All About Reconciliation

           My friend Chris Rice has a blog called “Reconcilers,” which is about bringing God’s peace to a broken world (he could explain it better than I can).  Here in DC, though, where we are more in the world-breaking business, “reconciliation” is definitely not about bringing people closer to God or to each other.  As Ezra Klein observes, “it’s hard to imagine another town in which the most divisive thing you could do would be called ‘reconciliation.’”  

            In brief, reconciliation is a process that allows budgetary legislation to be considered in Congress on an expedited basis and, most importantly, to pass without being subject to a Senate filibuster.  There has been much speculation that this procedure could be used to enact health care reform if the final legislation lacks sufficient support to overcome a filibuster. 

MSNBC has a good “Cliff Notes-like” version of the reconciliation process as it would apply to a health care reform bill.  For a somewhat more detailed (and, I hope, technically accurate) summary, see here.  And for those who would like an in depth analysis of reconciliation and the Byrd Rule (which provides the grounds on which Senators can object to the improper use of the reconciliation process), this CRS report from March 20, 2008 is an excellent source.   

I have three takeaways from the materials I have read regarding reconciliation and health care reform.  First, while there is plenty of ambiguity in the Byrd Rule, it seems very likely that, fairly construed, the rule would prohibit the enactment of significant portions of any healthcare reform bill.  To begin with, the prohibition against increasing the deficit in any fiscal year beyond the budget window seems like a pretty big sticking point.  There are also serious questions as to how non-budgetary provisions like the individual mandate or the requirement that health insurers accept persons with pre-existing conditions can pass muster. 

Second, regardless of what the “correct” application of the Byrd Rule might be, it seems quite likely that the Senate Parliamentarian will in fact sustain points of order with regard to significant aspects of a health care reform bill.   After all, it is not like the Parliamentarian is a judge whose views are unknown until the case is presented to him.   Senators have access to him and have clearly spoken to him about the likely issues.  Senator Conrad, for example, has stated that “[t]he Senate parliamentarian said to us that if you try to write substantive health reform in reconciliation, you’ll end up with Swiss cheese.”  As far as I know, no one has contradicted Conrad’s understanding of the Parliamentarian’s position. 

Finally, while there is much talk about how the Republicans used (or misused) reconciliation to enact various measures in the past, most particularly the Bush tax cuts, it does not appear that these actions established any precedents which are particularly helpful to those who would use reconciliation for health care reform.  Reconciliation was problematic for the tax cuts because they increased the deficits in the “out years,” but it was for precisely this reason that the Bush tax cuts will sunset at the beginning of 2011.  Unless the Democrats plan to enact health care reform that will expire in ten years or so, this precedent is of little use to them.



Was Senator-Designate Kirk Lawfully Appointed to Fill the Massachusetts Vacancy?

           The Massachusetts legislature has now passed a law empowering the Governor to appoint a temporary replacement for the vacancy created by the death of Senator Ted Kennedy.   As I indicated in a prior post, the Constitution permits it to do this, notwithstanding the controversy over the fact that it had previously stripped the (then-Republican) Governor of this authority in 2004.  Massachusetts Governor Deval Patrick has signed the law and announced his appointment of Paul Kirk to serve as the temporary senator. 

            There appears, however, to be a glitch.  Under the Massachusetts Constitution, laws do not go into effect until 90 days after the Governor signs them, unless the legislature includes a preamble stating that “such law is necessary for the immediate preservation of the public peace, health, safety or convenience.”  Such emergency legislation, however, requires a two-thirds majority.  The temporary appointment  legislation initially contained this language, but it was removed when the bill’s sponsors were unable to get the necessary supermajority.  Therefore, the legislation would not ordinarily go into effect until sometime in late December, rendering it nearly meaningless (as the special election to fill the seat is scheduled for mid-January). 

            But wait, there’s more.  Governor Patrick today sent a letter to the secretary of the commonwealth stating that the temporary appointment law “is an emergency law and, in my opinion, the immediate preservation of the public peace, health, safety or convenience requires that such law should take effect forthwith.”  He explains that “[t]he purpose of the Act is to ensure that the Commonwealth is fully represented in the United States Senate as it addresses issues of critical importance to the nation and the Commonwealth.” 

The Governor’s action was based on the following provision in the Massachusetts Constitution:  

If the governor, at any time before the election at which it is to be submitted to the people on referendum, files with the secretary of the commonwealth a statement declaring that in his opinion the immediate preservation of the public peace, health, safety or convenience requires that such law should take effect forthwith and that it is an emergency law and setting forth the facts constituting the emergency, then such law, if not previously suspended as hereinafter provided, shall take effect without suspension, or if such law has been so suspended such suspension shall thereupon terminate and such law shall thereupon take effect: but no grant of any franchise or amendment thereof, or renewal or extension thereof for more than one year shall be declared to be an emergency law. 

Got it?  Me neither.  The Governor contends that this provision allows him to disregard the legislature’s failure to find an emergency and order the law to take effect “forthwith.”  However, according to the Massachusetts Republican Party, the provision “can only be used when a law is subject to a referendum” in which case “the law could be subject to suspension of its operation” under the referendum provisions of the Massachusetts Constitution.  In this case the law cannot be subject to a referendum petition or a request for suspension; thus, the Governor’s authority to ensure that the law “shall take effect without suspension” is inapplicable.  It claims that its interpretation is supported by a 1975 opinion of the Massachusetts Supreme Court, and has filed a motion for a preliminary injunction in state court; a hearing is scheduled for tomorrow morning. 

            If the Massachusetts courts rule on the merits of this claim, it will almost certainly be the end of the matter.  However, there is a reasonable likelihood that the courts will hold that the matter to be non-justiciable because, for example, the plaintiff lacks standing or the courts cannot grant any effective relief.  If that happens, there is another way of challenging the legality of Senator-designate Kirk’s appointment.  As in the case of Roland Burris earlier this year, if the Senate believes that Kirk’s appointment is potentially unlawful, it has the option to either refuse to seat him pending an investigation by the Committee on Rules and Administration, or to seat him without prejudice to its right to determine that he is ultimately not entitled to the seat (of course, Kirk’s brief term is likely to expire before the Senate would make a determination either way). 

            I don’t know who is right on the law here, but there appears to be a serious question as to the legality of Senator-designate Kirk’s appointment.  If the Massachusetts courts cannot or will not rule on  the matter, the Senate should review the question.

Congress Versus Bank of America’s Attorney-Client Privilege

           The House Committee on Oversight and Government Reform has been conducting an investigation of Bank of America’s acquisition of Merrill Lynch, including the question of whether BOA learned information prior to the closing of that transaction which fell within the “material adverse change” provision of the merger agreement and whether BOA was required to make disclosures of this information to its shareholders.  As part of this investigation, Chairman Edolphus Towns sent a letter dated August 6, 2009 to BOA CEO Ken Lewis requesting the production of documents, including records of legal advice BOA received relating to the material adverse change provision and its disclosure obligations. 

            On September 9, 2009, BOA responded to Chairman Towns by letter from its attorneys at WilmerHale.   Not surprisingly, BOA argues that many of the documents responsive to the Committee’s request “are documents that fall into the core of the common law privilege for attorney-client communications.”  BOA points out that if it were to produce these documents voluntarily in response to the Chairman’s letter, it would likely waive the attorney-client privilege with respect to other investigators (such as the SEC or DOJ) and third parties.  Accordingly, BOA “respectfully request[s] that the Committee withdraw its request for voluntary production of [these] privileged materials.” 

            The Committee is not disputing that the documents withheld by BOA, at least by and large, are in fact attorney-client privileged.  One might wonder, therefore, why BOA simply does not refuse to produce the documents.  Apart from the political incentives that BOA has to cooperate with the Committee, the answer is found in the Chairman Towns’s response of September 18, 2009, in which he states that BOA’s attorneys acknowledge that “Congress has the right to refuse to recognize an assertion of the attorney-client privilege.” 

            Actually, this is not quite accurate.  WilmerHale only acknowledged that “Congress has long asserted the right of each chamber to make its own independent determination as to whether to recognize the attorney-client privilege.”  Acknowledging the assertion is not the same thing as acknowledging the right.  Nonetheless, it is the fact of this asserted congressional authority to disregard the attorney-client privilege that creates the dilemma for BOA. 

            The basis of Congress’s claimed authority to trump the privilege is simple.  Congress’s power to compel the production of information is a constitutional power.  Although not expressly granted by the Constitution, this power has been found by the Supreme Court to inhere in Article I’s grant of legislative authority.  In contrast, the attorney-client privilege (at least outside the criminal context) is not a constitutional right, but merely a common-law privilege which is generally recognized in state and federal judicial and administrative proceedings.  Because the congressional investigatory power is constitutionally based, it seems to follow logically (although many lawyers and judges will be sorely tempted to resist this logic) that it cannot be limited by a non-constitutional privilege created by the courts. 

            Though the argument is simple, the matter at hand is not.  Even if one accepts that Congress has the power to disregard the attorney-client privilege, it does not follow that it should or will do so.  As Mort Rosenberg notes in his most recent work on congressional investigations, a committee “can deny a witness’ request to invoke privilege when the committee concludes that it needs the information sought to accomplish its legislative functions . . . [but] [i]n practice . . . congressional committees have followed the courts’ guidance in assessing the validity of a common law privilege claim.” 

            While Chairman Towns may be inclined to overrule BOA’s privilege claim based on legislative need, he is not the final authority on the issue.  In order to hold BOA in contempt for withholding documents, his ruling would have to be upheld by the committee and by the full House.  As WilmerHale points out in its letter, there is reason to doubt that a majority of the House would be willing to hold a witness in contempt for withholding information that is truly privileged under the attorney-client doctrine. 

            Moreover, at this point BOA has not been subpoenaed, but has merely received a request for documents.  As a legal matter, BOA would be foolish to produce privileged documents now, as it would surely waive the privilege for the documents produced and risk an even broader waiver of the privilege with regard to the subject matter in question.  Even if BOA decides that it would prefer to produce the documents rather than face contempt of Congress, it can avoid a waiver only if it uses its best efforts to resist any subpoena for their production.  Exactly how far down the contempt road BOA must go is not entirely clear, but it must at least do everything it can short of being held in contempt in order to avoid a third party waiver.  

New Treasury Guidelines Prohibit Congressional Lobbying on TARP

           The Treasury Department has released new guidelines on TARP “lobbying.”  The term “lobbying” is in quotes because the guidelines, like those promulgated with regard to the award of stimulus funds, limit communications from outside parties, regardless of whether they happen to be registered lobbyists.  In brief, the guidelines (1) allow unrestricted oral communications at widely attended gatherings or with regard to purely logistical issues; (2) prohibit oral communications with outside parties, whether or not they are lobbyists, regarding pending applications for TARP funding; (3) require agency employees to document certain oral communications from registered lobbyists; and (4) require that these documented communications, as well as written communications from lobbyists, be posted Treasury’s website within three business days.  Daniel Schuman of the Sunlight Foundation has blogged about these new guidelines here 

            I simply want to flag one difference between the new TARP guidelines and the prior stimulus guidelines, one which Schuman also notes.  While the stimulus guidelines appear to allow oral communications between agency employees and Members of Congress (or congressional staff), the TARP guidelines are fairly clear in only allowing communications between Treasury employees and other “federal executive agency officials.”  This means that Members of Congress and their staffs are not permitted to talk with Treasury officials about pending TARP applications. 

            As I have suggested before, I think that this is a sensible provision, one designed to prevent circumvention of the communication blackout periods.  (It will, however, be difficult to enforce).  One wonders, however, why there would be a prohibition on congressional lobbying with regard to TARP funds, but not with regard to stimulus funds.  One possibility is that the question wasn’t fully considered during the drafting of the stimulus guidelines or that the stimulus guidelines were intentionally left ambiguous on the point.  Alternatively, the administration would have to have some explanation as to why congressional lobbying on TARP is worse than lobbying on stimulus.  Perhaps there is a feeling that the former is more susceptible to improper influence, or that the latter more properly involves consideration of political factors.  Perhaps the administration will be asked to explain the discrepancy at some point.

More on the Wilson Matter


           A few more observations on the Joe Wilson matter.  A Fox News reporter this morning commented that Wilson’s conduct violated section 370 of the House Rules and Manual.  This is true, sort of.  Section 370 is actually the provision of Jefferson’s Manual of Parliamentary Practice which states “[i]n Parliament, to speak irreverently or seditiously against the King is against order.”  As the House Parliamentarian’s Notes observe, this provision is “manifestly inapplicable” to the House of Representatives.  However, because the House Rules do not directly address the subject, this section is where the Parliamentarian has collected the rulings (quoted in my previous post) regarding “personal abuse, innuendo, or ridicule of the President.” 

            Second, there has been some more explanation regarding the “resolution of disapproval.”  As I surmised, this resolution is intended to be a form of punishment.  One article says that “[r]esolutions of disapproval are a rare, though not unprecedented, way of punishing a member.”  Maybe so, but this historical summary of conduct cases in the House, compiled by the Ethics Committee, contains no evidence that the House has ever used a “resolution of disapproval” to punish a member. 

            Apparently the “resolution of disapproval” is meant to be a milder punishment than the recognized punishments of censure or reprimand.  According to Rule 24(g) of the Rules of the House Ethics Committee, reprimand is appropriate for “serious violations” and censure is appropriate for “more serious violations.”  Why, exactly, the House would need to establish yet another level of verbal chastisement for Representative Wilson is a matter of speculation.  Perhaps it was deemed unwise to equate Wilson’s behavior with that of those who have been previously reprimanded by the House.   Representative Barney Frank, for example, was reprimanded in 1990 for “1) Use of personal residence for prostitution by third parties, 2) improper contacts with probation office on behalf of personal assistant, 3) improper dismissal of assistant’s parking tickets, and 4) sexual activity in the House gymnasium.”  

            Finally, it is worth mentioning a precedent that is likely to be discussed in the debate on the resolution of disapproval.  On October 18, 2007, Representative Pete Stark, in discussing a children’s health care bill, stated: ‘‘You don’t have money to fund the war or children. But you’re going to spend it to blow up innocent people if we can get enough kids to grow old enough for you to send to Iraq to get their heads blown off for the President’ amusement.’’  The chair responded to this comment by noting “Members are reminded not to engage in personalities toward the President.”  This, however, was not sufficient for Minority Leader Boehner, who introduced a resolution to censure Stark, which resolution was tabled by a vote of 196 to 173.   

            I think fair-minded people will agree that Stark’s comment was significantly worse, from the standpoint of heaping opprobrium on the president, than Wilson’s.  While Stark’s comment was not made during a presidential address, it equally lacked any legitimate connection to a House power or duty, and was at least as likely to cause ill-feeling, estrangement and loss of respect between the branches.  It is therefore difficult to see how one could justify punishing Wilson if one did not support punishing Stark. 

            The one distinction that favors Stark is that he apologized on the House floor, which is what Wilson’s critics have demanded (and probably why they have demanded it).  However, Stark did not apologize until after the resolution of censure was tabled, and there is no particular reason to believe that he would have been punished if he had not apologized.  More importantly, it is unclear why a personal apology offered to the President, as occurred in Wilson’s case, should be less of a mitigating factor than an apology given on the House floor.  (The House Ethics Committee has considered personal apologies as mitigating factors in the past, for example in the case of personal apologies made by members to Representative Nick Smith after they made “regrettable” comments to him during the vote on the Medicare Prescription Drug bill of 2003).

Scolding Joe Wilson

The Hill newspaper reports that Speaker Nancy Pelosi “has agreed the House should vote . . . on scolding Rep. Joe Wilson (R-S.C.) for his outburst during President Barack Obama’s speech unless he apologies on the floor of the House.”  The “scolding” will apparently take the form of a “resolution of disapproval” that would be introduced sometime this week.  It is not exactly clear what a “resolution of disapproval” is, but it appears to be in substance a censure or reprimand of Representative Wilson.  

            It is perhaps a fool’s errand to analyze this intensely political and subjective issue as a question of neutral application of House rules, but since there are no doubt Members of Congress asking the Parliamentarian to do just that, here goes.   

            Although The Hill states that it is against House rules to “impugn the integrity of the president,” one will search the House rules in vain for an express declaration to that effect.  Rule XVII, dealing with “Decorum and Debate,” prohibits references in debate to the Senate, Senate proceedings or individual Senators, but does not explicitly mention the President.   

            Nevertheless, House precedents clearly establish limits on what Members can say about the President on the floor.  This question was most thoroughly considered in 1909, when Representative Willett accused President Theodore Roosevelt of “persistent defamation” of a particular military officer.  Another Member raised a point of order and asked that the words be taken down and reported to the House.  Subsequently, the House approved a resolution to appoint a special committee to look into the matter. 

            Representative Willett argued that he did not violate any rule, stating: “Freedom of speech has always been held so sacred that the utmost latitude has been allowed in debate, and I respectfully submit that to strike my speech from the Record in this instance will establish a precedent extremely dangerous, because it will mean, in the light of past precedents, that the House has at last surrendered to the proposition that no Member can discuss any subject the discussion of which happens to displease the majority.”

The committee, however, rejected this argument, noting that “freedom of speech in debate does not mean license to indulge in personal abuse or ridicule. The right of Members of the two Houses of Congress to criticise the official acts of the President and other executive officers is beyond question, but this right is subject to proper rules requiring decorum in debate.” Analogizing to the prohibition on criticizing the Senate, the committee pointed out that “[i]n matters of legislation the Constitution therefore makes the House of Representatives, the Senate, and the President coordinate, dependent, and interdependent powers, and the principles of proper decorum and due courtesy governing the relations of the two Houses of Congress should also, to a certain extent, govern the relations of the House of Representatives and the President.” Finally, it recognized that there was no “clear line of distinction” between legitimate criticism of the President and that which is “merely personal and irritating, having no legitimate connection with the powers or duties of the House and tending only to produce ill feeling, estrangement, and loss of respect between two coordinates branches of the Government.” Nevertheless, it concluded that Willett’s words crossed the line and should be expunged from the record. See VI Cannon’s Precedents § 2497.

In accordance with this precedent, a Member alleged to have referred to the President in terms of opprobrium may be called to order under House Rule XVII, clause 4, and the Chair will determine whether the remarks were in order. If the Chair (or the House) rule against the Member, he or she is not permitted to speak further on that day without the permission of the House. A review of the Parliamentarian’s Notes reveals that there have been many instances where Members have crossed the line in discussing the President:

Personal abuse, innuendo, or ridicule of the President, is not permitted

(VIII, 2497; Aug. 12, 1986, p. 21078; Oct. 21, 1987, p. 8857; Sept. 21, 1994,

p. 25147; Sep. 7, 2006, p. ——). Under this standard it is not in order

to call the President, or a presumptive major-party nominee for President,

a ‘‘liar’’ or accuse him of ‘‘lying’’ (June 26, 1985, p. 17394; Sept. 24, 1992,

pp. 27345, 27346; Nov. 15, 1995, p. 32587; June 6, 1996, pp. 13228, 13229;

Mar. 18, 1998, p. 3937; Nov. 14, 2002, p. 22370; July 15, 2003, p. ——;

Mar. 24, 2004, p. ——). Indeed, any suggestion of mendacity is out of order.

For example, the following remarks have been held out of order: (1) suggesting

that the President misrepresented the truth, attempted to obstruct

justice, and encouraged others to perjure themselves (Feb. 25, 1998, p.

2621); (2) accusing him of dishonesty (July 13, 2004, p. ——; June 29,

2005, p. ——), accusing him of making a ‘‘dishonest argument’’ (Sept. 12,

2006, p. ——), charging him with intent to be intellectually dishonest (May

9, 1990, p. 9828), or stating that many were convinced he had ‘‘not been

honest’’ (Mar. 5, 1998, p. 2620); (3) accusing him of ‘‘raping’’ the truth

(Apr. 24, 1996, p. 8807), not telling the truth (Oct. 29, 2003, p. ——), or

distorting the truth (Sept. 9, 2003, p. ——); (4) stating that he was not

being ‘‘straight with us’’ (Nov. 19, 2003, p. ——); (5) accusing him of being

deceptive (Mar. 29, 2004, p. ——; Mar. 31, 2004, p. ——; Feb. 1, 2006,

p. ——), fabricating an issue (July 6, 2004, p. ——), or intending to mislead

the public (Oct. 6, 2004, p. ——; June 9, 2005, p. ——); (6) accusing him

of intentional mischaracterization, although mischaracterization without

intent to deceive is not necessarily out of order (July 19, 2005, p. ——).

Although Rule XVII provides that “[i]f the case requires it, an offending Member, Delegate, or Resident Commissioner shall be liable to censure or such other punishment as the House may consider proper,” it does not appear that any Member has ever been punished for making inappropriate remarks about the President. In many cases, Members who have violated the rules have merely been admonished by the Chair. For example, on June 29, 2005, Representative McGovern stated on the floor that President Bush had “misled this Nation to justify his invasion of Iraq” and “shamelessly, in my opinion, invoked the terrible tragedy of September 11 to justify our continued occupation.” Representative McDermott then referred to Iraq as “a war of conquest by George Bush” and noted that “nobody trusts [the President’s] judgment.” In response, the Chair reminded members that “they should not make derogatory statements toward the President.” No further action appears to have been taken.

Had Representative Wilson accused President Obama of lying about health care in the course of debate, it seems likely that he would have received a similar reminder but no other consequences. At most, his words would have been taken down and ruled out of order. It seems inconceivable, based on House precedents, that he would have faced censure or other punishment.

Of course, Wilson’s remark did not occur in the course of debate, but was an interjection during the President’s address to a joint session of Congress. One can therefore plausibly argue that he committed a greater offense, from the standpoint of decorum, than someone who made similar remarks in the course of a debate. It certainly seems that crying out “you lie” in the middle of the President’s speech has no legitimate connection to the House’s powers or duties and tends only to produce ill feeling, estrangement, and loss of respect between the branches.

On the other side, Wilson did apologize, both publicly and to the President, for his behavior. Given this apology, it is hard to see how one could characterize his behavior as so much worse than garden variety “abuse, innuendo or ridicule of the President” to warrant an unprecedented punishment by the House.

D.C. Circuit Rejects Constitutional Challenge to Lobbying Disclosure

           The D.C. Circuit ruled this week in National Association of Manufacturers v. Taylor, rejecting NAM’s challenge to the constitutionality of section 207 of the Honest Leadership and Open Government Act (HLOGA), which enhanced a previous disclosure requirement of the Lobbying Disclosure Act (LDA) (hat tip: Election Law Blog).  Under this provision, disclosure is required not only of the organization which nominally conducts lobbying activities, but of any other organization which contributes more than $5,000 toward, and actively participates in, such lobbying activities.  In NAM’s case this would mean that it would be required to identify member companies that fund and actively participate in particular lobbying activities.  NAM argued that this requirement violated its First Amendment rights and “would chill NAM members from participating in public policy initiatives for fear of the consequences of public disclosure.”  It also argued that the provision was unconstitutionally vague. 

            The result in the case is not particularly surprising.  However, some of the court’s language, in an opinion authored by Judge Garland and joined by Judges Ginsburg and Henderson, is noteworthy for how strongly it affirms Congress’s authority to require the disclosure of lobbying-related information.  Although the court acknowledges that the LDA/HLOGA requirements do place a burden on NAM’s First Amendment rights, it finds this burden is justified by the “vital national interest” in public disclosure of “’who is being hired, who is putting up the money, and how much’ they are spending to influence legislation.”  (citing United States v. Harriss, 347 U.S. 612, 625-26 (1954)).  It is also largely dismissive of NAM’s attempts to question the utility of the information disclosed under the statute and the clarity of the statutory definition of “lobbying activities.” 

Finding that the government’s compelling interest in lobbying disclosure has been long settled by Harriss, the court is definitive in its rejection of the constitutional challenge.  Its sweeping language is likely to discourage future challenges to the disclosure requirements of LDA/HLOGA: 

Because nothing has transpired in the last half century to suggest that the national interest in public disclosure of lobbying information is any less vital than it was when the Supreme Court first considered the issue, we reject [NAM’s] challenge.


            For more than sixty years, Congress has sought to expose the lobbying of government officials to public scrutiny.  Acronyms and intricacies aside, the progression from the FLRA [Federal Regulation of Lobbying Act of 1946] to the LDA to the HLOGA marks the legislature’s attempt to shine increasing light on the efforts of paid lobbyists to influence the public decisionmaking process.  We find nothing unconstitutional in the way Congress has gone about that task. (emphasis added)




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.