Constitutional Problems With the Kentucky Proposal (Supported by Mitch McConnell) to Change the Way U.S. Senate Vacancies Are Filled

Posted in: Constitutional Law

In Part One of this two-part discussion of Senate reform proposals, I shared some thoughts on the filibuster. In today’s installment, I take up another topic—how Senate vacancies should/can be filled. This second subject is particularly timely since at least one state—Kentucky—is considering changes in the way Senate replacements are made. Senate Minority Leader Mitch McConnell has indicated his support for a particular Kentucky state legislative proposal, which would reduce appointment power by the state’s governor (currently a Democrat) and increase power of the political parties with which the sitting senators are affiliated (currently the Republican party for both Kentucky senators). Here is the relevant text of the Kentucky proposal, Senate Bill 228:

The Governor shall fill vacancies in the office of United States Senator by appointment and the appointee shall serve until a successor has been elected and qualified under [subsections below.] The appointee shall be selected from a list of three (3) names submitted by the state executive committee of the same political party as the Senator who held the vacant seat to be filled, shall have been continuously registered as a member of that political party since December 31 of the preceding year, and shall be named within twenty-one (21) days from the date of the list submission.

Under this proposal (which is similar to the law in a small number of states), the governor is empowered (indeed, directed) by the legislature to fill a U.S. Senate vacancy until an election of the people of the state is held. The Seventeenth Amendment of the Constitution explicitly contemplates some authorization by a state legislature to a governor. This amendment provides, in crucial part:

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.

This language clearly empowers state legislatures to prescribe the procedures for replacement elections and also allows (but does not require) state legislatures to empower their governors to make temporary U.S. Senate appointments so that the vacancies are filled in the meantime.

But here’s the wrinkle: the Kentucky proposal (like the laws in a very small number of other states) limits the governor’s choice to one of three names submitted by the political party with which the departed senator was affiliated.

From one perspective, it would seem to make sense to limit the Governor to picking someone who is from the same political party from which the departed senator came; death or resignation should ordinarily not upset the partisan balance of the Senate and the partisan wishes of the voters who elected the senators. Yet there is a very strong case to be made that the Seventeenth Amendment prevents the Kentucky legislature from substantively constraining the governor’s choices in making a temporary appointment.

The Textual Argument Against the Kentucky Proposal

Let us begin with some textual points. The Seventeenth Amendment’s language (unlike other parts of the Constitution that refer to state legislatures) pointedly differentiates between a state “legislature” and a state “executive” authority within a single amendment, and allows a state legislature not to make or constrain any temporary appointments itself, but rather only to “empower the [state] executive to make [the] appointment.”

In other words, the Amendment, by its terms, creates potential appointment power only in governors; it does not authorize legislatures to participate in such appointment decisions, beyond simply determining whether the governors should be allowed to make temporary appointments or not.

This textual argument—that the legislature has no authority to limit the governor’s substantive choices to specific persons or kinds of persons—is reinforced by the last five words of Section 2 of the Seventeenth Amendment: “as the legislature may direct.” This clause refers to, and confirms, the legislature’s discretion as to the timing and procedures of any special popular election to be held to fill a vacancy. By contrast, the provisions concerning gubernatorial temporary appointment lack any similar language suggesting legislative discretion with respect to the process, let alone the substance, of such a gubernatorial appointment—which strongly suggests that the legislature does not have broad prescriptive powers here.

If the drafters and ratifiers of the Amendment had expected the state legislature to have a significant role in the governor’s execution of his appointment power with respect to temporary Senate appointments, the Amendment could very easily have included some phrase like “as the legislature has directed” or “subject to the legislature’s requirements” right after or before the clause referring to the governor’s statutorily created power to make appointments. Yet it does not.

It is true that the Amendment does permit state legislatures to simply not authorize gubernatorial temporary Senate appointments altogether. But the power to decide whether the governor should be able to appoint is not the same as, and does not subsume, the power to dictate who shall be appointed.

We can see this when we look at the Appointments Clause of the federal Constitution, in Article II. That Clause gives Congress the power to “vest” appointment of inferior federal officers in the President alone, or in Cabinet members. But Congress’ power to vest appointment authority in the President or a Cabinet Secretary does not give Congress the power to generate a list of three names from which the President or Secretary can be forced to choose.

Moreover, Congress should have more power in this regard than do state legislatures under the Seventeenth Amendment; Congress, after all, creates federal offices that are to be filled, whereas state legislatures do not create the United States Senate or any other federal institution.

The upshot, then, is that while state legislatures can deny governors the power to make temporary Senate appointments entirely, once they decide under the Amendment to authorize gubernatorial temporary appointments, they cannot unduly constrain governors’ exercise of that power.

The Historical/Structural Case Against the Kentucky Proposal

Disempowering the legislature and political parties to impose substantive constraints also makes a great deal of historical sense, given that the overall goal of the Seventeenth Amendment was to get state legislatures—and the party cronies who were thought to control state legislators—out of the business of deciding who should serve in the U.S. Senate. Indeed, if the history of the Seventeenth Amendment reveals anything, it is the distrust and skepticism Progressives had concerning the influence of political parties in the legislative process. Those who pushed for direct election of U.S. Senators often blamed partisan excess and party machinations for the legislative deadlocks in filling Senate vacancies. This vision of party secrecy and backroom party deals cut by a few persons, who could not be counted on to represent the public’s interest, was often described in terms of party machines or party “bosses.” As towering Senate historian George Haynes put it, “[s]ometimes the [S]enatorship was meekly handed over [by the legislature] to a state boss, whose phenomenal skill in the manipulation of legislators was out of all proportion to his hold upon the voters.”

In 1911, Indiana Senator Beveridge, speaking on behalf of one of the many constitutional proposals of what became the Seventeenth Amendment, voiced this assessment of party influence and distortion:

Political parties . . . elect a legislature, and [the] majority in that legislature is not supposed, nor even permitted, according to the original theory of the Constitution, to select the best man in the State . . . . It must select a man of the party which elected the legislature . . . . So it comes to pass that Senators actually have been . . . selected by the “party managers” . . . . The party boss has become more potent than the legislature, or even the people themselves, in selecting United States Senators in more than one State.

The part of Kentucky law that delegates to party chiefs the task of generating a short list seems to run quite counter to the historical anti-boss spirit of the direct election drive.

Some modern observers see virtues—in a world in which political parties are enduring and sometimes beneficial realities—to empowering party leadership to make replacement decisions, because such schemes may preserve important partisan balances, and because party leaders can ensure that whoever fills a vacancy is a bona fide party member, rather than a nominal one. Yet party leaders are also often much more extreme and partisan than the median party member in a state, and they are certainly more extreme and partisan than the median state voter. Party leaders of one party in a state are thus poor surrogates for the voting public.

Some might also argue that governors today are essentially party bosses, whether we call them that or not. But this misses the point that governors (unlike Party central committees) are elected—by the very people of the state in whom the Seventeenth Amendment vests ultimate power to select U.S. Senators. And governors—like U.S. Senators, but unlike state legislatures—are elected in statewide contests that cannot be skewed by various kinds of common gerrymandering. Thus, there was, and is still today, a good reason for the Seventeenth Amendment’s textual preference for governors over state party officials and state legislators; governors can lay claim to represent the people of a state better than do unelected party officials or even elected, but malapportioned, legislatures in this context because governors are elected the exact same way in which the Seventeenth Amendment requires senators to be picked. In short, my proffered reading of the Seventeenth Amendment’s text seeks to harmonize its provisions regarding temporary vacancy (the exceptional circumstance) with its provisions concerning regular popular elections every six years (the ordinary rule).

The Interest in Promptly Filling Senate Vacancies (Which Is Even More Pressing Today) Argues Against Allowing a Legislature to Constrain the Governor’s Choices

The framers of the Seventeenth Amendment wanted to reduce stalemates and other glitches that resulted in long-term Senate vacancies. Indeed, persistent vacancies that injured both the underrepresented states and the Senate’s ability to easily transact business were among the most persistent complaints concerning the broken state legislative selection process replaced by the Seventeenth Amendment. Thus, facilitating prompt Senate replacements was one of the principal objectives of reform. It is true, of course, that state legislatures ordinarily would not want their states to be underrepresented in the Senate for long, which is why, after the Seventeenth Amendment was enacted, almost every state has empowered its governor, on some terms or another, to make temporary appointments even before replacement elections can be promptly held.

But (as explained below) since governors under the terms of the Seventeenth Amendment can’t be forced, rather only empowered, to fill vacancies by temporary appointment, a reading of the Amendment that guarantees gubernatorial discretion in personnel choice is the one most likely to result in the prompt filling of vacancies. By contrast, a reading that allows state legislatures to constrain governors (perhaps to the point that governors might not exercise the powers that are given to them if they don’t like the constraints) could increase the likelihood that vacancies go unfilled during the period before the election is held.

Can Governors Be Forced to Make Senate Appointments?

There is another way in which the Kentucky proposal likely impermissibly constrains the governor, as well. Not only does the proposal purport to limit the governor to three party-generated choices, but it also purports to require him to make an appointment, by its use of the word “shall” and the specification of a deadline by which an appointment “shall” be made.

But this, too, seems problematic, under a careful reading of Section 2 of the Seventeenth Amendment. That provision says state legislatures “may empower” (emphasis added) governors to make temporary appointments, until the people fill the vacancies by election. “Empower” does not mean “require”; rather, it means “to create the power to do or not do something.” The Constitution generally distinguishes between powers and duties, and the Seventeenth Amendment’s words seem to speak only to possible gubernatorial powers, not any gubernatorial duties.

Thus, it is not at all clear that governors must exercise temporary appointment authority, even when that authority is validly created by the legislature.

If and when the Kentucky bill is enacted, the arguments I advance above should be raised. (Indeed, they should be raised now, within the legislative deliberations, but I don’t know that this will happen.) It would probably be best for these arguments to be advanced in a court case, but such a case would not be ripe until the law passes and perhaps until a vacancy in the seats of one of the Kentucky senators is imminent. And an imminent vacancy places tremendous time constraints on any court considering a challenge to statutory process.

Another possibility is for a governor to disregard the statutory limitations and appoint someone other than the three people given by the relevant state party executive committee. Then someone would likely sue to challenge the appointment itself. Such a case, while ripe, would raise important questions of severability as well—if the legislature cannot constrain the governor in the way it has tried, would it empower the governor to fill the vacancy at all? Another question in any court case (assuming it were brought in federal court) is whether these disputes might be viewed as non-justiciable “political questions” that are to be resolved by the elected branches of government.

This final possibility reminds us, as we are seeing in the House of Representatives right now, that each house of Congress is, under Article I, section 5, empowered as the “Judge of the Elections, Returns and Qualifications of its own Members.” That applies to the U.S. Senate as well. Perhaps this power extends to assessing not just which election results are valid, but also which temporary gubernatorial appointments to the Senate are valid as well.

Many important questions loom in this whole area; it would be nice if the actors making decisions would be aware of and attentive to them.

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