Balkinization  

Thursday, December 18, 2008

Can there be too much democracy? Yes.

Sandy Levinson

John Nichols has a blogpost for the Nation, a magazine I have written for and (therefore?) much admire. He, too, is upset by the bandwagon that is developing behind the candidacy of Caroline Kennedy to succeed Hillary Clinton in the Senate. He writes:

The problem is not Caroline Kennedy, or Andrew Cuomo for that matter. It's not Rod Blagojevich or Paterson. It's the fact that governors get to appoint senators. When a U.S. House seat goes vacant -- due to death or resignation -- the Constitution requires that a special election be held. When a U.S. Senate seat goes vacant, a Constitutional loophole allows governors in most states to start wheeling and dealing. It's a lousy loophole. Governors should not be in the business of appointing senators, be they Kennedys, Cuomos, Smiths or Jones. The people should make the pick. The Constitution should be amended to require that all Senate vacancies be filled by special elections.....



Nichols concludes by writing that we currently have "an anti-democratic model for choosing senators. In fact, it is worse than the pre-1913 system of allowing state legislatures to do the picking." There may be something to his general point, though the embrace of the pre-1913 system seems more than passing strange. But Nichols's more important failure is to think of contingencies that make his suggestion really a terrible one. They involve what has come to be known as the "continuity in government" problem, triggered by, say, a hi-jacked plane crashing into the Capitol and killing or disabling lots of representatives and senators. Under the present Constitution, killed senators are no particular problem, since they can be replaced the very next day by senatorial appointment. (Disabled senators are another matter, precisely because they are not dead and therefore don't create a "vacancy" that needs to be filled.) Both dead and disabled representatives, on the other hand, are a significant problems, precisely because the Constitution requires precisely what Nichols wishes for with regard to the Senate: All members of the House must be elected, none can be appointed.

This means that a catastrophe would almost certainly leave us without a functioning House or, if senators were "merely" disabled, Senate, and waiting around for special elections would scarcely help. Nichols, incidentally, has a strange bedfellow: Rep. James Sensenbrenner (R-Wis.), the former chair of the House Judiciary Committee who simply refused to hold any hearings at all on a proposed amendment to the Constitution, developed through a commission co-sponsored by the American Enterprise Institute and the Brookings Institution, that would allow for alternatives to special elections in the case of "wholesale" vacancies. Sensenbrenner believes that the Constitution has it right--that every representative should be elected, and that a catastrophe that would, say, wipe out 1/2 of the House could easily be tolerated systemically. Nichols apparently believes the same with regard to the Senate.

I think that such a view is close to bizarre. Among other things, as I argue in my book, the present Constitution assures a full-scale presidential dictatorship in the case of a catastrophe simply because there would not be even the possibility of a functioning, politically legitimate, Congress, and the American people would properly demand action.

I am as critical as anyone I know of "our undemocratic Constitution." But, putting to one side other debates we have had and will have in the future about other provisions of the Constitution, Mr. Nichols's embrace of choosing senators by popular election, whatever the circumstances, is little less dangerous than I believe the unamended Constitution to be. The 17th Amendment might not be perfect; it does allow, for example, the former governor of Alaska, Frank Murkowski, to name his daughter Lisa as his successor to the Senate (though I believe that it would be perfectly constitutional for states to pass laws preventing governors from choosing family members, just as federal law now prohibits a recurrence of the "Bobby Kennedy phenomenon," in which he was appointed to be Attorney General by his brother. But there is no real evidence that it disserves our country the way so many other features of the Constitution do. If the electorate doesn't like dynastic politics, there is an easy enough way to express that, at an election that must be held within a two-year period following the gubernatorial choice. (If Ms. Kennedy is slected in January 2009, she will have to face the voters in November 2010, as is true of the successors to Senators Salazar, Obama, and Biden (though the last has already pledged not to run in the 2010 election when, presumably, Joe Biden's son will try to succeed his father). Mr. Nichols proposed solution, on the other hand, has truly catastrophic implications even if, most of the time, it would be entirely benign in its application.






Comments:

The 17th Amendment doesn't empower Governors to appoint Senators, it just permits the state legislatures to so empower them if they choose. Since it is the states that have to incur the loss of representation while waiting for a special election to fill a vacancy, it makes sense that it be left up to them to balance that loss with the risks of temporary appointments.

While I agree that continuity of Congress is a serious issue, it doesn't really have much to do with the subject at hand. One could support empowering Governors to appoint Members of Congress in case of a catastrophic event without temporary appointments under normal circumstances.
 

Amusingly enough, this scenario was already covered by John Clancy in Debt of Honor, and in the following book, it was explained to him by his political mentor that the senatorial appointment ability allowed him to restaff the Cabinet relatively quickly in case of disaster.

Sometimes, fiction is the best place to find understanding of the outliers.
 

Can there be too much democracy?

Yes. And the far more interesting and edifying discussion of this problem was laid out by Aristotle quite some time ago.

That's a thread worth taking up, especially for us liberal types.
 

I think it’s important to point out that there is a big difference in most cases between holding a special election in a single congressional district and holding a special election for a whole state, especially a populous state such as Illinois or New York.

The whole issue would not be a problem if the governors would simply appoint the most qualified person they could find, without regard for political considerations. Not that that is ever going to happen.
 

The irony of course is that the Senate itself is by far the most undemocratic body with real power in the entire Western world. Indeed, its very existence makes me seriously question whether the United States federal government can properly be characterized as a democracy. I as a Californian am 70 times less represented than a person in Wyoming in the most significant house of the federal legislature.

So, if we are going to be worrying about democracy and the US Senate, interim gubernatorial appointment to that body are the last thing I would be thinking about . . .
 

Enough with the intellectual and procedural BS! Appointments of politicians is as unAmerican as my feeble dense mind can comprehend. But please don't let me upset your lofty pontifications.
 

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