UPDATE: 5:25 P.M.: Not long after the piece below was posted, New Jersey Gov. Chris Christie announced that the Senate seat left vacant by the death of Sen. Frank Lautenberg would be filled by a special election on October 16, a little less than three weeks before the regularly scheduled state election in which he will be seeking re-election. Christie's political enemies are making much of the fact that this schedule means that Democratic voters, motivated to keep the Senate seat in their party's hands, will be drawn to the polls by the earlier vote, making Christie's task of seeking re-election easier. My knowledge of New Jersey politics (I say without regret) is insufficient to allow me to evaluate that claim. But what I will say is that, for the reasons set forth in the piece below, a decision to hold a special election as soon as possible is the one most faithful to the spirit and letter of the Seventeenth Amendment. Though the election in the fall is not an election next week, and Christie will be appointing an interim senator, this months-long interim appointment is much more in keeping with our current understanding of Constitutional requirements than an appointment lasting for the duration of the late Senator Lautenberg's term, without a special election at all. It may be that Christie is that rarest of American phenomena, a politician who finds that honoring the Constitution is also in his own best interests. If so, my hat is off to him.
A Senate seat, as the immortal Rod Blagojevich once remarked on tape, is a "f***ing valuable thing, you don't just give it away for nothing."
The latest lucky governor to "have" a seat to "give away" is New Jersey's Chris Christie, who must now appoint a successor to his arch-enemy, Senator Frank Lautenberg. The media are abuzz with speculation about how Christie will manipulate his gift to his own best advantage. The story is made more complicated by the fact that the New Jersey Legislature, in its wisdom, passed a statute in 2011 that directly contradicts itself. If Christie follows one provision of the statute, the temporary senator he appoints will serve until the end of this year; if he follows another, the "temporary" term will extend until January 2015 -- the end of Lautenberg's term.
The politics of this are considered all important, of course. If the new senator serves the shorter term, the election for his successor will take place at the same time as Christie's own attempt at re-election, thus possibly drawing undesirable voters to the polls.
But this drama involves more than Christie's own towering ambition. The New Jersey legal snafu stems from what seems to have been a careless error in the drafting of the Seventeenth Amendment. If we take reading the Constitution seriously, even the flawed text of that Amendment points to the correct answer to Christie's dilemma.
Here are the relevant parts of the Amendment:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. 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.
The Seventeenth Amendment is one of the great achievements of small-d democratic activism in American history. Until its ratification in 1913, senators were appointed by the state legislatures, whose members often simply auctioned the office to the most generous millionaire. For twenty years, Progressives and Populists denounced the system of election-by-crony. In the end, popular wrath at what muckraking reporter David Graham Phillips christened "The Treason of the Senate" was so great that two-thirds of the Senate voted to put themselves out of business, and the states ratified in near-record time.
Much of the congressional debate about wording centered on the second sentence, which meant that anyone who could vote for House members could vote for senators. Southern senators stalled the bill and tried to extort a change in the language that would allow them to limit voting for the Senate to whites only. All but unnoticed in the fracas was the language governing how states should handle a Senate vacancy.
In the 1787 Constitution, senators could only be chosen by legislatures; but legislatures were often not in session. So Article I § 3 cl. 2 stated that, when a vacancy arose "during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." But because the House was and is elected by the people, no appointment is ever permitted: when a House seat falls vacant, "the Executive Authority thereof shall issue Writs of Election to fill such Vacancies."
The earlier language about appointment seems to have been written into the new amendment without much discussion. (If there was any, I couldn't find it in the record.) But its logic is flawed: Senators now represent the people, and "writs of election" can be issued for Senate, as well as House, elections. The ambiguous new language allows the legislatures if they choose to empower their governors to make "temporary appointments until the people fill the vacancies by election as the legislature may direct."
A large number of states simply permit the governors to appoint a replacement until the next regular election -- or, as New Jersey does, to do so when the calendar makes it inconvenient to hold a special election sooner. Four states, including my beloved Oregon, forbid the governor to make any appointment. Instead, a Senate vacancy is treated like a House vacancy, filled only by a special election held as soon as possible.
The Senate is now as much "the people's house" as the House, and there's no reason to allow the governor to interpose his individual choice between the people and their senate seat. Nonetheless, the language permits that. But it requires something else--that the appointment be "temporary." If, as in the New Jersey case, the appointee may serve the entire unfilled term of the departed senator, that appointment is in no sense "temporary." Lautenberg's elected, "permanent" term ends in January 2015. If we give ordinary sense to words, a "temporary" appointment can't include the entire remaining term.
In 2008, Barack Obama vacated his seat with a little over two years left in his term. Using Illinois law, Blagojevich awarded that seat to Roland Burris; but, I am proud to say, Burris did not serve the entire remainder of Obama's term.
A team of lawyers (I was a consultant) brought a lawsuit against the Governor of Illinois demanding a special election. (By this time, Blago had toddled off prisonwards, and his replacement was Pat Quinn.) The Seventh Circuit, in an opinion by Judge Diane Wood, agreed: "Our analysis of the Seventeenth Amendment led to the conclusion that a state must hold an election each time that a vacancy occurs in its Senate delegation, so that the people of the state can elect a replacement senator. To ensure that such an election takes place, the executive officer of the state is required by the Constitution to issue a writ of election." By that time, the case had dragged on so long that there was very little time remaining in the term. Nonetheless, Election Day 2010 saw two elections on the Illinois ballot -- one for the upcoming six-year term and one for the 62 days remaining on Obama's term. It may seem silly, but it made Senator Mark Kirk senior to the other members of the Class of 2010.
Of course, New Jersey is in the Third Circuit, not the Seventh; and in fact, an earlier New York case about the timing of the election to replace Sen. Robert F. Kennedy (D-NY) had held the opposite. (For complicated reasons, its effect as precedent is questionable.)
But Christie and his lawyers are in a unique position: They must choose between two directly conflicting statutes. One would follow the Seventh Circuit approach. The other would permit the appointee to serve Lautenberg's entire term.
Constitutional stewardship would be best served by choosing the statute that accords with the wording of the Seventeenth Amendment.
But now that we've had a good laugh over the idea of stewardship, let's see which statute Christie believes will best advance his own and his party's fortunes. Political advantage, to most politicians, is the only point of a senate, after all. They tend to phrase the thought more elegantly than Blago did, but the meaning is the same.
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