Could a Democratic corruption scandal help repeal ObamaCare?

Remember Robert Menendez? The Democratic Senator from New Jersey has kept a relatively low profile since being indicted in early 2015 on corruption charges, perhaps hoping to play out the clock. His effort to stave off a trial by using the Speech or Debate Clause ran aground at the Supreme Court in April, and the scene will shift to the courtroom in just under three weeks.

So far, Menendez has steadfastly proclaimed his innocence and refused to resign. A conviction for corruption will leave no choice but to vacate his seat, and as Shane Goldmacher reports at the New York Times, that will have consequences far beyond the electoral complications. With Chris Christie able to appoint an interim replacement, Democrats worry that Mitch McConnell might finally get the 50 votes he needs to repeal ObamaCare once and for all:

If Mr. Menendez, a Democrat, is convicted and then expelled from the United States Senate by early January, his replacement would be picked by Gov. Chris Christie, the Republican governor of New Jersey and an ally of President Trump.

That scenario — where Mr. Menendez’s interim replacement would more than likely be a Republican — would have immediate and far-reaching implications: The Republicans would be gifted a crucial extra vote just as the party remains a single vote shy in the Senate of advancing its bill to dismantle President Obama’s signature health care law. Those potential consequences only heighten the drama around the first federal bribery charges leveled against a sitting senator in a generation. …

It’s enough to have Democrats anxious. “Many of us have a personal concern about Bob Menendez,” said Robert G. Torricelli, a former Democratic senator of New Jersey. “But there’s also an overriding concern about the Republicans’ strengthening their control in the Senate and, in the near term, being able to repeal Obamacare and 16 million people losing their health care.”

If anyone would know about the impact a corruption scandal could have on the state’s Senate representation, it’s Torricelli. “The Torch” had to resign his nomination to a second Senate term after getting ensnared in a corruption scandal of his own. Democrats sued to get retired Senator Frank Lautenberg on the ticket in his place, which the New Jersey state Supreme Court allowed, despite the legal deadline for ballot changes having passed. Lautenberg then won the election and remain in office until he passed away in 2013. Torricelli was later cleared of criminal liability by the Department of Justice, but earned a formal rebuke from the Senate Ethics Committee before he left the Senate.

The portents don’t look good for Menendez. The appellate court ruing that the Supreme Court let stand in its decision noted that the alleged emoluments received by Menendez were too specific to be considered normal politics or just ethical questions. The man who allegedly supplied those emoluments, Salomon Melgen, got convicted in April on 67 counts of Medicare fraud, and faces up to 30 years in prison. His sentencing has been postponed until after the upcoming Menendez trial, in which he is a co-defendant, which might make for some incentive for Melgen to cut a deal with prosecutors as the trial approaches. Small wonder that Democrats are worried.

The question will be whether the trial finishes in time for Christie to appoint an interim replacement. His term in office ends on January 16th, at which point in time a Democrat may well take his place. If Menendez can delay or string out his trial for four months — not terribly likely, but possible — then Democrat Phil Murphy will likely appoint his successor. Otherwise, Christie gets to pick, and given his general affinity for Trump, it will almost certainly be a pro-repeal Republican who gets the 18-month gig.

Alternately, Menendez can refuse to resign, but Republicans will almost certainly force Democrats to expel Menendez after a corruption conviction, lest they allow the GOP to paint them as defending it in the midterms. It takes a two-thirds vote, however, so Mitch McConnell will need to find 16 Democrats to agree to an expulsion.  The last successful expulsion took place in 1862, at the end of a string of Senators expelled for supporting the South in the Civil War. The most recent three attempts ended in resignations: John Ensign (2011, financial improprieties), Bob Packwood (1995, sexual misconduct), and New Jersey’s own Harrison Williams (1982, Abscam corruption case).

Finally, the question still remains whether Republicans could actually take advantage of this opening. They came one vote shy of passing a shell bill in order to have a conference committee draft a new version of ObamaCare repeal, so getting an extra Republican might make the difference. But it took a mighty effort for McConnell to get to 49, and putting that band back together might be quite a challenge. And even if the new appointee gets the shell bill to 50 votes and a conference committee, there’s still no guarantee that both chambers will accept whatever that panel produces.

At the very least, it’s an opportunity … but that’s probably all it will be.