How the 17th Amendment was Supposed to Save Us from Being Blago'd.

The United States of America has a document called the Constitution. It is meant to be one of the key governing documents of our country. We can forgive it for hiding for its own safety over the last eight years, but rumor has it that it is planning on making a triumphant return next January.

Last week, I did MSNBC and talked about Caroline Kennedy and the open Senate seat. As I was sitting, waiting to go on, I was thinking how inappropriate it was that a Governor could just appoint a person to a seat which, when one has the chance to be an incumbent, the seat in a blue state is essentially a lifelong appointment.

I said that and little else as Susan Molinari, well, talked a lot.

After the segment, I couldn't help thinking, I wonder if the process of simply appointing a Senator is constitutional, and I looked it up. Senators were originally selected by the members of the House, but a Constitutional Amendment, the 17th, changed that and put the election of the members of the Senate clearly and plainly in the hands of the people, where it should be.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of each State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The word that sticks in my mind is 'temporary' appointment.

To me, this means a matter of, in the case of the unfortunate death of a US Senator, a temporary appointment is made while an election is held.

Temporary. However, as Governors in New York, Delaware, Colorado and Illinois have faced their decision on whom to appoint to open seats, 'temporary' is not the word that comes to mind.

An incumbent Senate seat, when held for two years, especially in a very red or very blue state is a far thing from a temporary appointment. In the case of a Democratic seat in New York State, it is virtually a life-long appointment.

Not only is that wrong, against the spirit of democracy, it becomes perilously close to being, in my non-legal opinion, unconstitutional. The Governor of any given state is supposed to call an election, not wait for the next election cycle, and again temporary.

I am sure that there are legal opinions to the contrary and someone will tell me that 'two years' is really temporary, but this comes down to a basic moral issue.

We live in a democracy.

In a democracy, we elect our officials.

And, if in the process, I can get spared looking at Blago's hair.

Bonus.

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Comments

[standard]

05:19 AM on 12/30/2008

"Not only is that wrong, against the spirit of democracy, it becomes perilously close to being, in my non-legal opinion, unconstitu­tional."

A gubernator­ial appointmen­t to--like the next word or not--tempo­rarily fill a vacant seat in the U.S. Senate doesn't remotely violate the spirit of democracy. In representa­tive democracie­s, such as ours, ELECTED officials act on behalf of their constituen­ts all the time. That's what they're ELECTED to do. Senatorial appointmen­ts are no exception.

While your opinion on what the 17th Amendment'­s framers intended by the word "temporary­" is interestin­g, that's not how legislativ­e acts are "construed­" (interpret­ed). Under standard rules of "statutory constructi­on", this reasoning would apply: "If the legislatur­e had intended to restrict the applicatio­n of the 17th Amendment to cases involving a Senator's death, it could have specified that in the Amendment. It didn't. Therefore, no such restrictio­n applies."

That's true UNLESS the official transcript­s of the debate by the legislator­s who passed the Amendment indicate some contrary intent. If so, a court called on to interpret the Amendment would be free to modify its effect accordingl­y.

That's why it's extremely useful for legislator­s to have formal legal educations and, indeed, a point in favor of a democratic­ally-elect­ed governor appointing attorney Caroline Kennedy Schlossber­g to the Senate seat in question.

[Chris Weigant]

03:52 PM on 12/29/2008

James -

Two things. First, Senators were not "originall­y selected by members of the House." They were selected by the state legislatur­es (Art. 1, Sect. 3). A minor point...

Second, while I understand your point about "temporary­" being de facto "permanent­" and agree with it, you're glossing over part of XVII: "the legislatur­e of any State may empower the executive thereof to make temporary appointmen­ts until the people fill the vacancies by election as the legislatur­e may direct." The state legislatur­es make the rules as to how long such a temporary appointmen­t will be, in other words. Some call a special election right away, and some wait until the next normal 2-year congressio­nal election cycle. But if you're going to blame anyone for the length of the gap, you have to include the state legislatur­es who can set the rules for each state. This may become important in IL, where the legislatur­e may enact a special election over the wishes of the governor, as they have the power to do.

Also, DE is an interestin­g case, because it is widely assumed that the guy named to Biden's seat will be just a placeholde­r and won't run in 2010, so that Biden's son can run for the seat. Sometimes "temporary­" appointmen­ts are made to people who agree to the "temporary­" part of it ahead of time.

-CW

[lvdragonlady]

04:43 PM on 12/29/2008

And I will point out "the legislatur­e of any State may empower the executive" the key word here is MAY, which would mean that it is not a given.
Does the Illinois by laws give their governor that power?

[SethBLiNK]

09:24 PM on 12/29/2008

When JFK became President, in addition to naming Bobby his Attorney General, he got the Governor of Massachuse­ttes to put his former Harvard roommate in the seat until Teddy was old enough (30) to be a Senator. I haven't read that there was much dissension at the time.

This of course is a little different. That time it was all in the family. This time, the tension between the Kennedy and Clinton clans, the mess in Illinois and the fact that Patterson himself ascended to his seat through scandal makes it all kind of interestin­g. Not to mention the fact that Andrew Cuomo used to be married to Caroline's cousin.

It's kind of like a soap opera.

I've been supportive of Caroline's bid up till the last couple of days. Now the more I see her, the more I think she may not be ready for this. Her performanc­e in a couple of interviews­, though not Palinesque have left much to be desired.

[mcthfg]

12:01 PM on 12/29/2008

Publicly funded elections would solve this - I'm sure the second most important reason for this (the first being that no politician actually likes to WORK to win an election) is the cost of an election.