How Should Senator Kennedy's Seat Be Filled? Constitutional Considerations
	By VIKRAM DAVID AMAR
	Friday, August 28, 2009

In this column, I analyze various constitutional issues concerning the filling of Senate vacancies raised by Senator Edward Kennedy's death.

The Current State of Affairs

As things stand, Massachusetts will have only one vote in the Senate until an election is held early next year to fill the vacancy created by Edward Kennedy's passing. Under the terms of the U.S. Constitution – the Seventeenth Amendment, in particular -- state legislatures are permitted, but not required, to empower governors to fill Senate vacancies by appointment until a replacement election is held. All but a few state legislatures have accepted that invitation, and have given their governors temporary appointment power.

Massachusetts had been in the mainstream, and had authorized its governor to temporarily fill Senate vacancies, until 2004. In that year, the Massachusetts legislature withdrew gubernatorial replacement power, apparently because the Democrat-controlled legislature did not want to give Republican Governor Mitt Romney appointment authority in the event that Democrat Senator John Kerry left the Senate to become President in early 2005.

It is possible that the Massachusetts legislature will, when it reconvenes after Labor Day, re-amend the statute to reauthorize the governor (currently Democrat Deval Patrick) to fill the Kennedy vacancy before an election is held. Indeed, shortly before his death, Senator Kennedy wrote a letter imploring the Massachusetts legislature to do just that. Although state legislative leaders have not made clear their intentions, Governor Patrick announced this week that he would sign such a reauthorization law, should it come before him.

One Reform Option: Party-Consistency Statutes

Needless to say, it will look quite partisan (as it did in 2004) for the Massachusetts legislature to tinker back and forth with its state law, depending on the party identity of the Senators, the Governor, and the legislature itself.

One potential reform would be for each state to pass (as a few have tried to do) a law that would require the Governor, regardless of his or her own party, to appoint a person from the same political party as the departed Senator. However, as I have explained in an earlier column (and in much more depth in law review articles), this kind of statute runs afoul of the text, structure and history of the Seventeenth Amendment itself, which was designed primarily to get state legislatures out of the business of deciding the identity or the qualifications of the persons who should serve in the U.S. Senate.

Moreover, even laws that require Governors to maintain party consistency would themselves be subject to partisan gamesmanship, in that state legislatures would have incentives to go back and forth in passing and/or repealing party-consistency requirements depending on the party identity of the legislature and the incumbent Senators. Ultimately, then, these laws designed to ensure nonpartisan actions could be used as devices -- put in place and repealed – to serve partisan goals.

Another Reform Option: A Constitutional Amendment Ensuring Elections

Another possible reform, touted in a New York Times editorial earlier this week (one that was published less than 24 hours before Senator Kennedy passed away), would be a federal constitutional amendment doing away with gubernatorial appointment power altogether – in other words, a federal amendment constitutionalizing Massachusetts' current regime, which requires that all vacancies be filled by election only. Democratic Senator Russ Feingold has proposed just such an amendment, and the Times editorial endorsed it.

Putting aside the difficulties of amending the Constitution, and as attractive as elections are – and I fully agree that, ordinarily, there is no better a way to pick a Senator than a statewide election -- as I have explained in earlier writings and in testimony before Congress on this topic, there are huge problems with eliminating gubernatorial appointment power altogether.

Because elections take time, doing away with gubernatorial appointment power would guarantee that some states are deprived of equal representation in the Senate for non-trivial periods of time, during which important decisions will inevitably get made by Congress. Just think of how many crucial votes in the Senate have been held since President Obama took office; for a state to have had only one vote in the Senate during the last six or seven months would have been tremendously unfair to its people.

Delay may tend to hurt large states, in particular. It is anomalous enough that large and small states enjoy the same number of votes in the Senate, but for a large state to have half the representation of a small state during key periods in Congress is more troubling still. On top of that, because of the large amounts of money that candidates must raise to run statewide campaigns in large states, vacancy-filling elections may require more time in large states than in small states, making the vacancies longer in more populous states. And if sufficient time is not allocated, rich and famous candidates will have an unfair advantage.

The problem of vacancies lasting months is, of course, worsened substantially by the specter of terrorism in a post-9/11 world. As Professor Sandy Levinson has observed, "[u]nfortunately, it is not fanciful to imagine an attack on Washington that would kill dozens of senators." Without some mechanism for replacing senators quickly following a major disaster, a number of states or even parts of the country might lack any Senate representation at all, just when the country most needs a fully-functioning government. At a minimum, then, any constitutional amendment in this area should contain a provision (absent in the current proposal) providing a fallback mechanism that is triggered by some declaration of national emergency or some numerical threshold of Senate vacancy.

A Statute Could Effect Some Worthwhile and Relatively Rapid Reform

Fortunately, despite these constraints, there remain some quick and easy improvements to the current system that can still be made. Congress could, by statute, require that vacancy-filling elections take place within a specified time (say, five months from the date the vacancy arises) so that gubernatorial appointees do not fill seats for long periods. Indeed, a statutory proposal along those lines was floated in Congress in the spring.
Some people might worry that the gubernatorial appointees would still have a leg up – a quasi-incumbency advantage – in any subsequent vacancy-filling election. But according to Mathew Spalding from the Heritage Foundation, historical data shows that “since 1913, appointed Senators [and there have been a large number of them] have rarely stood for election and, [when] they did, have rarely been elected.”

Thus, as imperfect as the current regime is, a system in which states overwhelmingly choose to authorize governors to make temporary appointments (subject perhaps to an outer time-limit imposed by Congress on how long appointees can serve before an election is held) is probably the best we can reasonably expect to do.

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.