With the situation in Illinois seeming to move backward, and the news today that Minnesota will require until at least early January until it certifies a winner in its Senate race, it now appears that the 111th Congress will open for business on January 3rd with only 98 members, and that condition might persist for several weeks.
It has commonly believed that, if Minnesota has not certified a winner by the time the Senate convenes, Governor Tim Pawlenty can appoint anyone he likes to fill the vacancy — perhaps including Coleman himself! The problem with this, as John Fortier of the American Enterprise Institute points out, is that the seat doesn’t become vacant unless the Senate declares it so; instead, it’s in a sort of purgatory. Harry Reid also told Minnesota Public Radio today that the Senate would not require the seat to be filled: “It’s perfectly acceptable for us to just wait to seat somebody until somebody is certified by the state,” Reid’s office said.
One interesting application of this is that I believe it will temporarily only require 59 votes to break a filibuster. The Rules of the Senate declare that a cloture motion can pass with “three-fifths of the Senators duly chosen and sworn“. From the Senate’s perspective, a senator will have been neither chosen or sworn in Minnesota — nor in Illinois, unless the state gets its act together fast. And three-fifths of 98 is 59 rather than 60.