Author: Michael Stern

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Waters and Casework Considerations

To evaluate the charges against Representative Waters, discussed in my last post, we should begin with the meeting that she arranged in her September 2008 telephone call to then-Treasury Secretary Paulson.  Although the ethics investigative subcommittee did not find that this meeting itself violated any House rules, the Statement of Alleged Violation devotes its first section to this meeting, and it seems that the meeting is somehow integral to the charges against Waters.

In arranging the meeting, Waters was engaged in what is commonly described as “casework.”  The House Ethics Manual describes casework generally as “act[ing] as a ‘go-between’ or conduit between the Member’s constituents and administrative agencies of the federal government.”  Quoting the late Senator Paul Douglas, it states that “there is a ‘sound ethical basis for legislators to represent the interests of constituents and other citizens in their dealings with administrative officials and bodies.’”

The Ethics Manual provides broad guidance on performing casework, but it sets forth few hard and fast rules.  As Dennis Thompson notes, referring to the seminal House advisory opinion which forms the basis for both the House and Senate’s guidance on casework, it “advises against very little and prohibits even less.”  (see Ethics in Congress p. 91).

Nevertheless, there are a few basic principles.  As the Ethics Manual states, “a Member’s obligations are to all constituents equally, and considerations such as political support, party affiliation, or one’s status as a campaign contributor should not affect either the decision of a Member to provide assistance or the quality of help that is given to a constituent.”  Thus, Members can perform casework for campaign contributors, so long as they would perform the same services for non-contributors, but must “take care not to show favoritism to them over other constituents.”

There is also no absolute prohibition against performing casework on matters where a Member has a personal financial interest.  While the rules explicitly prohibit a senior House employee from contacting a federal agency regarding “nonlegislative matters . . . in which the employee has a significant financial interest” (absent written permission from the Member or other employing authority for whom the employee works), no such prohibition applies to the Member.  The Ethics Manual cautions, however, that Members should “refrain” from performing casework that “would serve their own narrow, financial interests as distinct from those of their constituents.”

These principles would have made it problematic for Waters to have arranged a meeting with Treasury officials for the purpose of discussing a bailout of OneUnited.  Exactly where one draws the line between a merely incidental financial interest shared in common with many others (as, in the example given by the Ethics Manual, where a Member who happens to be a farmer represents constituents in discussions of farm policy with the Department of Agriculture), on the one hand, and a “narrow, financial interest,” on the other, is not clear, but Waters’ significant stock ownership in a small financial institution seems to fall closer to the latter.

In this case, however, the impropriety of intervening on behalf of OneUnited is apparent for a different reason.  OneUnited was not a constituent of Waters.  Generally speaking, the Ethics Manual states that Members are not supposed to perform casework for non-constituents. This is not an absolute rule, but, combined with Waters’ personal financial interest in OneUnited, it would seem to justify a finding that performing casework for OneUnited constituted at least a prima facie violation of the ethics rules.

The investigative subcommittee did not allege such a violation, however, because it found that Waters had arranged the meeting not on behalf of OneUnited, but on behalf of the National Bankers Association (NBA), a trade association of minority-owned financial institutions. Moreover, the subcommittee was probably correct that performing casework for NBA did not violate the rules, even if Waters knew that the casework would advance OneUnited’s interests along with those of other NBA members.  As the chair of the Subcommittee on Housing and Community Opportunity of the House Financial Services Committee, Waters had a legitimate interest in ensuring that the NBA’s concerns were addressed.  Had it not been for her ties to OneUnited, it certainly would not have been considered unusual or improper for her to set up a meeting on behalf of NBA.

There are a number of facts about the meeting which remain unknown.  For example, what did Waters understand about the relative interests of OneUnited and other members of the NBA with respect to the meeting?  Clearly, Waters must have understood that OneUnited had a significant interest in getting a bailout from the Treasury Department, but the record does not reflect what she knew or was told about the interests of other NBA members.  If she understood that OneUnited’s interests were the primary motivation for the meeting, it would make her actions more problematic under the ethics rules.

Another question is whether Waters’ response to the meeting request suggests favoritism on her part.  Certainly it cannot be common for her to telephone a cabinet secretary to set up a meeting.  The memorandum of her interview with OCE states:  “When asked about other conversations with Sec. Paulson, Rep. Waters stated that ‘you don’t use your chits for nothing, you call when there is an important issue.’”  On the other hand, as Waters’ counsel points out, there is no evidence that she took other actions, such as importuning Treasury officials, beyond setting up the meeting.  This would cut against a finding of favoritism.

In the absence of any additional evidence on these issues, which the subcommittee decided not to explore, I would say that Waters’ action in setting up the meeting with Treasury, though it may come close to the ethical line, did not cross it.  The subcommittee was therefore justified in concluding that this meeting did not violate the rules.

In my next post I will consider the subcommittee’s conclusion that Waters’ conduct after the meeting violated the rules.

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The Waters Case

An investigative subcommittee of the House Ethics Committee has charged Representative Maxine Waters (D-Ca.) with three counts of ethics violations stemming from efforts that she and her staff made to assist OneUnited Bank, a Boston-based, minority-owned financial institution which sought and obtained a TARP bailout in the fall of 2008.  These efforts were improper, according to the subcommittee because of Waters’ close personal, political and financial ties to OneUnited.  To wit, the bank’s chairman and CEO had contributed to and raised funds for Waters, Waters’ husband had served on the bank’s board of directors from 2004 to the spring of 2008, and, most significantly, Waters’ husband owned stock in OneUnited that was valued, prior to the financial crisis, at about $350,000.

 

The relevant events began in late summer 2008, when the value of Fannie Mae and Freddie Mac fell sharply, threatening the viability of OneUnited, which had invested heavily in these companies.  According to Representative Barney Frank, who turns out to be a key witness in this case, “OneUnited had overbought preferred shares in Fannie Mae and Freddie Mac and was therefore at a greater risk of collapse than any other bank” from the insolvency of these companies.

 

On or about September 7, 2008, the day that the federal government placed Fannie Mae and Freddie Mac into conservatorship, executives from OneUnited approached Waters and asked her to set up a meeting with the Treasury Department to discuss a proposal under which Treasury would bail out minority-owned banks by purchasing from them, at above market prices, Fannie Mae and Freddie Mac shares that they owned.  Although the request was ostensibly on behalf of the National Bankers Association (NBA), a trade association of minority-owned banks, it appears that the OneUnited executives were the driving force behind the request and that the bank’s need for a bail out was the primary, if not exclusive, reason for it.

 

Waters then telephoned Treasury Secretary Hank Paulson and asked for the meeting, and he agreed to her request.  The meeting was attended by Waters’s chief of staff (who also happens to be her grandson), some other congressional staffers, and senior Treasury officials.  Attending for the NBA were OneUnited’s counsel who was also the chair-elect of the NBA, the chairman and CEO of OneUnited, and another senior official of the bank.  No other NBA members were represented at the meeting.  During the meeting, the OneUnited officials specifically discussed their bank’s financial situation and asked Treasury to provide them with $50 million to protect the bank against collapse.  The Treasury officials demurred, saying they lacked legal authority to grant this request.

 

Following the meeting, OneUnited realized that it was unlikely to get relief directly from Treasury.  Accordingly, it began working with allies in Congress, including Representative Waters’ office, to obtain legislative language that would require the federal government to repurchase Fannie Mae and Freddie Mac shares owned by any “Community Development Financial Institution,” i.e., banks such as OneUnited.

 

At around this time, Waters approached Barney Frank to discuss OneUnited’s problem.  According to Frank’s interview with the Office of Congressional Ethics, Waters told him “that she was in a predicament because [her husband] had been involved in the bank, but OneUnited people were coming to her for help.  She knew that she should say no, but it bothered her.”  Although Waters did not tell Frank about her husband’s stock ownership, it was still clear to Frank that “this was a conflict of interest problem.”

 

Frank told Waters that she should “stay out of it.”  He indicated that he would handle OneUnited’s concerns since he had representational interests (OneUnited was a Boston bank) and was sympathetic to OneUnited’s situation (he had a “commitment to minority banks”).  As the chairman of the Financial Services Committee (a committee on which Waters also served), it made sense for Frank to be involved in the issue.  He instructed his staff to take over the OneUnited matter from Waters’ staff.

 

Following her discussion(s) with Frank, Waters told her chief of staff words to the effect that Frank would be handling the minority bank issue so he should “not worry about it.”  However, according to the Ethics subcommittee, Waters never instructed her staff to stop assisting OneUnited.  Although Waters herself apparently had no further involvement in the OneUnited issue, her chief of staff continued to be involved in the OneUnited matter, primarily by monitoring and to some extent assisting OneUnited efforts to obtain a legislative fix.  OneUnited was successful in obtaining a provision in the TARP legislation that authorized and encouraged the Secretary of the Treasury to bail out banks in OneUnited’s specific situation, a provision that Frank indicated was crafted with OneUnited in mind.  Ultimately, OneUnited received more than $12 million in TARP funding in December 2008 and was also able to raise significant amounts of private capital to keep itself afloat.

 

Based on these facts, the Ethics subcommittee has charged Waters with several violations.  It is important, however, to first note what Waters is not charged with.   The subcommittee does not allege that Waters’ actions in arranging the meeting with the Treasury Department or speaking to Frank regarding OneUnited themselves violated the ethics rules.  The subcommittee does not allege that Waters or her staff used improper means to advance OneUnited’s interests (e.g., by threatening or pressuring executive agencies).  Finally, the subcommittee does not allege that the actions by Waters or her staff on behalf of OneUnited were motivated by Waters’ financial interest in the bank (claims, by the always understated CREW, that Waters “abused her office for personal financial gain” notwithstanding).

 

So what is the basis for the ethics charges against Waters?  The lynchpin is the personal financial interest that Waters had in OneUnited.  Because the failure of OneUnited would have resulted in Waters, through her husband, losing a very substantial investment, the subcommittee alleges that Waters had an obligation to avoid actions that would create the appearance of acting for her own personal benefit, or of receiving a personal benefit (the preservation of her husband’s investment) from the exercise of her official influence, or of dispensing special favors to OneUnited.  Waters allegedly violated this obligation by failing to instruct her chief of staff not to assist OneUnited, even after she acknowledged to Frank that she should not be involved in the OneUnited matter.

 

It seems undeniable that OneUnited’s requests to Waters and her office created a conflict of interest situation.  But the ethics rules do not require Members of Congress to avoid taking official actions merely because a conflict of interest is presented.  The ethics subcommittee purported to derive, from rather vague and general ethics rules, a specific line which Waters impermissibly crossed.  In my next post I will consider whether this line makes sense under the circumstances presented to the subcommittee.

 

 

 

 

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Lobbyist Fundraising and the Second Circuit

Perhaps the most significant aspect of the Second Circuit’s decision in Green Party of Connecticut v. Garfield, discussed in my last post, involves Connecticut’s ban on soliciting of campaign contributions by contractors and lobbyists.  In contrast to the ban on direct contributions, which the court found to be a peripheral First Amendment activity subject to the more lenient “closely drawn” level of scrutiny, the Second Circuit stated “a limit on the solicitation of otherwise permissible contributions prohibits exactly the kind of expressive activity that lies at the First Amendment’s ‘core.’”  Accordingly, it held that the ban on solicitations was subject to strict scrutiny, i.e., the restriction could only be upheld if it was “narrowly tailored” to further a “compelling interest.”  

            The district court had found that the government had a compelling interest in combating the threat posed by “bundling” of campaign contributions by contractors or lobbyists, particularly with respect to contributions from their employees or clients.  The danger is that “contractors and lobbyists will promise to deliver large number of coordinated contributions to a state official in exchange for political favors.”

           

            The court of appeals expressed some skepticism as to whether there was a compelling interest in stopping bundling.  The court seemed to feel that it was unlikely that bundling would lead to “quid pro quo” corruption (in other words, an actual agreement to exchange political favors for bundled contributions).  Instead, the court apparently viewed bundling as more analogous to independent expenditures, where the indirect benefit received by the candidate is viewed as insufficient to justify curtailment of First Amendment rights. 

            Even assuming the threat of bundling implicated a compelling interest, however, the Second Circuit concluded that the solicitation ban was not “narrowly tailored” to address that interest.  Without holding that any of these methods would necessarily survive strict scrutiny, the court identified several less restrictive alternatives to “address the perceived bundling threat.”  These included: (1) a direct ban on bundling itself; (2) a ban on large-scale efforts to raise funds, such as “a ban on state contractors organizing fundraising events of a certain size;” and (3) a ban on soliciting money only from certain individuals, such as banning contractors from soliciting money from employees and lobbyists from soliciting money from clients. 

            Accordingly, the court held that the solicitation ban violated the First Amendment with respect to both contractors and lobbyists.  It should be noted that this ruling, if it is followed by other circuits, would mean that federal laws to ban lobbyist fundraising face a high constitutional hurdle.  

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The Second Circuit, Lobbying Regulation, and the “Appearance of Corruption”

In Green Party of Connecticut v. Garfield, decided last month, the Second Circuit considered a First Amendment challenge to Connecticut’s Campaign Finance Reform Act, a law that prohibited campaign contributions and fundraising solicitations by (1) state contractors and prospective contractors and (2) lobbyists.  The law also covered certain individuals, such as family members, associated with contractors and lobbyists. There are two aspects of this decision that I find of interest.  The first, which I will discuss today, involves the court’s application of the “appearance of corruption” standard to the ban on campaign contributions.  The court begins its analysis by finding that limitations on campaign contributions are not subject to the most exacting standard of review, strict scrutiny, but only the more relaxed “closely drawn” standard (under which a law will be upheld if it is closely drawn to match a sufficiently important governmental interest).  This is based on the theory that campaign contributions, while they implicate a First Amendment interest, are “closer to the edges than to the core of political expression.” Finding that CFRA was passed in response to several corruption scandals in Connecticut involving bribes paid to public officials by contractors and prospective contractors, the court had little difficulty in finding a sufficiently important public interest in limiting contractor campaign contributions.  The court had more trouble, however, justifying Connecticut’s total ban on such contributions.  The panel noted that a complete ban was a “drastic measure” and expressed skepticism that allowing small contributions by contractors would lead to actual corruption. Nevertheless, it concluded that the state had a strong interest in preventing even the appearance of corruption.  Noting that “Connecticut’s recent corruption scandals were widely publicized, and corruption involving contractors became a political issue,” it found the ban on contractor contributions “an appropriate response to a specific series of incidents that have created a strong appearance of corruption with respect to all contractor contributions.” Moreover, the Second Circuit upheld the contribution ban as applied to contactor “principals,” defined to include a wide range of officers, directors, shareholders and managerial employees, and family members, despite the absence of evidence that such individuals had been involved in the corruption scandals.  Although the court expressed reservations as to whether the bans on these individuals were in fact “closely drawn,” it decided that it should give the legislature leeway to define broadly the category of individuals who might be used as a conduit or means of circumventing the ban on contractor contributions.  It justified this decision on the grounds that “the recent corruption scandals in Connecticuthave shown that contractors are willing to resort to varied forms of misconduct to secure contracts with the state.” Turning to the ban on lobbyist contributions, the court observed that this prohibition was “markedly different” because “the recent corruption scandals in Connecticut in no way involved lobbyists.”  It therefore concluded that “there is insufficient evidence to infer that allcontributions made by state lobbyists give rise to an appearance of corruption.” It acknowledged that the public may distrust the lobbyists because of the perception that they wield undue influence over public officials.  However, the court rejected the proposition that such influence amounts to corruption: Influence and access, moreover, are not sinister in nature.  Some influence, such as wise counsel from a trusted advisor—even if that advisor is a lobbyist—can enhance the effectiveness of our representative government. Accordingly, the court held that the ban on lobbyist contributions was not “closely drawn” and therefore violated the First Amendment. The court’s differing treatment of contractors and lobbyists illustrates the vagaries of an “appearance of corruption standard.”  The court allows the public to jump to the erroneous conclusion that small contributions by contractors or prospective contractors are corrupting because some such entities have actually corrupted state officials in the past (albeit not through small contributions).  The court will also allow the public to jump to the erroneous conclusion that small contributions by principals or family members of contractors are indirect means of corruption, even though there is little or no evidence of such indirect means being used in the past.  But the court will not allow the public to jump to the erroneous conclusion that small contributions by lobbyists (or lobbyists’ families) are corrupting because, unbeknownst to the public, what it perceives as corruption is merely influence-peddling. It is worth noting that the Second Circuit’s ruling with respect to lobbyist contributions is in considerable tension with the Fourth Circuit’s 1999 opinion in North Carolina Right to Life v. Bartlett,  where the court upheld a North Carolina statute prohibiting lobbyists from contributing to state legislators while the legislature was in session.  Although the cases are distinguishable on the grounds that the North Carolina ban was much narrower than the one in Connecticut, the Fourth Circuit recognized a compelling state interest in preventing corruption and the appearance of corruption in restricting lobbyist contributions.  In doing so it explicitly rejected the notion that it needed to wait for a specific North Carolinascandal: While lobbyists do much to inform the legislative process, and their participation is in the main both constructive and honest, there remain powerful hydraulic pressures at play which can cause both legislators and lobbyists to cross the line. State governments need not await the onset of scandal before taking action. Thus, the court rejected the First Amendment challenge to North Carolina’s (more limited) ban on lobbyist contributions.

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Still More on the Byrd Vacancy

State officials in West Virginia disagree as to when state law permits or requires a special election to fill a vacancy in the office of U.S. Senator.  The Secretary of State believes that current law requires the election to be held in November 2012, while the Attorney General believes that the law permits, if not requires, the election to be held in November 2010.   

            In light of this disagreement, the Governor has proposed legislation that would “clarify” state law with regard to vacancies.  Specifically, with respect to Senate vacancies, the proposed legislation would require the Governor to proclaim a special election whenever the unexpired term equals or exceeds two years and six months.  If the vacancy occurs one hundred and twenty days or more before the next general election, the Governor would be required to set the special election on the general election date.  If the vacancy occurs less than one hundred and twenty days before the special election, the Governor can set any special election date, as long as it is not within sixty days, and no more than one year from, the occurrence of the vacancy.  In addition, the Governor is required to set a special primary election, which may not be within sixty days of the special election. 

In the meantime, the Governor has named a temporary appointee for the vacant office.  (Although I have not seen the formal certificate of appointment, the Governor presumably has executed or will execute such a certificate by next week, when the appointee’s credentials are apparently to be presented to the Senate). 

These machinations raise a couple of interesting questions.  First, can the Governor properly appoint a temporary Senator before issuing a writ of election setting the date of the special election?  The language of the Seventeenth Amendment arguably implies that the writ of election comes first, a reading suggested by the following language from the Seventh Circuit’s discussion of the Obama vacancy in Illinois: “The principal clause [of the Seventeenth Amendment] describes a chain of events: when a vacancy happens, the state executive issues a writ of election, which calls for an election in which the people will fill the vacancy. The proviso qualifies this chain of events by permitting an appointee to intercede temporarily between the start of the vacancy and the election that permanently fills that vacancy.” 

Second, if the Governor makes an appointment in accordance with state law, can the legislature subsequently change the date on which the special election is to occur?  Extremely alert readers will recall that this issue arose in connection with the Obama vacancy.  After Governor Blajojevich appointed Roland Burris to fill the vacancy, the Illinois legislature discussed changing the law to require a special election to be held earlier than the date provided by existing law.  Burris argued that such a change would be unconstitutional and threatened to fight it in court.  As I discussed at the time, a post-appointment change in the election date may be unprecedented and presents serious constitutional issues.

If the West Virginia legislature were to adopt the law proposed by the Governor, the Governor would be required to set a special primary election at the very beginning of September, and the special election would be held on the general election date in November.  This is on the assumption that the Byrd vacancy occurred on June 28 (the date of his death), which would be more than one hundred and twenty days before the general election (127 by my count).  Of course, it is arguable that this result is the same as was required under pre-existing law, in which case the second constitutional issue would not arise.

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West Virginia Attorney General Disagrees with Secretary of State on Byrd Vacancy

           The West Virginia Attorney General has issued this opinion rejecting the Secretary of State’s legal conclusion that a special election to fill the Byrd vacancy cannot be held until November 2012.  The Attorney General’s reasoning is essentially the same as what I suggested in these prior posts (see here and here), namely that the West Virginia legislature’s evident intent to require a special election when to fill a vacancy with an unexpired term of more than two years and six months, combined with the Seventeenth Amendment’s purpose of ensuring popular election of Senators, requires reading the ambiguous provisions of West Virginia law so as to allow the calling of a special election as soon as possible.  The Attorney General also distinguishes the Robb v. Caperton case on the grounds that it dealt solely with state judicial offices.

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Recess Games

           The Obama administration announced this week that the President will give a recess appointment to Donald Berwick to serve as administrator of the Centers for Medicare and Medicaid Services.  The appointment will come during the Senate’s current eleven and a half day adjournment for the Independence Day holiday. 

            Berwick was nominated for the position in April, but the Senate Finance Committee has yet to schedule a hearing on the nomination.  The recess appointment was denounced not only by Senate Republicans, but by Committee Chair Max Baucus (D-Mont.), who stated: “Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power and protects Montanans and all Americans by ensuring that crucial questions are asked of the nominee — and answered.” 

            The Recess Appointments Clause (U.S. Const., art. II, sect. 2, cl. 3) provides: “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”  This provision raises two basic interpretative issues: (1) what constitutes “the recess” of the Senate referred to in the clause? and (2) what does it mean for a vacancy to “happen during” such a recess? 

            A number of legal scholars have argued that “the recess” referred to in the clause is the recess between sessions of Congress, which normally occurs only once a year.  The intrasession periods of adjournment are not recesses within the meaning of the clause, they argue, and the President has no constitutional power to recess appoint anyone during those periods.  In addition, some scholars argue that a recess appointment can only be made if the vacancy has arisen during that recess.  A vacancy that has occurred earlier did not “happen during” that recess, and therefore is not eligible for a recess appointment.  Professor Michael Rappaport laid out these two arguments in his article, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. Rev. 1487 (2005).   

            If either of these arguments is correct, President Obama’s appointment of Berwick is unconstitutional.  I will leave consideration of the merits of these arguments for another day.  For present purposes, I would just note that one of the foremost academic supporters of the Rappaport position is Marty Lederman, formerly a law professor at the Georgetown University Law Center.  Lederman was outspoken in criticizing President Bush’s recess appointments on the grounds that they violated the Recess Appointments Clause as properly interpreted.  Lederman, for example, was on the legal team that filed a brief (on behalf of the late Senator Edward Kennedy) challenging the constitutionality of Bush’s recess appointment of Judge William Pryor to the Eleventh Circuit Court of Appeals. 

            In addition, Lederman criticized Bush’s recess appointments on the grounds that, regardless of whether they complied literally with the Clause, they constituted abuses of the recess appointment power because they were designed for no purpose other than to circumvent the Senate’s advice and consent function.  For example, Lederman argued that recess appointments made during an eleven and a half day Senate adjournment were  obviously not for the purposes intended by the Clause, namely to deal with emergencies where the Senate was unavailable to provide its consent.  Instead, he contended that such appointments “make a mockery of the procedure contemplated in the Appointments Clause” and represented “constitutional cynicism of the highest order.” 

            Lederman now serves as Deputy Assistant Attorney General for the Office of Legal Counsel.  Which naturally raises the question—has he advised Obama that Donald Berwick is unconstitutional?

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The Governor Weighs in on the Byrd Vacancy

            The Governor of West Virginia, apparently not entirely satisfied with the Secretary of State’s determination that the Byrd vacancy cannot be filled by a special election until November 2012, has asked the Attorney General to opine on the question of when such an election is to take place.  The Governor’s letter notes that “[t]he issue of when such an election may lawfully occur raises questions of law that, when examined by persons of sound legal training and experience, may be answered in a way that reasonably calls into question the constitutionality or legislative intent of the law.” 

            I am not sure exactly what that means, but I interpret it as saying that the Secretary of State’s legal determination, while not unreasonable, is arguably in conflict with the intent of the West Virginia legislature, as well as with the requirements of the U.S. and West Virginia Constitutions.  If that is what he means, I agree with the Governor.

 

 

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The West Virginia Secretary of State Refuses to Hold a Special Election in 2010

           The West Virginia Secretary of State has taken the position that the special election to replace Senator Byrd will not occur until November 2012.  She relies on Robb v. Caperton, a 1994 West Virginia Supreme Court case which applied the same vacancy statute in the context of a judicial vacancy. 

            Robb does provide support for the Secretary’s statutory interpretation, but there are questions whether the court’s reasoning should be extended to the current situation.  In Robb, a circuit judge resigned on April 20, 1994, leaving an unexpired term that would last until December 31, 2000.  The question was whether the vacancy should be filled by election in November 1994 or in November 1996.   

            The court began its analysis with the West Virginia Constitution.  It found the general vacancy provision of Section 7, Article IV, which was “keyed to ‘the next general election,’” inapplicable to judicial vacancies because the latter were governed by the more specific and detailed provision of Section 7, Article VIII.  Under Article VIII, the Governor is directed to fill a judicial vacancy without any election if the unexpired term is less than two years or, if so provided by law, no more than three years.  For vacancies of more than three years, the Governor is directed to issue a directive of election to fill the vacancy “in the manner prescribed by law,” and, in the meantime, to fill the vacancy by appointment. 

            The court found the phrase “in the manner prescribed by law” critical to the analysis of when an election to fill a judicial vacancy should take place.  The court held that “[i]t is clear under W.Va. Code, 3-10-3, the governor has the ability to fill a vacancy in the office of a supreme court justice or a circuit judge until a successor has ‘timely filed a certificate of candidacy, [and] has been nominated at the primary next following such timely filing[.]’”  Since the date for filing a certificate of candidacy had passed in early February, the court concluded that the election to fill the vacancy could not be held until November 1996. 

            The statutory language construed by the court is the same language that applies to filling vacancies for other offices, including that of U.S. Senator.   Given that the court thought this language was “too plain” to be interpreted as requiring an election in November 1994, the Secretary would seem to be on solid ground in reaching a similar conclusion with regard to the Byrd vacancy.  Nevertheless, the Robb court’s conclusion was fundamentally premised on the language of Section 7, Article VIII of the West Virginia Constitution, which applies only to judicial vacancies.  Moreover, the court appeared to assume that vacancies in non-judicial offices were required to be filled, under the provisions of Section 7, Article IV, at the next general election, notwithstanding the fact that such offices were governed by the same statutory language.  It is therefore uncertain whether the reasoning of the Robb case should apply here. 

            If the statutory language is construed as the Secretary of State suggests, the results are perplexing, if not absurd.  It is hard to see why the legislature would have chosen a two year and six month cutoff for holding elections, if the intent had not been to have a special election to fill the last two years of the term in question.  When asked about this at her press conference, the Secretary of State was unable to offer an explanation of a legislative policy that might be advanced by this result.    

            Finally, the Secretary of State’s interpretation of the statute is, at best, in considerable tension with the fundamental policy of the Seventeenth Amendment, namely that Senators be elected by the people.  There would seem to be ample grounds for mounting a legal challenge.