Senator Kirk and the Constitutionality of Expedient Law Switching

[Bricker]

The title of this OP is shamelessly stolen from the blog of Professor Michael Dorf of Cornell University’s School of Law.

As is the subject.

Basically, Prof. Dorf lays out the sequence of events in Massachusetts from 2004 to now: fearful of the possibility of a Republican governor appointing Senator Kerry’s replacement if he won the Presidency, the overwhelmingly Democratic Massachusetts legislature changed the law to mandate a special election, instead of a gubernatorial appointment, to fill a vacant Senate seat.

This year, with the death of Senator Kennedy, the overwhelmingly Democratic legislature, now dealing with a Democratic governor, changed the law again to permit an appointment, so that a new senator could be seated immediately and not have to wait for the special election.

Dorf says:

Let’s consider the general phenomenon of expedient law switching. Suppose that an ordinance in the small town of Racistville provides that “no building permits shall be granted for any structure to be erected within 100 feet of the shore of Racist Lake.” Now suppose that whenever a white landowner seeks to build a lakefront house, the town council convenes and repeals the ordinance, whereupon a permit is granted by the mayor. Immediately thereafter, the council re-enacts the ordinance (which applies only prospectively), and does not re-repeal the re-enacted ordinance when non-white landowners want to build by the lake. In this example, the “real” law in Racistville is “no building permits shall be granted to non-white property owners for any structure to be erected within 100 feet of the shore of Racist Lake.” And this “real” law would be a violation of the constitutional requirement of equal protection.

He goes on to ask what the real law is in Massachusetts, and proposes two hypotheticals:

[ul]
[li]Democratic but not Republican governors can appoint interim Senators to fill vacancies pending a special election[/li][li]When the governor is a member of the same political party as a Senator whose seat has become vacant, the governor can appoint an interim Senator to fill a vacancy pending a special election.[/li][/ul]

Dorf suggests that the first interpretation, if true, is a violation of Equal Protection guarantees; the second, he says, is not nearly as problematic.

I could continue paraphrasing him, but he writes much better than I, and I urge interested readers to simply click and read his post in full.

But: I think he’s right insofar as interpretation one. And i think that proving it or imposing a judicial remedy is essentially impossible.

[John_Mace]

Are Republicans a suspect class? What level of scrutiny does a law get when it seems to affect a political group?

[Don_t_Call_Me_Shirley]

I’m a pretty solid democrat, and I thought what the legislature did was total horseshit. People need to remember that their party is not going to be in power forever. Even in Massachusetts.

[ElvisL1ves]

@Bricker

Dorf suggests that the first interpretation, if true, is a violation of Equal Protection guarantees

What makes you think it’s true?

And i think that proving it or imposing a judicial remedy is essentially impossible.

How about defining the problem first?:dubious: Don’t forget to include in your analysis the problem of a governor being able to appoint a replacement of a different party than that which the people chose in the last election, thereby overruling them to gain an unearned and antidemocratic partisan advantage. Without that consideration, your “argument” is no more than partisan pouting. Unfortunately it seems to be missing in your OP, obviously by a mere oversight on your part, of course.

Also please include your problem statement a mention of the people’s right to have a vacancy filled both quickly and democratically. And, please provide an assessment as to why you believe the electoral replacement law will be replaced by an appointee law at any point, considering that there is no precedent for that in any other state.

Shirley, I think they screwed up the last time by not simply requiring a replacement appointee to be of the same party, as is the case in a number of other states. Going for a special election served the cause of democracy instead, but didn’t go far enough. This time, I think they came up with the best prodemocracy solution.

Don’t you think the 2004 law was to *prevent *a partisan hijack?

[wonky]

I too think that the Massachusetts Legislature seems to have created a law pretty equivalent to the Racistville law, though now that things are back to where they started, if they never touch it again I will think it’s fine. It shouldn’t have been changed to start with, so I didn’t mind the change back, but were I a Massachusian I would strongly object if they wanted to tamper with it again.

ETA: “Fine” sounds too strongly in favor. I will think it’s tolerable so long as they never touch it again.

[ElvisL1ves]

@jsgoddess

though now that things are back to where they started

They aren’t, not at all. Where did you get that idea? The pre-2004 law let the Governor make the permanent appointment. Now that’s by special election, and there can be a temporary caretaker, of the same party as the previous occupant, appointed by the Governor for a term of the few months up to the special election.

Were you and Bricker just not aware of the special-election part of either law?

It shouldn’t have been changed to start with

I’m curious why anyone would think that putting the selection of Senators in the hands of the people is not a good thing.
This, like too many subjects about elections, has been framed in terms solely of it being about partisan advantage, and not about what is best for democracy. Before the 2004 law, there was an opportunity for the governor to affect the power balance in the US Senate by himself, over the wishes of the people who had chosen a Senator of perhaps a different party than the Governor. Did that not make our democracy better?

Before the 2009 law, a vacancy would have existed for long enough to, again, affect the power balance in the US Senate, this time via an event the people could not have foreseen in the last election. Did that change too not make our democracy better?

[YogSothoth]

Its about time Dems started fighting back using the same dirty tactics Reps have used for years (putting out arrest warrants for Dem legislators in order to get them into the floor for a quorum, filibustering everything Dems put out instead of doing so in good faith, threatening to use the nuclear option when they don’t get their way, etc)

As long as it puts a Dem into the Senate, I don’t care how Massachusetts do it. They could change the law to “Only Dems can replace a senatorial vacancy” for all I care.

[ElvisL1ves]

Hmm… OK, jsgoddess, I think I see. You trusted Bricker to provide all relevant facts in his summary. That, you should know, is never a wise thing to do.

He refers to Kirk simply as “the replacement”, not noting that he will only be that until the special election in mid-January, or noting that there will even be a special election. So the kindest conclusion one could draw would be that Bricker must be absolutely trusting of some partisan blogger to provide all relevant facts, unaware of or interested in any other reporting on the subject whatever. He just couldn’t be deliberately presenting a fact-filtered case just to support a whine about his party not getting filibuster power back, democracy be damned, could he?

[ElvisL1ves]

@YogSosoth

As long as it puts a Dem into the Senate, I don’t care how Massachusetts do it. They could change the law to “Only Dems can replace a senatorial vacancy” for all I care.

Gotta part ways with you on that, sorry. There are still some of us who think this democracy stuff is important.

[wonky]

@ElvisL1ves

They aren’t, not at all. Where did you get that idea? The pre-2004 law let the Governor make the permanent appointment. Now that’s by special election, and there can be a temporary caretaker, of the same party as the previous occupant, appointed by the Governor for a term of the few months up to the special election.

Ah, you’re right. I was thinking the original law was gubernatorial selection then special election.

[Robot_Arm]

@Bricker

He goes on to ask what the real law is in Massachusetts, and proposes two hypotheticals:

[ul]
[li]Democratic but not Republican governors can appoint interim Senators to fill vacancies pending a special election[/li][li]When the governor is a member of the same political party as a Senator whose seat has become vacant, the governor can appoint an interim Senator to fill a vacancy pending a special election.[/li][/ul]

Highly partisan, highly visible, and probably nothing to be done about it. Is it signifigantly different than gerrymandering? Both parties have used that tactic before.

What about laws passed by the current two parties that favor the two-party system. When Ross Perot made a big show about getting on the presidential ballots in all fifty states, I wondered who was out gathering signatures for the Democrats and Republicans. Nobody; they qualify automatically. (I think it has to do with receiving a certain percentage of the vote in the previous election, and varies by state.) Some of the state deadlines had passed before they even selected a nominee. The two parties have jointly given themselves an advantage over any third party, and nobody bats an eye.

[elucidator]

I’m a big fan of moral parity, the balancing of the ying-yang, karma. When the Pubbies have power (as recently demonstrated), they behave with sublime indifference to any such civic considerations, they grasp for power by means legitimate, illegitimate, and downright illegal.

Balance. If the Dems run totally roughshod over the Pubbies, ride 'em and spank 'em for a couple of years, three maybe, then the balance may be restored.

The Pubbies bluffed, and got called. They refused any accomodation to the facts, and dared the Dems to commit a sordid and partisan act. The Dems called, they rake in the pot and now the Pubbies play the only card they got: they blubber the tears crockidilian of the dreadful display of corruption and immorality, the little drops splashing on their freshly-starched communion dress.

C’mon. Who’s kidding who, here?

The point of such legal formalities is to protect the will of the people, no? Does anyone seriously doubt that the will of the people of Massachussets is to have a Dem take Kennedy’s seat?

If an action be perfectly legal and thwarts the will of the people, it is not legitimate. By the same token, if an action manifests that will, it carries a legitimacy. The Pubbies could have avoided this outcome by shrugging and accepting the inevitable, maybe pick up a small bargaining chip, maybe win Miss Congeniality, something like that.

But they made a fight out of it hoping for just this result, perhaps in their mind this balances out trying to corrupt the Justice Dept, I dunno. But now they get to piss and moan, bitch and perform about this travesty yadda-blah, yadda-blah…

Feh! as they say in Lubbock.

[Simplicio]

The legislature was using a power explicitly granted to them by the 17th Amendment. It seems unlikely that a process laid out in the Constitution is unconstitutional. Sorta like asking if the age restriction on running for President violates equal protection through age-discrimination.

[Frank]

@Bricker

But: I think he’s right insofar as interpretation one. And i think that proving it or imposing a judicial remedy is essentially impossible.

I submit that the legislature saw and fixed a flaw in the existing law. That flaw would require that the seat go unfilled for some months. The special election piece of the law was not revoked; the change merely enables the appointment of a temporary Senator.

[kaylasdad99]

@Frank

I submit that the legislature saw and fixed a flaw in the existing law. That flaw would require that the seat go unfilled for some months. The special election piece of the law was not revoked; the change merely enables the appointment of a temporary Senator.

It seems uncomfortably coincidental that the flaw was noticed only after five years had passed.

That said, I’m not invested enough yet to read and digest the OP. In order to assist me in knowing if this is more than an academic exercise, could someone please clarify whether the action has been challenged?

[Hirundo82]

Some states require that the appointed replacement be of the same party as the person they replace (cite). I think that makes the most sense of all the schemes for appointing a replacement while upholding the will of the people (such as it was at the time of the last senatorial election).

[Gangster_Octopus]

Well, I suppose the Republicans could try and win elections.

[Frank]

@kaylasdad99

It seems uncomfortably coincidental that the flaw was noticed only after five years had passed.

Lots of times flaws aren’t noticed until the situation occurs. People are not, after all, omniscient.

Now mind you, the next time Massachusetts has a Republican governor and a possible vacancy in a Senate seat held by a Democrat, the legislature tinkering with the law again would do a lot to persuade me away from my position.

[Mr.Moto]

@Frank

Lots of times flaws aren’t noticed until the situation occurs. People are not, after all, omniscient.

Now mind you, the next time Massachusetts has a Republican governor and a possible vacancy in a Senate seat held by a Democrat, the legislature tinkering with the law again would do a lot to persuade me away from my position.

So, on Wednesday [6/23/04], the State Senate voted, almost entirely on party lines, to change the nearly century-old electoral rules and call for a special election to a Senate seat that would take place from 145 to 160 days after an incumbent senator decides to step down. In Mr. Kerry’s case, should he win the presidency, that would mean an election would be held for his seat in March or April 2005, instead of in November 2006 under the current system. Mr. Kerry’s term actually expires in 2008.

The Senate also voted that the governor could not make an interim appointment. Mr. Kerry, if elected president, would hold his Senate seat until his inauguration in January, and then, under the Senate bill, his seat would be vacant for up to three months until the special election.

Cite.

So the notion that this was an unforseen circumstance is laughable. When this farce was passed in 2004, Republicans offered an amendment providing for an interim appointment by the governor. It was rejected along party lines.

So Democrats were at the time relatively unconcerned about a three month period of reduced representation - even when that possibility was pointed out to them. Some of them owned up to that in debate on the current bill, stating that past positions shouldn’t bind them when the good of the Commonwealth is at stake.

Also - this notion that this was done to introduce the reform of an appointment being of the same party as the officeholder leaving the vacancy? Would someone provide a cite for that? Because nothing I have seen indicates that this is a feature of this legislative change in Massachusetts.

The problem is that behavior like this leads reasonable people to wonder whether they define the good of the Commonwealth in strictly partisan terms.

[Frank]

@Mr.Moto

So the notion that this was an unforseen circumstance is laughable. When this farce was passed in 2004, Republicans offered an amendment providing for an interim appointment by the governor. It was rejected along party lines.

OK, I didn’t know that. That helps change my position.

Also - this notion that this was done to introduce the reform of an appointment being of the same party as the officeholder leaving the vacancy? Would someone provide a cite for that? Because nothing I have seen indicates that this is a feature of this legislative change in Massachusetts.

I haven’t either. This would have been - by far - the cleanest and neatest solution. Many states have such a law.