With Tim Johnson (Democrat, South Dakota) in critical condition after brain surgery, the Republican party is a heartbeat and one act of partisan cronyism away from regaining what the voters stripped it of in November’s election: Control of the United States Senate.
The state’s governor is a Republican, and among the many archaic anti-democratic elements of the US system of government is the rule that permits the governor of a state to appoint a replacement when a US Senator leaves office before the end of a term.
It is long past time to reform the mechanism for filling Senate vacancies. We should require a special election, just as is the case for vacant House seats. (The rule for the Senate is that the appointed replacement serves till the next general election and only then is there a special election. That would be 2008, and in this case the seat would have been up then anyway.) The governor’s nominee in the event Johnson cannot remain in office would require confirmation of the state legislature–controlled by the Republican party.
A Republican replacement would result in a 50-49-1 Senate. The one is, of course, independent Joe Lieberman of Connecticut, who has pledged to continue to caucus with the Democrats, despite defeating the Democratic nominee with an electoral coalition in 2006 that was overwhelmingly Republican and independent. Presumably, as was the case in January–May, 2001, if there were fifty Democrats (counting Lieberman) and fifty Republicans (with the appointed South Dakota replacement), the parties would evenly divide the committees and the agenda. But on any legislative matter or confirmation vote on which the GOP caucus was united, the Vice President’s tiebreaker–itself a vestige of bad institutional design–would tip the outcome in the Republicans’ favor.
I do not know if a Democrat would win a special election in South Dakota. Johnson won an extremely close reelection in 2002 (in an election in which a Libertarian had nearly six times the votes as the margin over the Republican) and the other Demcoratic Senator was defeated in 2004. However, 2006 was a very different year politically than in 2002 and 2004 (and particularly so in South Dakota!). Besides, it is the voters, and not partisan state officials, who should determine this critical (or any) seat.
It would appear that this situation arises from two purposely vague phrases in the US Constitution. Unamended the Constitution stated that “the times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof.” The 17th Amendment added “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. ” As I understand it the normal procedure would be for the legislature to arrange an election, but in the meantime they may choose to empower the governor to appoint someone. The obvious reason being that elections take time and the state wants to continue having two advocates in the Senate. I also believe at the time that states were less volatile and it was not seen as likely that a state would have a governor and a senator from different parties.
If I remember correctly, and thanks to a week of entirely non-academic activity this may be unlikely, the Senators were originally elected by the state legislators not by the people. This procedure fell into the same conceptualization as the electoral college, the people were too stupid/ignorant to directly elect such important figures. Though the Constitution only specifies that it is up to the state legislatures to decide this.
Now if only this question had been on the final . . .
Seed planted by Drew Schneider — 14 December 2006 @ 09:58
On Filling Senate Vacancies
It is rather disproportionate, and undemocratic, that the governor of South Dakota would be in a position to make such a decision. While I think it likely that SD would elect a Republican to fill Johnson’s seat, that is by no means certain. And, at least then the decision would be made through elections, not fiat.
Scion grafted by PoliBlog ™: A Rough Draft of my Thoughts — 14 December 2006 @ 10:10
Drew, you make a good point. It is one thing for a single House district to remain vacant till an election can be held, but another for a Senate seat to remain so.
I would not really have a problem with a short-term interim replacement, but I do think such a replacement should come from the same party as the departed member and that, above all, the writs for a special election should be issued immediately.
(Also worth noting: for a small state like South Dakota, a House vacancy would deprive it of 100% of its representation, while a Senate vacancy of “only” 50%. Perhaps the more relevant dimension is that said House seat is 1 of 435, while the Senate seat is 1 of 100. Thus a vacancy in the Senate is a bigger loss of relative influence, regardless of the size of a state.)
Seed planted by MSS — 14 December 2006 @ 10:28
It seems like Johnson will probably be OK, but even if he isn’t, the governor of SD can’t replace him unless he resigns. Haven’t there been cases where Senators were ill indefinitely but chose not to give up their seat? Is there any way that Johnson could be forced to do so? I suppose we can’t blame a brain aneurysm on the Republicans, but if they were to regain control this way it would be such a blow to this nation…
Seed planted by Tareq — 14 December 2006 @ 14:50
Art. 1, Section 5 (1-2) gives each chamber the right to sit in judgment of the “qualifications” of its members and “with the concurrence of two-thirds, expel a member.”
I assume this could be used to remove an incapacitated member, though I suppose the Democrats would refuse to expel any of their members who was alive even in the most medically minimal sense.
Let’s hope–not only for the sake of the Democratic majority and the country, but also for that of Mr. Johnson and his family–that it does not come to that.
Seed planted by MSS — 14 December 2006 @ 15:48
Incapacitated Senators
…whether the Senate had ever expelled a member who was permanently incapacitated. The answer is no.
Scion grafted by Fruits and Votes — 15 December 2006 @ 15:52
From S15 of the Australian constitution:
From Federation in 1900 until 1974 senators were, by convention, always replaced by a member of the same party. Two government senator were replaced by oppositions senators in 1974 and 1975, leading directly to the crisis on the budget and the dismissal of the Whitlam government. A 1977 referendum amended S15 to ensure that could never happen again. The rules for replacing senators are otherwise identical with the US.
Senate Casual Vacancies
Seed planted by Alan — 18 December 2006 @ 05:58