Illinois: What Happens Next

Reports are that the Illinois Legislature will meet in a special session ASAP, and call for a special election to be held sometime in early 2009 to fill the senate seat formerly held by Barack Obama. This is one way to sidestep the possibility that Rod Blagojevich will still try and appoint Obama's successor. Contrary to our earlier reporting, the Senate probably lacks the authority to reject Blagojevich's appointee outright (although it could feasibly try and expel him from the Senate). Assuming that the special election goes forward, here is a sense for the timing it might entail.

1. How long will it take to hold the Special Election?

When members of the House depart, they are routinely subject to special elections. Between the 109th and 110th Congresses, there was an average gap of 106 days between the departure of a sitting House member and the swearing in of his replacement following a Special Election. This gap, however, varied significantly from seat to seat, from a minimum of 19 days (Donna Edwards replacing Al Wynn in MD-4, whom she had already primaried out) to a maximum of 194 (Duke Cunningham's seat in CA-50). We exclude cases in which the state waited until the subsequent General Election to select a replacement, as happens occasionally.

The states generally have broad latitude for how they want to conduct their special elections. In some cases, the governor will call for nominations from each party, effectively bypassing the primary phase. In other cases, such as in California, candidates from all parties will compete in a "jungle primary", with a runoff to be held between the top two candidates if no candidate achieves 50 percent of the vote. In still others, of course, the state will hold both a special primary and a special general election; this is what happened in IL-14 after Dennis Hastert resigned, which required a total turnaround time of 106 days.

We don't know what Illinois will do, because it does not have a fast special elections law for Senate vacancies and will literally be writing the rules as it goes along. But with several viable candidates on either side it is safe to assume that the state will want to hold some kind of full-fledged primary, whether a standard-issue type like happened in IL-14 or, less likely, a jungle primary followed by a runoff.

A 106-day window from today would suggest that the vacancy could be filled by March 25. However, that average is taken from House vacancies rather than Seante vacancies, which are more consequential and arguably call for a longer campaign cycle. If I had to set an over-under, I would expect a special primary on or around Tuesday, March 10th, and a special general on or around Tuesday, April 20th.

Regardless of what happens in the special election, this seat will again be contested in 2010, when Barack Obama's first term was originally set to expire. Special elections do not reset a senator's clock.

2. What happens to the seat until the Special Election occurs?

Although vacancies in the Senate are usually filled by gubernatorial appointment until a special election can be held, this is not a requirement, and a couple of states in fact prohibit the practice. Oregon, for instance, which is one state that does not permit a gubernatorial appointment, had a vacancy that lasted for approximately four months between Bob Packwood's resignation and the swearing in of Ron Wyden after he won his special election.

Vacant seats are not accounted for in the denominator when calculating the three-fifths majority required for cloture (filibuster-breaking) motions. That is, in order to break a filibuster, the Democrats would require three-fifths of 99 votes rather than three-fifths of 100. Three-fifths of 99 is 59.4. I believe, however, that the Senate would round up to the nearest whole number rather than down, meaning that 60 votes would still be required for cloture. Effectively, then, a vacant seat would work against the Democrats, and so they have some incentive to avoid this.

The Senate is in a bit of a pickle if Blagojevich tries to appoint someone before he vacates the governor's office (and before any special election were held). It could conceivably try and expel Blagojevich's appointee, although Blagojevich could then simply appoint another candidate, starting the process over again.

If Blagojevich resigns or is impeached before the special election occurs, then Lieutenant Governor Pat Quinn might appoint a replacement (although he wouldn't have to); the Senate would presumably be happy enough to seat such an appointee. Who might Quinn appoint under such a scenario? Presumably, nobody who was on the Blagojevich short list would want to touch the position, feeling as though they now had to win the seat fair and square in the special election. However, Quinn does have a couple of interesting choices. Specifically, Illinois has five living ex-senators (not counting Barack Obama): Democrats Carol Moseley Braun, Alan Dixon, and Adlai Stevenson III, and Republicans Peter Fitzgerald and Chuck Percy. While Percy is now 89 years old, any one of the other four might restore some credibility to the position. Fitzgerald, of course, being a Republican, might seem the least likely alternative, but presuming that he was comfortable with serving for a couple of months and then bowing out for the winner of the special election, he might allow Quinn (and the rest of the Illinois Democrats) to build some goodwill.