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Senator Kirk’s Term and the Senate’s Constitutional Responsibility

           From comments made on various blogs, as well as exchanges with the election experts cited in this Politico story, I have distilled the following questions/criticisms regarding my prior post on Senator Kirk’s term. 

            1.  What proposition do the precedents cited in my post stand for?   Both the 1939 case involving Senator Berry and Vice President Marshall’s 1918 ruling involved the question of when an appointed Senator stops receiving compensation.  It may be suggested that this is a question distinct from that of when the Senator’s term ends.  While this could be so, in both cases the Senate clearly understood that the question of compensation turned on when the term ended, and that this issue in turn required an interpretation of the Seventeenth Amendment.  Thus, the Senate Judiciary Committee, in Senator Berry’s case, expressly found that under the Seventeenth Amendment, “the term of a Senator appointed to fill a vacancy in an unexpired term ends on the day when his successor is elected by the people.”  The resolution adopted by the full Senate, similarly, did not merely reject Senator Berry’s claim for compensation, but stated that his term ended on the date of the special election. 

            I don’t think, therefore, that one could plausibly dismiss either the 1939 decision or the 1918 opinion of VP Marshall as congressional “dicta,” as it were.  On the contrary, it could be argued that the non-political context of these rulings ( Marshall specifically notes his regret in having to reach the conclusion he does) adds to their force. 

            2.  Can’t the Senate make any decision it wishes?  The question of whether Kirk can continue to serve in the Senate after January 19 is certainly an issue that would be adjudicated by the Senate, assuming that a Senator sees fit to raise it.  When I wrote my post, I was also operating under the assumption that the Senate would have the final word on this issue (an assumption that is probably correct, but subject to a caveat in item 3 below). 

            This does not mean, however, that the Senate is free to do whatever it wishes.  As I have pointed out in other contexts, Congress has an obligation to follow the Constitution, regardless of whether the courts are going to review its actions.  In this case, the Senate is obliged to construe the terms of the Seventeenth Amendment to the best of its ability.  This is not the same thing as “doing whatever it wants.” 

            The Senate does not have an absolute obligation to adhere to its precedents, but I would say that it has an obligation to consider precedents that were established after full deliberation and not to depart from those precedents without good reason.  This is particularly true in a case such as this, where it would seem to matter less when an appointed Senator’s term ends than that there be a clear and established rule on the subject.  Otherwise, the question is liable to be determined in different ways depending on the political interests of the majority, which would tend to undermine the rule of law and bring discredit on the Senate. 

            As Thomas Jefferson wrote in the opening of the Manual he prepared for his own guidance as President of the Senate:  “It is much more material that there should be a rule to go by than what that rule is; that there be a uniformity of proceeding in business not subject to the caprice of the Speaker or captiousness of the members.  It is very material that order, decency, and regularity be preserved in a dignified public body.”  

            3.   What about the provisions of 2 U.S.C. § 36?   This statute provides that the salaries of appointed Senators shall “continue until their successors are elected and qualified.”  At a minimum, this law would seem to suggest an intent to reverse the decision as to compensation in the Berry case (in the circumstances of that case, the law would apparently allow both the appointed and newly elected Senators to draw salaries until the latter was qualified).  It should be noted, however, that the law in 1939 also allowed appointed Senators to draw salary following the special election under some circumstances, and it was recognized by the legal analysis prepared for Senate Judiciary Committee that this law was neither determinative of, nor necessarily based on, an interpretation of the Seventeenth Amendment. 

            Nevertheless, my earlier post does not preclude the possibility that post-1939 developments might undermine the force of the earlier precedents, although this would depend in part on the extent to which the Seventeenth Amendment question was actually considered and decided by the Senate.  It should also be noted that a pre-1939 precedent, the seating of Senator Felton as an appointed Senator after a special election had already occurred, may have been too quickly dismissed by the Senate Judiciary Committee in 1939.  The imperative here is simply for the Senate to fully consider and harmonize all of its relevant precedents, and to reach a decision as to the best interpretation of the Seventeenth Amendment. 

            Finally, it should be noted that 2 U.S.C. § 36 raises an intriguing possibility that the Senate’s decision as to Senator Kirk could be subject to judicial review.  Under this law, the fact that there is an appointed Senator from Massachusetts apparently prevents the newly elected Senator from drawing a salary the day after the special election, which he or she would otherwise be entitled to do.  The newly elected Senator from Massachusetts would arguably have a justiciable claim for denied compensation under Powell v. McCormack, 395 U.S. 486 (1969), based on the allegation that the Senate had unconstitutionally permitted Kirk to remain in the Senate.

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