The Democrats have had another hard week. On Monday, they learned that Beau Biden, son of the vice-president, has discreetly chosen not to run for the Senate seat they'd been keeping warm for him. Thus one more Senate seat the Democrats had thought of as safe is up for grabs in the fall. This comes after the loss of Ted Kennedy's seat in Massachusetts and amid a growing sense that even President Obama's old seat in Illinois could fall in November to a Republican, Mark Kirk.
Democrats may have shot themselves in the foot three times, each time by trying to game the Constitution. For those of you scoring at home, the 17th Amendment, passed in 1913, took the power to choose senators away from state legislators and gave it to the voters. It begins, "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years."
But it took 30 years for popular election to overcome the resistance of the political class, who would usually rather appoint than elect. (Southern states unsuccessfully demanded a change to exclude blacks from voting in Senate elections.) During that process, the amendment picked up some flaws. As finally passed, it says that "the executive authority of such State shall issue writs of election to fill such vacancies." This is the precise language that governs House seats, which are filled in special elections as soon as possible. But the drafters added, "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."
This sounds deceptively like the 1787 provision allowing temporary Senate appointments. But those appointments were allowed only "until the next Meeting of the Legislature." The new language had no "until" clause. And therefore many state legislatures granted the governor power to name a temporary replacement to serve until an election was convenient. Today, in many states, an appointee may legally serve for up to 30 months.
Most states also allow the governor to make the appointment on his own. As near as I can tell, this is the only place in the Constitution where important federal office is made the gift of one man, without the need for confirmation or election. Under similar circumstances, the Emperor Caligula named his horse consul of Rome. We're not there yet, but close. Two governors have named their own wives to the Senate. Gov. Frank Murkowski of Alaska appointed his daughter in 2002 (in response, voters approved a measure eliminating the governor's appointing power). New York Gov. David Paterson flirted with gifting Caroline Kennedy with Hillary Clinton's seat, before bestowing it on the obscure Kirsten Gillibrand.
But what's worse is that the legislators have so much discretion. They can require special elections, or they can give temporary appointing power to the governor, or they can do both.
And they can rewrite the rules anytime they want.
This gives politicians a lot of angles to play. In Illinois, the now-impeached Gov. Rod Blagojevich memorably remarked that a Senate seat "is a f***ing valuable thing, you just don't give it away for nothing." His pathetic choice, Roland Burris, has so badly embarrassed himself that he will not be a candidate for reelection.
But Illinois Democrats consciously allowed this to happen. While Blagojevich did everything but advertise the seat on eBay, the Illinois legislature considered stripping him of the power of appointment. Democrats in Springfield were nervous about who might win a special election, and so the measure died. Let Blago name a time-server, and then win the seat in 2010. That plan has now blown up in their faces. It serves them right.
In Delaware, Democrats tried a three-cushion shot. Beau Biden, the attorney general, was the "rightful" heir to his father's seat. But Biden, a National Guardsman, was shipping out for a year in Iraq. So Democratic Gov. Ruth Ann Minner found Ted Kaufman, a nondescript Biden family retainer, to keep the seat warm. Kaufman is smart and decent but utterly without voter appeal. A strong appointee might be a plausible candidate for the seat this year. Now that Biden has shied away, the party has fallen into a pit it dug for itself.
In Massachusetts, the Democrats dug pits over and over. Until 2004, Massachusetts state law allowed an appointed senator to serve until the next election in an even-numbered year. This would have meant that Kennedy's replacement would have served until January 2011. But Democrats then became concerned that John Kerry would be elected president and that his replacement would be chosen by Republican Gov. Mitt Romney. They rammed through (over Romney's veto) a bill barring any appointment and requiring a special election within 160 days of the vacancy.
Fast-forward to 2009. Fretting that a delay for special election would cost the Democrats their 60th vote on health care, the legislature redid the law yet again. This time, with a Democrat in the State House, it allowed a temporary appointment until the special election. Gov. Deval Patrick appointed another colorless technocrat, Paul Kirk; Democrats nominated the wretched Martha Coakley; and the rest is history.
If Democrats can be said to be smart, then these Democrats have outsmarted themselves. Had they not tried to finesse Romney in 2004, a Democratic appointee would be providing the 60th vote right now, safely in office until this fall's general election.
My point is not to criticize Democrats for poor gamesmanship. It is to say that an amendment that allows gamesmanship is flawed. Senators, the amendment says, are to be "elected by the people." House members are replaced only in special elections. Replacement senators should be too. Scott Brown struck a note with the people when he began insisting that this Senate seat was not "the Kennedy seat" but "the people's seat." A governor shouldn't be able to award it to a lackey, sell it to a crook, or put it in his child's Christmas stocking. State legislatures shouldn't be able to fine-tune the system to ensure that their favored candidates have the advantage.
Congressional dreamers last year introduced a constitutional amendment to do away with gubernatorial appointments, and a bipartisan group of House members has written a statute to do the same. Not surprisingly, neither measure has gone anywhere. But the states could eliminate appointment by statute and provide for immediate special elections; five states have already done so.
The 17th Amendment was a crucial passage in America's pilgrimage to democracy. Stealing, jimmying or delaying the people's choice is bad policy -- and, as the Democrats are learning, often bad politics too. Garrett Epps teaches Constitutional Law at the University of Baltimore. Last year, he was a consultant for the plaintiffs in
Judge v. Quinn, which unsuccessfully asked a court to order a special election to fill the Illinois Senate seat.