With all due respect to the late senator, I think it's a bad idea to suddenly change the law, even if the motives are to honor a long-serving senator and also to ensure that the state is not underrepresented in the Senate. Given that the current--and in my opinion, stupid--procedure was enacted by state Democrats with partisan motives to thwart then-Gov. Mitt Romney were he to have the power to appoint a successor in 2004 to John Kerry had Kerry won the presidential election, the calls for altering it again so soon after it was changed (and again with at least a partially partisan intent) would set, or rather continue, a dangerous precedent.
But before expounding on my views about that, the Boston Globe this morning is reporting that, thanks to Gov. Deval Patrick's public statement in support, along with endorsements of the move by Kerry and Senate Majority Leader Harry Reid, momentum is growing for the legislature to make the change Kennedy requested:
Governor Deval L. Patrick, breaking his silence on the future of Edward M. Kennedy’s Senate seat, yesterday embraced Kennedy’s request that the governor be given the power to appoint someone to the seat until voters can choose a permanent successor in a special election.
“I’d like the Legislature to take up the bill quickly and get it to my desk and I will sign it,’’ Patrick said in an interview with the Globe, reiterating in his strongest terms what he had been saying throughout the day, as the state and nation absorbed Kennedy’s death and what it would mean for Massachusetts, and for the chamber he served for a half-century.
Patrick’s public statements add to growing momentum for Kennedy’s plea, which he made last week in a poignant letter to the governor and legislative leaders. Kennedy said that while he supported the state’s current method of filling vacant a Senate seat through a special election, Massachusetts could not afford to go without two senators at such a critical time.
Under current law, a special election would now be held in January, with a primary scheduled for November or December...
Pressure to change the law to allow for a temporary appointment came from Washington, too, with Senate majority leader Harry Reid pushing Massachusetts leaders to fill Kennedy’s seat quickly. Reid called Patrick yesterday to express concern over “the promptness with which we fill this vacancy,’’ Patrick said. The governor said that Reid told him that Senate Democrats needed every vote they could get in what are expected to be close Senate votes on health care and climate change this fall.
“It’s a particularly timely request at a time when there are such profoundly important proposals pending in the Congress right now,’’ Patrick, speaking at a press conference earlier in the day, said of Kennedy’s wish. “Massachusetts needs two voices in the United States Senate.’’
Senator John F. Kerry also advocated for the change yesterday, stressing that the appointment would only be temporary.
“I believe a temporary appointment would be the right thing to do,’’ Kerry said after leaving the Kennedy compound in Hyannis Port. “The voice of the people of Massachusetts will be respected.’’
There are many short-term reasons to like the change, most importantly the need for Massachusetts citizens to have a vote in the Senate that represents Kennedy's strong advocacy for national health care at a time when the nation is once again debating this issue.
But think of the consequences here. Do we really want legislatures using senators' deaths as causes to change their replacement rules? Methinks not. The nature of federalism is that states have the right to do so, but it would not only create more fairness across the Senate but better representation of state electorates to have a more uniform procedure. Though the Senate cannot mandate uniformity, what it could and should do, once the Kennedy tributes settle down, is convene a bi-partisan panel of senators to issue a strong, bi-partisan recommendation--signed by as many senators as possible--to state governments for the establishment of a more uniform set of rules.
The language in the second graph of the 17th Amendment, which is correctly remembered for ending the appointment of senators and instead making their selection by popular vote, reads: When vacancies happen in the representation of any state in the Senate, the executive authority of such 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. Unfortunately, as with so many other parts of the original or amended language of the Constitution, the language leaves open to state interpretation any number of interesting scenarios. And part of the problem here is the dumb luck (or lack of it) of timing: After all, a senatorial vacancy can occur on a schedule that is easily anticipated (e.g., it was possible by March 2004 to envision why and more or less exactly when Kerry's seat would be vacant); on a schedule that can be generally but not exactly anticipated (e.g., Kennedy is very ill but nobody can be sure when exactly he would pass); or on a schedule not anticipated at all (e.g., Sen. Paul Wellstone's tragic plane crash).
I have no set solution in mind, but suspect the best recommendation a special Senate panel could make is for states to pass laws that would:
1. Compel the governor to appoint a successor from the same party as the departing senator, so the wishes of the plurality/majority of voters is at least partially honored and the possibility of partisan shenanigans is severely limited. This could be accomplished by mandating that the governor choose from a slate provided by the state party committee of the departing senator. (In Maryland, where I teach, there is a similar process for gubernatorial replacements of departing state legislators.); and
2. Set out a sensible time schedule for special election that is relatively uniform across states and which takes into specific consideration how far away the next regular election is.
I mean no disrespect to Kennedy, his family, the state or Massachusetts or its citizenry by saying this, but the law is the law. And though it could be changed again, the bitter partisan irony here is that it was the Democrats who tinkered with the vacancy appointment process five years ago that has now come back to bite them.
Tinkering with it again may feel good in the short term, but it's not the right thing to do in the long term. And if his fellow Senators want to honor him posthumously, they ought to get together and set down a strong recommendation for all the states so that people of every state have confidence that a sudden Senate vacancy--especially one caused by a sad or even tragic death--is not cause for partisan manipulation and intrigue.