17th Amendment Musings

Mitch McConnell seemed to have some sort of medical moment recently and it brought to mind once more the concerns about people staying around too long.  The clear example lately continues to be Dianne Feinstein. 

Sen. Feinstein is a frail ninety (these days a lively ninety is quite possible and there are multiple celebrities that can be cited).  Her colleague Chuck Grassley is not much younger but seems much less frail.  Feinstein was wrong to run for re-election and has been slipping for years.  She could have ended her service in her mid-80s. Not exactly a bad run.  

She is due to leave in January 2025.  That is too long.  And, no, Republicans won't block her replacement.  What they did was refuse to allow a rule change when she was out sick.  A Republican senator already resigned and was replaced. The replacement got committee assignments and so forth.  For now, we have to grin and bear it.  

We also have talk about Biden being too old.  But, like other politicians his age (Nancy Pelosi is older), Biden appears to be doing a good job.  Given my druthers, I rather someone younger.  We don't live in such a fantasy world.  He is the best choice and is doing a great job as president.

Back to Mitch.  McConnell was out for some time recently after a fall or something, and the news accounts after his "moment" here flagged some evidence he is slipping.  I don't know how bad it is.  He seems okay.  But, the immediate reason for this post is a Kentucky rule in place if he happened to resign.  Recall, Kentucky has a Democratic governor.

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.

A piece discusses this provision and questions its constitutionality.  First off, as a policy matter, I am inclined to support it.  The people voted for a certain senator with the assumption that they were voting for a member of a certain party.  It is a relatively rare case that the person is so special that other factors dominate.  A John McCain is a special case, for instance, but even there, people were still voting for a Republican.  

It seems to me that a temporary replacement should reasonably be of the same political party.  The essay notes the 17th Amendment was ratified in part with suspicion of power brokers.  Okay.  But, it also was ratified with the sentiment that the people -- not the state legislature -- should choose.  Yes, the governor is voted in by the people.  The original senator was as well.  They expect certain things for six years when they vote for the person.  A member of a certain party to me is one such thing.

When a member of the House of Representatives no longer can serve (resignation or death), there is no mechanism in place for a temporary appointment.  A special election "shall" be called.  (See, one of those Art. I. provisions often forgotten about.)  The term is two years over the six years of the Senate, so there is a less great effect if there is a vacancy until the next regular election.  

The Seventeenth Amendment requires ("shall") an election to fill in a vacancy while also leaving an additional option:

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.

Is the Kentucky option (that now helps Republicans but in some other cases can help Democrats) a violation of its terms?  I don't think so.  

First, my overall interpretative sentiment is that in political matters, the people should have overall discretion to choose their leaders unless the rules clearly block them.  I felt this way when people tried to argue Ted Cruz is not really a natural born citizen, using technical arguments that to me are not compelled by the text of the Constitution.  I find the guy a total asshole.  But, he was a citizen at birth in my book, a natural born citizen being a rule to run for president.  The same applies here.

The Kentucky legislation empowers (gives authority) the governor to make a temporary appointment.  The essay argues the term gives the governor discretion not to choose (note the lack of "shall").  So, the "shall" in the law is dubious.  Eh.   First, what happens if the governor does not act?  Is there practicable any means to force him?  If inaction meant a default selection, that would be problematic.  But, I don't see that as happening here.

Second, that is a nuanced view of "empower" that to me is not compelled by the usage of the word.  You can empower someone in various respects, including giving them authority that they are under an obligation to use.  We can debate reasonableness but it is far from clear to me and that to me leads me to at the very least oppose judicial nullification of the rule.

Okay, the amendment says the legislature can empower the governor to make a selection.  Does limiting their discretion violate the terms?  I do not think so.  I think the amendment leaves open various means to empower the governor.  The governor here also still has some discretion.  

Again, if the choice is a fait accompli, it would be a problem. The law could not simply say that the party gets to make the choice.  But, the party is not making the choice.  The logic of the complaint suggests the shortlist is not the only issue. Even saying the person has to be of the same party would be problematic.  It would arguably take power away from the people's choice (though a governor need not be) to choose the best person. 

The governor here is making the final choice.  The literal text is being followed.  The legislature is giving authority to the governor to make the final choice.  A choice that is limited but when we give people the power to make choices, that is often the case.  For instance, the president has power to nominate, but sometimes there are limits on who they can nominate. 

I think this is a somewhat interesting question but the text is at the very least not clearly being violated.  The core concern of the Seventeenth Amendment is to give the people the right to elect senators. The replacement limitations here reflect the spirit of honoring their choice.  

The temporary replacement rule is not something just made up when the amendment was ratified.  It was in the original Constitution when a vacancy took place during the recess of the legislature, the body which then selected senators.  The 17th Amendment rule provides the legislature a bit more discretion (the original was not optional), but if anything, that can help the cause here by emphasizing the value of legislature discretion.

I think constitutional procedure rules should be political questions except in clear cases.  Discussing the nuances can be interesting but also people can start to be a bit too sure their far from compelled arguments are compelling.  In this case, I think the rules are both good policy and meet constitutional guidelines.