How The Aftermath of Senator Byrd's Passing Offers Constitutional Lessons About the Senate and the Processes Used to Fill Senate Vacancies
	By VIKRAM DAVID AMAR
	Friday, July 16, 2010

There are many reasons why the Senate has not yet acted to extend long-term unemployment benefits for the millions of Americans who desperately rely on the moderate amount of money these benefits provide while jobs remain scarce. One reason may be the good-faith (but in my view totally misguided) belief by some Senate Republicans that the need to reduce the federal deficit immediately, combined with the desire to eliminate any disincentives to work, outweighs the stimulative and equitable effects of extending the benefits.

A second reason is the unwillingness of the Democratic majority in the Senate to do away with the filibuster device that gives a minority of 41 Senators a block on legislation. Getting rid of the filibuster is an option that -- as I've written in a prior FindLaw column -- a simple majority could pursue if it wanted.

And a third (and related) reason for the Senate's inaction is the death three weeks ago of Democratic Senator Robert Byrd from West Virginia. In this column, I focus on Byrd's death, and identify some of the underappreciated constitutional lessons about the Senate we can learn from Senator Byrd's passing.

The New Status Quo After Byrd

Elected to the Senate for the ninth time in 2006, the 92-year-old Byrd died on June 28, after experiencing serious medical issues that required multiple hospitalizations over the last few years. (Indeed, since 2008, there have been dramatic moments when an obviously infirm Byrd was wheeled into the Senate to cast key votes on pieces of the President's legislative agenda.) Byrd's death leaves the Democrats in the Senate, for the time being, with one fewer vote than they had last month in their quest to reach the magic, filibuster-proof, number of 60. As a result, measures like unemployment-benefits extension (and perhaps final adoption of financial-regulation reform) await the arrival of Byrd's successor.

Under the Seventeenth Amendment of the Constitution and West Virginia law, the Governor of that state, Democrat Joe Manchin III, is empowered to appoint a temporary replacement for Byrd; the replacement will serve until an election is held in which the voters can fill the seat. Manchin has taken some time to sort things out -- in part, he has said, because he didn't know for sure when the election to fill Byrd's seat would be held. If it were held this fall, in 2010, the person elected would fill the remainder of Byrd's term until through the end of 2012. If no election were held until 2012, the person then elected would serve a normal 6-year term.

Complicating matters further is the fact that Manchin -- although he has said he won't appoint himself to the Senate seat (and I think there is some constitutional question whether he could appoint himself) -- may very well run in the election that is held, especially if it is a special election held this fall. Manchin asked for clarification from his state Attorney General as to when an election is called for under West Virginia law, and he has now received an opinion saying that the special vacancy-filling election can be held this November. Having obtained this requested clarification (which took some time to generate), Manchin has announced he will act quickly (perhaps in the next few days) to fill the vacancy to enable West Virginia to have two Senators for the rest of the year.

The First Lesson of These Events: Temporary Gubernatorial Appointments Should Be Utilized, and Made Quickly

I see a number of related lessons that we can glean from the events since Byrd's death. First, especially given the extremely divided nature of the Senate today, the persistent (indeed, unprecedented) use of the filibuster device by the minority party, and the super-slim vote margins in the Senate on many crucial matters of public policy (e.g., health care, financial regulatory reform, stimulus bills, etc.), it is imperative that states make use of the Seventeenth Amendment's option of temporary gubernatorial appointment to fill Senate vacancies.

To be sure, elections are always the best way, in an ideal world, to pick Senators. But in the real world elections take time, and every state needs two Senate votes every day that the Senate is in session. For this compelling reason, temporary appointments, combined with prompt special or regularly-scheduled elections, are definitely the way to go.

As I have discussed in earlier columns such as this one, Senator Russell Feingold (D-Wis.) has been advocating a constitutional amendment that would alter the Seventeenth Amendment to eliminate gubernatorial appointment power altogether and require elections to fill all Senate vacancies. As well-intentioned as the measure is, it is terrible policy -- and its shortcomings are made ever more clear by episodes like Byrd's passing and the need for a prompt replacement to join the Senate in a matter of days or weeks, not months.

The Second Lesson: Everyone Benefits When the Law Is Clear -- And It Should Be Clarified

A second lesson arising from Byrd's passing is that uncertainty about West Virginia election law (or that of any other state) serves no good. We hear a lot today from private-sector leaders and the National Chamber of Commerce quick to criticize the Obama Administration over the damage they say is being visited upon Corporate America by the uncertainty about the precise scope and content of the important regulations that federal agencies will be drafting and adopting in the next few years on momentous matters like health care and financial regulation. But if uncertainty is the enemy of business, it is also the enemy of democracy.

There is no reason why West Virginia and other states cannot write their election codes clearly enough that it is obvious when special vacancy-filling elections are to be held. And the delay -- of even a few weeks -- that is created by the Governor's need to get formal clarification from the Attorney General as to whether the election could take place this fall is simply one we cannot afford in this day and age.

The Third Lesson: Vacancy-Filling Is an Inherently Political Process; We Need to Accept that and Take It Into Account

A third lesson to take is that politics are an inherent part of the vacancy-filling process. West Virginia Governor Manchin is undoubtedly going to take his own desire to run for the Senate seat this fall into account in deciding upon whom to appoint in the meantime. He surely wants someone who will represent West Virginia well and cast good votes in the coming months, but he also doesn't want someone who will, or can, defeat him come November. There is simply no way to prevent these kind of personal, partisan factors from influencing the process.

But rather than lament the role of politics in filling vacancies, Senators and their parties should think more carefully about how to use the process to their advantage. Everyone knows the filibuster is being deployed with increased frequency these days. Everyone also knows the votes that have been held in the Senate over the past few years have often come down to just a few persons. And everyone knew last year that Robert Byrd was in his early 90s and had been experiencing non-trivial health problems during the preceding months. Under those circumstances, might it not have been a good idea for Byrd to resign before he died? Such a resignation would have given Byrd, and the party to which he devoted most of his life, more control over the process of replacing him.

A Health-Based Resignation By Byrd Would Have Eased the Process of Succession

If Byrd, once he started experiencing health problems, had signaled his intent to resign, the Governor of West Virginia could at once have begun to identify and talk to suitable temporary appointments. The entire process could have gone much more smoothly if all the players had a bit of advance notice.

Indeed, in order to provide as seamless a transfer of power as possible and reduce the length of time during which West Virginia would have only one Senate vote, Byrd could (and should?) have done what Senator Mel Martinez (R - Fla.) apparently did in 2009 -- announce that he was stepping down from the Senate, "effective on a successor taking office to fill out the remainder of my term." Although Martinez was stepping down for personal reasons and not because his health raised questions about his ability to serve out his term, his resignation statement may be helpful precedent. (Some may contend that Martinez's wording "taking office" creates problems because then, technically for one nano-second, there are two persons filling one Senate seat. To obviate any such problem, the language could be tweaked to say "effective on a successor being (s)elected to fill out the remainder of my term.")

In most American electoral schemes, neither political party nor any incumbent can control the timing and other specifics of an election. Contrast that with some parliamentarian systems, in which the majority party often gets to decide when to schedule elections. Having the power to decide when an election will take place, and to have an incumbent or a semi-incumbent in the race, is big. So if -- given what West Virginia law says about special-vacancy filling elections -- Byrd and the Democrats could have seen that an earlier resignation would have allowed for a temporary appointment and a special election on terms that favored the Democratic party, such a route might have been very attractive.

Sometimes, for example, having the temporary appointee in the Senate for a longer time may serve the party's interests if that person is herself going to run in the next election (be it a special election or a regularly-scheduled one); even in today's anti-Washington world, there is still some advantage to incumbency or quasi-incumbency.

Importantly, the vacancy in the Byrd episode was being created because of legitimate health issues that created serious doubts about the ability of Byrd to serve out his term -- as opposed to fabricated pretext or political manipulation per se. Under such conditions, there is nothing in the text or spirit of the Seventeenth Amendment that prevents outgoing Senators from trying to facilitate a smooth and party-friendly transition when they depart.

A Problem Destined to Repeat Itself: Why Senators Who Are Seriously Ill May Want to Consider If Resignation Is In the Public Interest

Nor was the Byrd situation an isolated instance in the modern Senate; we are likely to see the same dynamic occur again. Many of the same points I have made about Byrd's passing, could have been made about Senator Edward Kennedy's. Had he resigned once it was clear he would die pretty soon and was rather unlikely to live long enough to finish out his term, an election in Massachusetts to replace him might have occurred earlier in Obama's Presidency, at a time when the Democrats could have been more assured of their ability to keep that Senate seat.

Let me be clear: I am not trying to speak ill of the dead, but I think both Senator Byrd and Senator Kennedy themselves would have appreciated any insight that might have helped them better serve their states, their chamber, and their party. That is, after all, what great statesmen try 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.