The Mitch Contingency

There’s a lot of commentary floating around to the effect that Senator McConnell is already dead and that his doctors are keeping his death a secret in order to a) prevent Governor Beshear from nominating or a replacement, or b) head off a special election that might give Thomas Massie the opportunity to take the Senate seat. Unfortunately, these interpretations both run afoul of actual Kentucky state law. With respect to the first, it was once the case (forgive me for failing to track down the relevant statutes, but here’s an explainer I wrote as of 2023) that a Kentucky governor had the ability to freely name a replacement to a US Senate vacancy, but that ability went away about a decade ago, replaced by a procedure that would force the governor to nominate someone of the same party as the vacated Senator. Andy Beshear has always argued that the change was an unconstitutional infringement of his gubernatorial powers, and in 2023 this made things kind of interesting because it was at least faintly plausible that Beshear could nominate a Democrat and Schumer could swear that Democrat in before anybody had a chance to object. The constitutional chips would then fall where they may… although it’s quite likely that the GOP would simply have impeached Beshear if he’d tried it.

Anyways, the law changed again in 2024 to take the decision out of the hands of the governor. Now, a vacancy is to be filled by a special election. Fortunately or no, the legislation is not over-specific on the question of when that special election has to happen. If Mitch kicked it today I think Beshear could technically call a special election that would occur in 60 days. Anyone could run in that special election, and the winner would serve out the remainder of McConnell’s term. Unfortunately for internet politicos, almost no one seems to want this because we have a Senate election scheduled for November that already features candidates nominated by the two major parties (Charles Booker on the Democratic side and Andy Barr on the GOP). If Mitch were to die and not be replaced, the winner of that election would immediately fill the seat (no need to wait until January), which is widely regarded as being Good for Kentucky as the new Senator would have an advantage in seniority over the rest of the 2027 entering class.

So it’s a bit of a mess but probably not enough of one to construct an elaborate Weekend at Bernie’s scenario in order to avoid. No one here seems to think that Beshear will call the special election, and no one seems to think that the heavily GOP legislature would apply any pressure at all to force him to do so. If he did, I imagine that Barr and Booker would run, and it is not inconceivable that someone like Thomas Massie could throw his name into the field… and the absolute upside would be a Senator Massie or Senator Booker who would serve until January, at which point he would be replaced by the winner of the Barr-Booker race, who is likely to be Andy Barr. It is somewhat more likely that the winner of the special election would be Andy Barr, which would simply mean that Barr would take office in September instead of November.

So… there’s not really a way for Democrats to win here. My suspicion is that Senator McConnell is legitimately gravely ill and that it is certainly possible he will pass away before the general election, but that it is extremely unlikely that there will be a special election because that would be a costly mess that would benefit approximately nobody. If Mitch is conscious and unwilling to resign, literally nothing can be done to compel him to do so. If he is unconscious, there is no mechanism under either state or federal law that can compel his replacement. Beshear could try to YOLO this and nominate a Democrat, but the Senate is now in GOP hands and there’s no chance that nominee would be seated… although again, it is extremely likely that Beshear would be impeached and convicted if he tried something like that.

I’ll conclude by adding that Thomas Massie is not a good dude and making him a senator in order to create an extremely temporary mess for the GOP does not seem worth the trouble.