A Seventeenth Amendment Problem in Illinois

           Today’s events in Illinois raise some really interesting questions under the Seventeenth Amendment.  This amendment established popular election of Senators (who previously were elected by state legislatures) and made the following provision for filling of vacancies: 

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. 

Acting pursuant to this authority, the Illinois legislature has provided that “[w]hen a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.” 

            Thus, when Barack Obama resigned his Senate seat in November (having decided to pursue other opportunities), the Governor of Illinois was empowered to make a temporary appointment until the general election of 2010.  Unfortunately, it appears that Governor Blagojevich may have decided to sell the vacant seat to the highest bidder, something frowned upon by Patrick Fitzgerald, U.S. Attorney for the Northern District of Illinois and notorious goody two-shoes. 

            Anyway, the Illinois legislature now intends to meet next week to pass a bill providing for a special election to fill the vacancy.  Presumably, this law will also take away the Governor’s authority to make temporary appointments.  If the law were to pass before the Governor took any action on the vacancy, I would guess that it would be effective.  After all, nothing in the Seventeenth Amendment would seem to prohibit a legislature from exercising its authority after a vacancy has occurred. 

            On the other hand, if Blagojevich were to make a temporary appointment before a new law is passed, the appointment would be valid, and it seems unlikely that anything in the new law could undo the appointment.  State legislatures do not have the authority to recall or remove U.S. Senators.  It is conceivable that the Senate could refuse to seat Blagojevich’s appointment, but it is not apparent that it would have a legitimate constitutional basis to do so.  Assuming that the Senate’s authority to judge elections extends to judging appointments, it could reject the appointed Senator only if the appointment itself were tainted by fraud or corruption.  The fact that Blagojevich himself is (allegedly) a crook would not be enough.  (Were Blagojevich to appoint himself, however, the Senate would have an arguable basis for refusing to seat him, and could certainly proceed against him under the Disciplinary Clause.) 

            The more difficult question is whether the Illinois legislature could shorten the term of the appointed Senator by moving up the time of the election.  On its face, the text of the Seventeenth Amendment does not prohibit this.  But one could argue that the Seventeenth Amendment provides for a temporary appointment to serve for a specific period identified by the legislature, and that once the appointment is made the Senator has a vested right to serve for that period.  Otherwise, the legislature would retain a power over the appointed Senator, and could shorten the term if it disapproved of his or her service.  As far as I know, this would be a question of first impression. 

            Finally, it should be noted that Blagojevich retains a significant amount of power with regard to any legislative attempt to amend the law.  Although the Seventeenth Amendment gives the legislature power with regard to filling vacancies, it is established that this power does not displace the role that may be played by the state executive in enacting legislation.  Thus, any new law must be presented to the Governor, as required by the Illinois Constitution, who may consider it for up to 60 days before deciding whether or not to veto it.  In short, unless Blagojevich decides to heed calls for his resignation, this could go on for awhile.

A Seventeenth Amendment Issue in Alaska

           Following Senator Stevens’s conviction yesterday, the Anchorage Daily News has spotlighted an interesting issue that would arise in the event Stevens were to resign.  Evidently the Alaska Legislature passed a law in 2004 which allowed the Governor to make a temporary appointment to fill a Senate vacancy pending a special election to fill the seat.  However, later in 2004 the voters approved a ballot initiative which purports to take away the temporary appointment power. 

            Under the Seventeenth Amendment, “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.”  The issue, then, is whether the power granted by the Seventeenth Amendment can be taken away from the state legislature by some other state authority, in this case the voters by ballot initiative. 

            I have not done exhaustive (or even tiring) research on the issue.  It appears, though, that Supreme Court cases on state legislative action regarding the time, place and manner of federal elections would be relevant here.  Although the Constitution provides that regulations on time, place and manner “shall be prescribed in each State by the Legislature thereof,” the Court has held that this does not pre-empt state constitutional provisions that limit a state legislature’s lawmaking authority, such as provisions that a billed passed by the legislature may be vetoed by the Governor, Smiley v. Holm, 285 U.S. 355 (1932), or may be negated by a referendum, Davis v. Hildebrant, 241 U.S. 565 (1916).    

            However, there is an important distinction between the Alaska situation and those considered in Smiley and Davis.  In those cases the question was whether to give effect to a legislative action that, under state law, had never become legally effective.  In Alaska, on the other hand, the question is whether to give effect to a ballot initiative, passed without any involvement of the legislature, and which supersedes a law previously passed by the legislature.  In other words, Alaska case raises the novel (as far as I know) question of whether the powers delegated by the Seventeenth Amendment to the state “legislature” can be exercised without any involvement of the actual legislature.