senator.” This was before the reports came out about just how bad the prosecutorial misconduct was. Even at that point, however, I asked:
“What if Republican Ted Stevens had been in the Senate for the past three months instead of Democrat Mark Begich? Instead of a 58-41 party split (we’re still waiting for Minnesota), we would have a 57-42 split. Would have made a difference on some of those bills that passed without a vote to spare?”
Little did I know when I wrote that blog post that Minnesota would go for Franken, Spector would switch parties, and Obamacare would pass because a couple of rogue prosecutors engaged in “reckless professional misconduct.”9
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1 She said it so well, why should I try to write it myself?
2 A recount was in process in Minnesota.
3 In addition to the reasons he gave, Senator Specter was worried about Pat Toomey running against him in the 2010 Republican primary, and he thought he might have a better chance to get reelected as a Democrat. He didn’t. He lost to Rep. Joe Sestak in the Democratic primary, who then lost to Mr. Toomey in the general election.
4 Forty years and one month after Mary Jo Kopechne.
5 Senator Stevens was indicted less than 100 days before the general election. Also, even though Senator Stevens was from Alaska and the vacation home which was the subject of the allegedly improper filings was in Alaska, he was indicted in the District of Columbia. While the technical theory may have been that Washington was where the allegedly improper filings were made, it was also where, I am sure, the prosecutors thought it would be easier to get a conviction, with a DC jury.
6 Begich received 151,767 votes (47.77%) to Stevens’s 147,814 votes (46.52%).
7 Among the more egregious examples of misconduct, according to Judge Sullivan, were these:
“Rather than call a witness whose testimony would have supported Stevens, the government flew the witness home to Alaska. The prosecution also concealed that its star witness had an illegal sexual relationship with an underage prostitute, whom he had asked to lie about their relationship.”
In addition, one of the prosecutors remained silent when the chief witness against Senator Stevens made a statement on the witness stand that the lawyer knew to be incorrect.
However, because Judge Sullivan had not issued a specific order requiring the prosecution to disclose all exculpatory evidence to the defense, the two prosecutors in Senator Stevens’s case could not be found in contempt of court (even though they were required by law to disclose the evidence). As a result of his experience in this case, Judge Sullivan now issues this kind of specific order in all criminal cases he handles. When Judge Sullivan urged the Judicial Conference Advisory Committee on the Rules of Criminal Procedure to amend the criminal rules to require of disclosure of exculpatory evidence (which the Constitution requires), they said it wasn’t a big enough problem to require a change in the rules. I wonder how many improper convictions are needed to constitute a big enough problem?
8 Even though the DOJ review said that the two prosecutors should be suspended for 40 and 15 days, respectively, the two prosecutors never had to serve them. A lawyer with DOJ’s Professional Misconduct Review Board said it was just “poor judgment” on the part of the prosecutors. No big deal – as long as you’re not the person wrongly convicted.
9 Charlie Savage mentioned, in the two New York Times articles linked to above, that Senator Stevens’s conviction and the loss of his Senate seat eight days later, would, along with the other things mentioned above, “briefly [give] Democrats a filibuster-proof majority in the Senate, which enabled them to pass the health care law.” Other than that, the impact of Senator Stevens’s trial and the misconduct of government prosecutors in his case is not given the importance it deserves.
UPDATE (1/11/18 8:35 am): Added footnote 9.
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