Federalism Attacked Via Senate Vacancies
By Marion Edwyn Harrison, Esq.
February 10, 2009
Scandal and confusion often breed unrelated consequences. Newspapers and magazines, as well as TV and radio commentary, of varied political slant, recently are advocating a mandatory requirement of popular election to fill a U.S. Senate vacancy.
It superficially sounds so democratic or populist, as though belatedly correcting some right the electorate through history has been deprived. The scandal, of course, is the Blagojevich fiasco in Illinois, wherein the (now dethroned) governor allegedly attempted to sell the unexpired Senate term of President Obama.
For lack of precisely applicable – or possibly insulting – nouns, we’ll term the Delaware, New York and New Hampshire vacancy situations as merely confusion.
In Delaware it is widely rumored that the governor’s appointment to fill the vacancy left by the departing Sen. Joseph Robinette Biden, Jr. is merely a gimmick to hold the seat open for the Vice President’s son, Joseph Robinette Biden III. “Beau” Biden, as the son is popularly known, is widely expected to run for his father’s Senate seat for a full term after he returns from National Guard duty in Iraq.
In New York the media had one of its field days reporting and commenting upon the desire of Mrs. Edwin Schlossberg, more dramatically known as Caroline Kennedy, for appointment to fill the seat vacated by Senator, now Secretary of State, Hillary Rodham Clinton. The consensus was rather dramatic that the lady was short on political charisma – that is, relevant knowledge; and popularity polls rated her low.
In New Hampshire there was yet another variance. GOP Sen. Judd Gregg, who is favored but not considered safe for re-election in 2010, resigned to accept appointment to the Obama Cabinet. The New Hampshire governor, a second term Democrat, appointed a Republican who agreed not to seek election next year. The deal opens the possibility of a full six-year Senate term to a Democratic Representative who has already manifested an interest in running. In addition, it preserves the Republican blocking of another Democratic attempt to attain the magically dominant 60 Senatorial seats.
The Colorado appointment to succeed Democrat Sen. Ken Salazar, also off to the Obama Cabinet, qualifies neither as scandalous nor confusing.
Scandal, confusion or neither, that is not the point. The Constitution is clear. Amendment XVII, ratified April 8, 1913, pertinently provides:
“ . . . When vacancies [occur] . . ., 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 . . .”
Thus, each state of the union by popular vote may elect for the balance of the term or the governor may appoint for that balance or for a portion thereof, as state law provides. At present in three states a special election is required; in some the governor appoints for a statutorily prescribed portion of the unexpired term and then there is an election; in the others the governor appoints for the full unexpired term.
There is no reason for uniformity. There is no cause for any kind of federal intervention – which, in any event, would be unconstitutional. Not surprisingly, those forces which seek further to enfeeble federalism by appropriating more authority and control to the federal government see this as yet another opportunity.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.