Senate vacancies leave seats open for power grab

Tuesday, September 1, 2009 | 11:16 a.m. CDT; updated 3:34 p.m. CDT, Wednesday, September 2, 2009

The passing of Senator Ted Kennedy has again raised the issue of the procedure in which vacated Senate seats be filled. The majority of the states, 46 to be exact, empower their governor to enact a temporary appointment to last until the winner of the next election is certified. The states of Oregon, Wisconsin, Oklahoma and Massachusetts require the vacancies be filled by special election.

Historically, before 1913's ratification of the 17th Amendment, senators were elected by state legislatures. Continued and lengthy Senate vacancies, the result of political infighting, disorganization and bribery/intimidation, inspired a popular movement for direct election of senators. The amendment's language mandates special elections to fill midterm vacancies due to incumbent resignation, death or other causes and also provides that legislatures may empower the chief executive "to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”

On the face of it, this appears a simple, cut and dried procedure to effect an orderly transition of legislative representation. The 17th Amendment provides that an election be held to fill the seat but, in respect for the 10th Amendment, permits individual states to determine the value of a temporary appointee versus that of a duly elected solon.

Unfortunately, when dealing with issues of political interest in general and to the U.S. Senate in particular, there almost always exists the square peg in the round hole resistance factor. The Senate holds all the cards in determining who can be seated, even if the newly elected person does not meet the requirements set forth in the Constitution. Five senators have been elected who did not meet the eligibility standard of 30 years of age – the last two, Rush D. Holt Sr. (1934) and Joe Biden (1972), were sworn in after reaching the requisite age.

More unsettling to those who value following the law is the blatant disregard of the state residence requirement at time of election at least three times in the last 50-plus years. Nonresident “carpetbaggers” Robert Kennedy (1964) and Hillary Clinton (2000) were elected to represent New York while Alan Keyes (2004) was unsuccessful as the Republican Party’s candidate for the seat won by Barack Obama. While the U. S. Senate may find this charade meets its standards of legality, the notion that one may establish residence merely by rent or purchase of property to run for office is hardly in keeping with the spirit or intent of the Constitution.

As one might reasonably expect, the political angst occurs when the governor of one of those states so empowered to appoint a temporary senator appoints one of a different party than that of the senator vacating the seat. The party not in the seat of power can be expected to employ a full gamut of imaginative ploys to continue to hold the office, including appealing to the other side’s sense of fairness (a futile gesture) or amending the state’s established procedure – an action being considered by Massachusetts.

The amusing irony of the pickle Massachusetts finds itself in today is that the difficulty is self-inflicted, created by its partisan legislature five years ago. Prior to 2004, the Bay State’s governor was empowered to name a temporary successor; however, assuming Sen. Kerry would win the presidency, the very perception that Republican Gov. Mitt Romney name his replacement was unthinkable. Bringing to bear its veto-proof Democratic majority, the legislature amended the process to require a special election to take place within five months of the vacancy.

With a Democrat now in office and the shoe on the other foot, there is a movement to reverse the process again, enabling Gov. Patrick to name a horse holder for the seat, thus sparing the state’s citizens the anguish of having but one senator to represent them. But, there is said to be strong resistance to tampering with the 2004 statute inasmuch as the majority party is somewhat apprehensive over yet another self-serving engineering feat for its political benefit.

There is much at stake here, accelerated filling of that seat being indispensable to the administration’s retention of a veto-proof majority in the U. S. Senate. It will be interesting to see whether the Massachusetts legislature will be able to resist the pressure to fill the Kennedy seat as a tribute to his beloved health care legislation and avoid the appearance of a blatant power grab – which, by any other name IS a power grab.

As a matter of collateral interest, Wisconsin Sen. Russ Feingold has promised to propose a constitutional amendment requiring Senate vacancies be filled by special election as is the rule in the House of Representatives. I don’t foresee this proposal gaining much traction as there is virtually no interest among the states in surrendering yet more of their authoritative powers to that of the federal government.

The governing style of the Obama administration has resulted in increased interest in the 10th Amendment, creating a dialogue that is good for our constitutional republic.

J. Karl Miller retired as a colonel in the Marine Corps. He is a Columbia resident and can be reached via e-mail at

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