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Is Vicki Kennedy Unconstitutional?

           As has been widely discussed in the last few weeks, in 2004 Massachusetts changed its law providing for the filling of a senatorial vacancy.  In order to prevent Republican Governor Mitt Romney from filling John Kerry’s Senate seat (in the event that the latter won the 2004 presidential election), the Democratic legislature repealed the prior law which permitted the Governor to make temporary appointments in the event of a vacancy. 

            The current Massachusetts law (Chapter 236 of the Acts of 2004) provides that “[u]pon failure to choose a senator or representative in Congress or upon creation of a vacancy in that office, the governor shall immediately cause precepts to be issued to the aldermen in every city and the selectmen in every town in the district, directing them to call an election on the day appointed in the precepts for the election of such senator or representative.  The day so appointed shall not be more than 160 nor less than 145 days after the date that a vacancy is created or a failure to choose occurs.  Filing a letter of resignation creates a vacancy under this section, even if the resignation is not effective until some later time, but the date of the election to fill a vacancy under this section shall be after the resignation is effective.” 

            Pursuant to this law, Governor Patrick has set a special election date of January 19, 2010 to fill the vacancy created by Senator Edward Kennedy’s death last week.  As things stand, the Governor has no authority to make a temporary appointment to fill the seat until the special election. 

            Before his death, Kennedy had urged Massachusetts leaders to change the vacancy law to allow for temporary appointments.  Kennedy also advocated the Governor appoint someone who made an explicit personal commitment not to be a candidate in the special election.  The Massachusetts legislature is scheduled to conduct hearings on this proposal next week, and few will be surprised if the law is hastily changed again to allow for temporary appointments. 

            Nothing in the Constitution appears to prevent a state legislature from changing its law to allow for the temporary filling of a vacancy that has already occurred or, indeed, from changing its law back and forth to permit or forbid temporary appointments depending on who is serving as Governor.  However unseemly such partisan manipulation may be, the Massachusetts legislature would seem to be free to empower Governor Patrick, pursuant to the Seventeenth Amendment, to fill Kennedy’s seat with a candidate of his choosing (the answer to the question posed by the title to this post, referring to widespread speculation that the Governor will appoint Kennedy’s widow, is therefore no).

A more difficult constitutional question is whether the legislature can constrain the Governor’s choice. As Professor Vikram Amar points out (hat tip: Election Law Blog), the Seventeenth Amendment does not give the state legislature any authority to make or constrain the making of temporary appointments. Therefore, he argues that it is unconstitutional for the legislature, for example, to require that a temporarily appointed senator be of the same political party as the senator he or she replaces (a few states have enacted such a requirement). He bases this argument in large part on the fact that “backers of the Seventeenth Amendment . . . wanted to put state legislatures out of the business of picking Senators.”

I am not inclined to read as much into the legislative history of the Seventeenth Amendment as Professor Amar. Unquestionably the amendment was motivated by the belief that senators should be selected by the people, rather than by state legislatures, but it seems likely that the temporary appointment process was based more on the fact that Governors would be able to appoint a replacement quickly than on a relative preference for the democratic accountability of the executive compared to the legislative branch. After all, the original Constitution had authorized the executive to make temporary appointments. And if the framers of the Seventeenth Amendment had been so distrustful of state legislatures, they would not have left it up to the legislatures to decide whether to give the temporary appointment authority to the Governor. (Of course, the performance of the Massachusetts legislature may suggest that greater suspicion would have been warranted, but that’s another story.)

Nevertheless, Amar is probably correct that the legislature cannot constitutionally prohibit the Governor from selecting anyone for a Senate appointment who meets the constitutionally prescribed qualifications (age, residency and citizenship). These qualifications are exclusive and attempts by either the Congress or the states to add to them have been held unconstitutional by the Supreme Court. Thus, were the legislature to enact a “same party” limitation on the appointment power and the Governor were to ignore it, the Senate would probably be obligated to seat the Governor’s choice.

But suppose one looks at the “same party” rule not as an attempt to add new qualifications, but as an instruction to the Governor as to how the legislature wishes the appointment power to be exercised? In that case, the Governor would in essence make a compact with the legislature that only members of the same party will be appointed. Violation of that compact may not be specifically enforceable, but the legislature could revoke the compact (i.e., repeal the temporary appointment authority) if the Governor fails to comply with its instructions. It is difficult to see why this would present a constitutional problem, particularly if the limitation were couched in advisory terms.

A similar analysis would apply to an attempt by the legislature to instruct the Governor to appoint only individuals who promised not to stand as candidates in the special election. This promise would not itself be enforceable (i.e., the legislature could not forbid appointed senators from running in the special election), but there is nothing per se unconstitutional about including such a request/instruction to the Governor in the enabling legislation.

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