Further Thoughts on "Getting to 60" and the Kennedy Vacancy
	By VIKRAM DAVID AMAR
	Friday, September 11, 2009

In a prior column, I discussed various constitutional considerations arising from the United States Senate vacancy created by Edward Kennedy's death, and from the general question of how to fill such vacancies. In this column, I examine the discussions currently underway as the Massachusetts legislature considers empowering Governor Duval Patrick to make a temporary appointment to fill Kennedy's seat, until a special seat-filling election is held in January.

In particular, I highlight an effort to empower the Governor, but also to bar him from appointing anyone who is planning to run in the special election. While attempts to exclude the appointee from being a candidate at the election may be well-intended, they raise complex constitutional problems.

Background

It is quite understandable why many in Massachusetts (and nationwide) want the vacancy created by Senator Kennedy's death to be filled sooner, rather than later. As things stand, Wyoming today has twice as many votes in the Senate as Massachusetts—a state with over 10 times Wyoming's population—and under current law, this odd result will continue for another four months. Moreover, Senator Kennedy was one of 60 Senators who might be expected to vote Democratic, and the number 60 is important, because that is how many votes are needed to overcome filibusters in the Senate.

It is also quite understandable why some in Massachusetts are reluctant to tinker with the system currently in place. Almost all states give their governors temporary appointment power (as the 17th Amendment allows, but does not require). For decades, Massachusetts also did so, but in 2004 the state legislature withdrew this appointment power. It did so because the Democrat-controlled legislature did not want Republican Governor Mitt Romney to replace Democrat Senator John Kerry, in the event that Kerry left the Senate to become President in early 2005. As Massachusetts lawmakers now discuss amending the 2004 statute to reauthorize the governor (currently Democrat Patrick) to fill the vacancy, critics have challenged these shifting rules and proposals as pure partisanship.

There is intuitive appeal to this charge. But with respect to both the 2004 change in statute and the one being put forward now, Democrats can plausibly claim that their reforms are simply designed to vindicate the rights of the voters who voted in the past Senatorial election. When a state has elected a Democratic Senator (not to mention strong Democrat majorities in both houses of the state legislature), a Democrat Governor can ordinarily be trusted to make a temporary appointment in a manner that reflects the will of the voters in the earlier Senate election. A Republican governor cannot likewise be trusted. Of course, the exact same principle would apply in some other state if we flipped the words "Democrat" and "Republican" in this analysis. The point is to respect voters' wishes, whatever party they may belong to.

The Plan to Prevent Appointee Entrenchment – and the Problems that Plague It

To blunt the partisanship criticism, and to reduce any chance that a move to reauthorize appointment power will be seen an attempt to entrench a Democrat in the seat for years to come, some are talking about permitting Governor Patrick to make a temporary appointment, but denying him the power to appoint anyone who is running in the special election in January.

Unfortunately, such an attempt to diffuse partisanship would bump up against – and violate -- the terms of the Seventeenth Amendment. The Amendment's wording gives to state legislatures the power to decide whether to authorize gubernatorial appointments, and also the power to direct the rules surrounding replacement elections. But, pointedly, the text of the Seventeenth Amendment does not give the legislature the power to direct the rules surrounding the appointments.

The words of the Seventeenth Amendment create a bright-line rule giving the decision about whom to appoint to Governors—not state legislatures—in part because Governors (unlike any state legislator) are elected from precisely the same statewide electorate that elects the Senators themselves. The Seventeenth Amendment aimed to get state legislatures, which before 1913 were empowered by the Constitution to elect Senators, out of the business of handpicking Senators.

If a legislature can tell the Governor that s/he must appoint someone who is not an elective candidate (because incumbents have too many advantages), then why couldn't the legislature also tell the Governor that s/he must appoint someone who is not independently wealthy (since wealth, like incumbency, can create unfair advantage)? And so on, and so forth. Indeed, if a legislature can direct a Governor to pick his appointee from some subset of possible appointees, what stops the legislature from telling the Governor that he must pick a specific person favored by the legislature – the very result the Seventeenth Amendment seeks to deny?

Just as state legislatures cannot impose specific qualifications (such as lack of incumbency) on people who run for Senate (as the Supreme Court has made clear in its major term-limits case 15 years ago), neither can it impose qualifications on those who seek to be appointed.

Instead, it is up to the people themselves, or in the case of appointments, the people's constitutionally-designated proxy – the Governor – to decide whether any particular candidate has the right qualifications to effectively serve the interests of the voters. Maybe the person who is best to represent the people of Massachusetts in the Senate is someone who should start serving right now, and who will handily win election after election for decades to come. And maybe the people of the state and the Governor can all see that very clearly. The Constitution does not allow the legislature to foreclose that possibility.

In short, the Seventeenth Amendment allows the legislature, by declining to authorize appointments because an election is coming up very shortly, to say no to a governor, but not to say who.

Political Traditions as Effective Constraints

Importantly, though, this does not mean that there are no practically effective ways to prevent appointees from becoming entrenched (if one worries about that problem). A sensible state law could authorize appointments to occur only after the time deadline for election candidates to register has passed, so that the Governor will at least have information about who is planning to be a candidate. (Of course, people can later decide that they want to be write-in candidates.)

Also, a state law could contain a legally non-binding, but politically powerful, recommendation that the Governor ordinarily appoint only someone who has publicly promised not to run. Similarly, a Governor could announce such a rule on his own, and thus help develop a strong political tradition against appointee entrenchment.

That way, if an appointee nonetheless ran for the open seat, his/her faithlessness would be open for all the voters to see, and s/he would be elected only if s/he were truly an exceptionally popular candidate who deserved exceptional treatment. Oftentimes, political traditions favoring open democracy—such as the tradition of many states to hold popular elections for U.S. Senators, even before the Seventeenth Amendment so required—serve just as (if not more) effectively as formal legal attempts to guarantee such openness.

Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.