Doubts About Mitch McConnell’s Health Implicate Important Questions Under the Seventeenth Amendment

Posted in: Constitutional Law

With questions about the health of U.S. Senate minority leader Mitch McConnell (R-KY) swirling around the capital these days based on some of his recent awkward public appearances, attention has been focused on the statute in place in McConnell’s home state of Kentucky that deals with filling Senate vacancies. In 2021, at McConnell’s own suggestion, Kentucky made changes to the state law addressing how Senate vacancies are to be dealt with if one of Kentucky’s two U.S. senators leaves office before the end of his term. The law in place since 2021 tightly constrains appointment power by the state’s governor (currently a Democrat) and at the same time confers power upon the political party with which a Senator who has left office was affiliated. (Currently both of the U.S. senators—McConnell and Rand Paul—are Republicans.) Here is the relevant text of the Kentucky statute:

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 statute (which is similar, in the limitations it imposes on governors, to statutes in just a handful of other states), the governor is empowered (indeed, directed) to fill a U.S. Senate vacancy with a temporary appointee, who serves until an election of the people of the state is held, but the governor is required to pick from a list of names provided by political party chieftains.

Constraints like this may be perfectly legal for a state to impose with respect to gubernatorial appointments to state offices (although, in certain instances, First Amendment questions might be implicated), but appointments to the U.S. Senate must conform to the provisions of the federal Constitution—especially the Seventeenth Amendment, which explicitly addresses the topic of Senate openings. 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.

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

But can states empower governors to make temporary appointments and at the same time constrain the governors’ choices in making such appointments?

From one perspective, it would seem to make sense to require the governor to pick someone who is from the same political party to which the departed senator belonged; death or resignation should ordinarily not upset the partisan balance of the Senate and the partisan wishes of the voters who elected the senators. This intuition may be especially strong of late, when partisan tribalism has eclipsed nearly all other political identities. (In this regard, it is not surprising that most of the half dozen or so state laws that seek, like Kentucky’s does, to impose partisan constraints on gubernatorial appointment powers have been enacted in recent decades.)

Yet there is a very strong case to be made that the Seventeenth Amendment prevents Kentucky law from substantively limiting the governor’s choices in making a temporary appointment to the Senate.

The Kentucky Statute and the Text of the Seventeenth Amendment

Let us begin with some textual points. The Seventeenth Amendment’s language (unlike other parts of the Constitution that refer generically to state “legislatures”) pointedly differentiates between a state “legislature” and a state “executive” authority within a single amendment (indeed a single sentence) 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 each state’s chief executive; it does not authorize state lawmaking institutions other than governors 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 state statutes passed by a state’s lawmaking system cannot 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 discretion each state enjoys to pass laws to regulate 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 that state law can prescribe the process, much less the substance, of such a gubernatorial appointment—which strongly suggests that no such broad prescriptive powers exist.

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

This textual specificity—the mention of state legislatures’ power to pass laws and state executive branches’ appointment roles in a single provision—is one crucial way that the Seventeenth Amendment differs from Articles I and II of the Constitution, which refer to state “legislatures” in a much more generic fashion. In Moore v. Harper, the Supreme Court recently (and correctly) interpreted “legislature” in the context of Article I to refer not to a particular state organ or entity, but instead to a state’s entire system of lawmaking. So too, in the Seventeenth Amendment, “legislature” may be best read to refer to whatever system of lawmaking a state has chosen to use (even if that includes a gubernatorial veto and not just a bicameral multi-member legislative body.) But the Seventeenth Amendment’s pointed and intentional textual contrast between state “legislatures” (even defined broadly to mean lawmaking systems), on the one hand, and state “executive” authorities, on the other, suggests much more intentional specification of which kinds of organs within a state should be trusted for particular Senate-vacancy-filling decisions. While “legislature” in the Seventeenth Amendment may, as just noted, refer broadly (as in Article I and Article II) to each state’s lawmaking system generally (so that the reading I offer here is completely consistent with Moore), the reference to each state’s “executive” seems to refer not to a large, multi-member body elected on a district-by-district basis.

This reading makes particular sense given that legislatures (as part of lawmaking systems) are quintessentially involved in the passing of general and prospective laws and regulations, whereas executive branch leaders are typically the ones to make appointments of particular persons to particular offices. As the Court in Moore (and in prior cases) noted, the “precise constitutional significance of the word ‘Legislature’ [and, by extension, the significance of the word “executive”] depends on “the function to be performed” under the provision in question.

It is true that the Seventeenth Amendment does permit state law to simply decline to 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’s power to vest appointment authority in the President or a Cabinet Secretary certainly does not give Congress the power to generate a list of three names from which the President or Secretary can be forced to choose.

The textual upshot, then, is that while under the Seventeenth Amendment, state law can withhold from governors the power to make any temporary Senate appointments at all, once a state decides by law to authorize gubernatorial temporary appointments, the state cannot unduly constrain the governor’s exercise of that power.

How the History of the Seventeenth Amendment Undermines the Kentucky Statute

This textual argument, while forceful, might not carry the day were it not for powerful historical evidence behind it. In Moore v. Harper, for example, the argument that “legislature” in Article I refers to a “lawmaking system” rather than to a particular entity within state government was forceful in large part because the history leading into and shortly after the creation of the Constitution strongly supported that interpretation.

And with respect to the Seventeenth Amendment, prohibiting both state legislatures and political parties from imposing substantive constraints on governors in this realm also makes a great deal of historical sense, given that the overall goal of the Seventeenth Amendment was to get elected multi-member state lawmaking bodies—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 chambers. Those who pushed for direct election of U.S. senators often blamed partisan excess and party machinations for the 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 Albert Beveridge, speaking on behalf of one of the many constitutional proposals of what would become 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 gist of Kentucky’s law—that delegates to party chiefs the task of generating a short list—thus seems to run particularly counter to the historical anti-boss spirit of the direct-election drive culminating in the Seventeenth Amendment.

As noted earlier, some modern observers might 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. Importantly, governors—like U.S. senators, but unlike state legislatures—are elected in statewide contests that cannot be skewed by various kinds of common gerrymandering; it seems no coincidence that the state-government actor the Seventeenth Amendment selects to stand in for state-wide voters, to make a temporary appointment until those voters can weigh in, was himself chosen by the very same statewide electorate that chose the departing senator and that will choose the senator’s replacement.

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 legislative bodies; governors can lay claim to represent the people of a state better than do unelected party officials or even elected, but potentially 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).

Can Governors Be Required to Fill Senate Vacancies?

There is another way in which the Kentucky law (like the law in place in some other states) likely impermissibly constrains the governor. Not only does the Kentucky statute purport to limit the governor to three party-generated choices, 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 laws “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 state statutes.

Will Federal Courts Resolve These Questions?

Will any of these issues be litigated? Perhaps, but perhaps not. For starters, there has not yet been any vacancy in Kentucky, so any lawsuit over its law may be unripe until a vacancy exists or is imminent. And if and when a vacancy arises, it is possible that whoever is governor at that time will choose to make a temporary appointment that conforms to the preferences of the leaders of the party of the departed senator, whether or not state law so requires. The current Democratic governor, Andrew Beshear, is in a tight contest for reelection in about three months, and if a Republican were to be in the governor’s office when one of the two current Republican senators from the state were to step down, the issue could fizzle. (Certainly there is nothing unconstitutional about party leaders offering their input on filling a vacancy, and a governor would always be free to consider such input even if she, under my reading of the Constitution, cannot be required to follow party wishes.)

And even assuming a true and ripe dispute does arise (assume, e.g., that Beshear wins reelection, a vacancy arises, Beshear picks someone not on the Republican list, and Republicans sue), some federal courts might deem this kind of controversy to be a non-justiciable “political question” for the Senate itself to resolve by deciding whether or not to seat anyone Beshear appoints. I’m not sure such a decision by a federal court to stay out would be legally correct, but “political question” doctrine is notoriously squishy.

And even if a federal court were to entertain the case and invalidate the limitations placed on Beshear’s choice in whom to appoint, important questions of “severability” would be raised. If state lawmakers knew they could not constrain the governor in the way they have tried, would lawmakers have empowered the governor to fill vacancies at all? The fact that the pre-2021 statute in effect empowered the governor without imposing partisan limitations might suggest Kentuckians do not want to endure long vacancies (and the corresponding underrepresentation of the state in the Senate). But, given the tribal mentality that prevails today, it is also possible that the lawmakers in 2021 reaffirmed gubernatorial appointment power only on the condition that this power was limited by the desires of political party leaders.

The upshot: depending on what happens to McConnell’s health and to Beshear in November, Kentucky’s vacancy-filling law could be in the news much more than has been to date.

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