Balkinization: More on our zany constitution

More on our zany constitution

Sandy Levinson

A late breaking development:

WASHINGTON (AP) -- Democratic Sen. Tim Johnson of South Dakota suffered a possible stroke Wednesday and was taken to a hospital, his office said.

If he should be unable to continue to serve, it could halt the scheduled Democratic takeover of the Senate. Democrats won a 51-49 majority in the November election. South Dakota's governor, who would appoint any temporary replacement, is a Republican.

"Senator Tim Johnson was taken to George Washington University Hospital this afternoon suffering from a possible stroke," read a statement from his Senate office. "At this stage, he is undergoing a comprehensive evaluation by the stroke team."

Johnson had become disoriented during a call with reporters, stuttering in response to a question. He appeared to recover, asking if there were any additional questions and then signing off.

If the two-term senator, 59, is unable to serve when the 110th Congress convenes Jan. 4, South Dakota Gov. Mike Rounds would appoint a replacement.

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Two comments: First, there is no provision for a "temporary replacement." The text refers to "vacancies" in the Senate, and that has been interpreted, I'm quite confident, as death. To be disabled is not to create a "vacancy," save metaphorically. I discuss in my book the dysfunctionality of the Constitution with regard to a catastrophic attack that results in many disabled senators and members of the House. Dead senators are no problem. The Seventeenth Amendment allows immediate replacement by guberrnatorial appointment. Disabled senators are a distinct problem, espeically when combined with quorum rules that require a majority of members in order to do business. The American Enterprise Institute and the Brookings Institution have collaborated on a project designed to address the issue and have proposed a constitutional amendment, co-sponsored by Texas Republican John Cornyn and Wisconsin Democrat Russ Feingold (among others). (I testified in favor of the amendment and praised Sen. Cornyn for his leadership on this issue.) Republican James Sensenbrenner refused to hold hearings at the House Judiciary Committee because he believes that every representative should be elected and therefore opposes the proposal that would allow governors to name replacements after catastrophic attack. In any event, so long as Johnson is alive, he remains the Senator from South Dakota and the Democrats will have a 50-49 majority of those present and voting in early January. This means that under no circumstances, whatever the seriousness of his condition, should he be viewed as "resigning" his seat, given the political realities of the situation. Recall that Woodrow Wilson hung on to the presidency when he was patently inequipped to continue serving as President (a defect that arguably was cured by the 25th Amendment, though the failure of the Reaganites to invoke it after it became clear to insiders that he had Alzheimer's is not encouraging).

One problem with both the 17th Amendment and the 25th Amendment, incidentally, is that neither takes account of the reality of political party. One might believe we were back in 1787, with the Framer's disregard (and, of course, disdain) for that reality. It would be absolutely dreadful, for example, if an incapicated president (assuming no vice president) were succeeded by a Speaker of the House of the other party--a good reason for repealing the present Succession in Office Act--just as it is at least questionable whether a governor should be able to change the control of the Senate by naming a successor from a different political party than the elected senator.

2. So the second comment is asking whether it is "fair" that a Democratic Senator be replaced by a Republican simply because the Governor is a Republican? I ask this as a genuine, and not contentious, question. When Strom Thurmond appeared to be on the brink of death, there were proposals that the Democratic governor of South Carolina be forced to name a Republican successor. I suppose one can say that the death of a senator is a random process and that the risks of a change of party are borne equally. But here is a perfect illustration of the power of a small state to turn the results of the national election topsy-turvy because of what may be the unwise provisions of the 17th Amendment with regard to filling "vacancies." I assume that Sen. Johnson's Republican successor, if it comes to that, could serve only until the next election, in 2008. Query: Could Congress mandate an election "no later than 60 days after the death of a senator"?

You will be glad to know that I don't think that a constitutional convention is necessary to cure these potential problems. But do those of you who seem adamantly against the possibility of any constitutional amendment, at least at this time, defend the disconnect between the 17th and 25th Amendments, on the one hand, with the reality of political party, on the other?

Posted 4:41 PM by Sandy Levinson [link]

Comments:

There is nothing fair or unfair about an elected governor appointing a senator to finish the term of an incapacitated or dead predecessor. This has gone both ways over the years.

If you propose an interim election, then offer an amendment.

# posted by

Bart DePalma : 5:19 PM

Why would I want to defend the 17th amendment? I think it was a hideous mistake, which destroyed one of the fundamental checks on federal power, and directly led to the cancerous growth of that power as seen in the "New Deal".

"espeically when combined with quorum rules that require a majority of members in order to do business."

# posted by

Brett : 5:32 PM

Sandy: The 17th Amendment gives the South Dakota legislature, not the Congress, the power to provide for an election to fill the vacancy (with gubernatorial appointment in the interim). Currently, South Dakota law (SDCL 12-11-5) provides that "[t]he special election to fill the vacancy of a senator shall be held at the same time as the next general election" (which in South Dakota is, I believe, November 2008).

The South Dakota legislature could, of course, amend S.D. law to call for an immediate election -- but my recollection is that both houses of that legislature are controlled by overwhelming Republican majorities, so it's not likely.

Our (potential) bad luck, in other words, is a function of the fact that Tim Johnson hails from a state in which Republicans control *both* the executive and legislative branches of the state.

Let's hope that Johnson quickly recovers.

# posted by

Marty Lederman : 5:48 PM

Brett again looks at the 17A in a vacuum, esp. in respect to the New Deal, as if the New Deal was not a result of many factors, not in any way predominately a result of the 17A. In fact, a popular movement that made the 17A but one of many of its goals.

To the degree one fears national power, I really don't understand how, e.g., the creation of independent agencies would have came about differently. In fact, the origins of our said mega-state were beginning before the 17A came to pass -- harkening back to the Civil War.

When the 17A was passed, some states already had begun on the path of letting the people select senators. Senators, though often instructed, were independent agents when they voted, not constitutionally "controlled" by state legislatures except to the degree of fearing not being appointed again (and many did not have long stints in power anyway).

Senators still represent their states and the net result is a conservative trend that Sandy Levinson finds troubling, conservative in that a minority of states can delay changes a majority wants. Again, I wonder, how exactly the alphabet agencies would be so much weaker if states appointed senators. Or, the executive power some here are upset about.

As to the power of individual states, I'm not sure how one can avoid this. If we have a relatively small upper house, in a relatively evenly divided nation, there always is a chance that something like this is going to happen. The same can happen in a statehouse really -- someone dies. The balance of power shifts because of one little country.

The 17A also is fair as to filling vacancies. An election is called for but the legislature of the state (democratic move) can allow the executive to put in a temporary vacancy.

As to dealing with unfit members, health-wise, it would appear that the Senate (though here there would be a reason for them politically to avoid doing so) has the power to expel said member. Art. I, sec. 5.

I'm not sure we need a 25A mechanicism given this opening. There will likely still be a healthy senator representing the state (plus the representatives) and some senators would surely do the proper thing and resign.

# posted by

Joe : 7:13 PM

Libertarians like Brett never tire of saying the government cannot legislate away unwelcome social and economic realities. Neither can constitutions legislate away realities unwelcome to libertarians.

Long before the New Deal or even the 17th Amendment, trends were at work weakening the distinctions between states and the importance of state boundaries. Large corporations spanning multiple states, improvements in transportation and communications technology that lessened the importance of distances, increased geographic mobility, mass media creating a nation-wide culture -- all these are centralizing trends. They create the pressure and need for a more centralized government.

Post Civil War court decisions were already an anachronism, trying to maintain an 18th century government with 19th century technology and economy. Trying to govern a 21st century country with an 18th century government would be more anachronistic still.

# posted by

Essayist-Laywer : 8:07 PM

KC in DC,

That pretty much settles the problem, doesn't it!

Prof. Levinson, these arguments for a constitutional revolution remind me a bit of a chain-smoking obese 5-times-weekly McD's customer making plans for his life as a vegetarian marathoner. Why not, first, quit smoking? Then improve the diet, then start jogging, etc. There are no shortcuts to a decent society, constitutional or otherwise. Would you be willing to apply your admirable talent to getting laws like KC's passed?

# posted by

Anonymous : 3:05 AM

* The Wyoming law noted by kcindc means that Governor Freudenthal (D) would appoint an (R) in the event of a vacancy of Senator Thomas's (R) seat.

* SDCL 12-11-6 says there wouldn't be any special election in the event of a vacancy of Senator Johnson's seat. The election in 2008 would be a regular primary and a regular general election.

* If the Senate is 50-50 again, presumably there would be something like 2001's power-sharing agreement.

* Should Mundt have been expelled or forced to resign?

# posted by

Ben : 8:58 AM

I very much appreciate KCinDC's illuminating posting and information. I agree that no constitutional amendment at all is needed, IF such sensible legislation is passed in all states. But the fact that a few states recognize the reality of party leaves "unprotected." I assume, for example, that if anything happened to Senators Boxer or Feinstein, that Gov. Schwarenegger would name a Republican successor. (Of course, Ed Rendell could name a Democrat to succeed Arlen Specter.)

Even if, all things considered, this is a reasonable way to provide for succession in case of death of a senator, does anyone wish to defend the present Succession in Office Act re the presidency?

# posted by

Sandy Levinson : 10:08 AM

The only possible differences a shift between a one seat Dem majority and a tie are who gets to call himself majority leader, office assignments and (I hope) that the GOP can insist either in a majority in the Judiciary Committee or that tie votes for judges get sent to the full Senate for a vote.

As for substantive legislation, the Senate will continue to do next to nothing in its usual gridlock. Heck, with all the Senators running for President, will the body even be able to muster a quorum?

# posted by

Bart DePalma : 10:22 AM

How do the South Dakota statutory provisions add up:

12-11-1. Special election to fill congressional vacancy--Time of election of representative. If a vacancy occurs in the office of a senator or representative in the United States Congress it shall be the duty of the Governor within ten days of the occurrence, to issue a proclamation setting the date of and calling for a special election for the purpose of filling such vacancy. If either a primary or general election is to be held within six months, an election to fill a vacancy in the office of representative in the United States Congress shall be held in conjunction with that election, otherwise the election shall be held not less than eighty nor more than ninety days after the vacancy occurs.

# posted by

Anonymous : 1:58 PM

Bart: Heck, with all the Senators running for President, will the body even be able to muster a quorum?

Heh. B^)

# posted by

Robert Link : 5:39 PM

I'm not sure if there is anything unfair about Rounds naming a Republican to replace Johnson, if the latter dies.

First, Rounds was just elected (in 2006) as governor, and the powers of SD governor include the power to name fill vacancies in the Senate.

Second, Rounds was elected in the same election where the entire nation was supposedly sending a message to Congress about he war, or whatever else (including through the election of 6 more Democratic governors). So clearly, SD voters did not intend to send that same message.

Third, the last senator elected from SD (in 2004) was John Thune, who is a Republican. So it can't be accurately said that SD voters preferred Democratic representation in the Senate, such that naming a Republican to replace Johnson would be unfair.

I don't see the reason to pass a state law (or a constitutional amendment) providing that governors have to name someone from the same party as a former senator to fill a vacant senate seat. There already is a provision to ensure that, it called voting for a governor from the same party as your senator.

If the majority of voters choose a governor from a different party, they are thereby deciding that any vacant senate seats will switch parties on his or her watch.

# posted by

Anonymous : 2:54 PM

I think that Count Twist demonstrates that it isn't "greatly unfair" for the party identity of senators to switch via gubernatorial appointment. But I continue to wonder if we wouldn't be better served, overall, if states in general followed by Alaska, Hawaii, and the other states mentioned in an earlier posting and precluded this possibility. It would be interesting, for example, to know what California voters would do if the issue were presented in a referendum. Would anyone besides wishy-washy "centrists" vote for the absolute gubernatorial power? Perhaps California is a bad example, if Republican voters believe that they are far more likely to have Democratic senators and Republican governors in their future, so they would vote strategically. But if they could imagine the days when both California senators were Republican at a time of Democratic governors, might they not be more "Rawlsian" and decide, overall, that the governor's hands should be tied somewhat?

# posted by

Sandy Levinson : 3:14 PM

I think Sandy believes voters generally vote their party affiliation. That belief may be based on the results of the most recent election in which party affiliation did seem to play a large role (see: Rhode Island, New Jersey senate races). But I don't think it is generally true.

As to California in particular, as a California resident for 8 years now, I can tell you that there are a lot more centrists here (including those registered as members of both major parties) than there are die-hard party loyalists of either stripe. Voters tend to vote for the person closest to the center.

As an example, Schawarzenegger was doing poorly when he as perceived to be a conservative; once he moved to the center, his approval ratings soared and he was overwhelmingly re-elected. Likewise, even someone as liberal as Boxer was elected in large part because her opposition was perceived to be farther from the center than she was. Feinstein, whose politics are not far from any moderate republican, is the most popular statewide elected official.

Ultimately, I do not see California voters objecting to the governor appointing someone to fill a vacancy who is of a different party than the late occupant as long as the person selected is not wildly far from the political center. It hasn't happened recently (because the last vacancy was caused and filled by Pete Wilson) but I doubt it would cause riots in the streets or even serious political problems for the governor.

# posted by

Anonymous : 4:33 PM