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I've always had a problem with gubernatorial appointments of new U.S. Senators when a vacancy arises. With the death of John McCain, the issue has arisen once again. While I know what everyone says the 17th Amendment says and means, I also wish to remain within original intent be it from the Framers of the Constitution, to the authors of the 17th Amendment a little over a hundred years ago.
Appointment of a Senator by the governor of a State is often the way a replacement is sought. Granted, that is not always the method. Sometimes, it's by special election.
Prior to the Scott Brown election into the Senate I recall the story that was floating around back then about how the Democrat Massachusetts legislature had thought they'd messed up, an error they said led to the Scott Brown win.
As the rumor went, the Democrat Party dominated State of Massachusetts always had their method for filling a senatorial vacancy as being by appointment by the governor. When Mitt Romney, a Republican, became governor of Massachusetts, the legislature, fearful that if Teddy Kennedy died, the GOP executive authority would put a Republican in "Kennedy's seat," they voted to switch the rule to filling the vacancy by special election. Once Romney was gone, they never got around to changing it back, and then when Kennedy did finally meet his Maker, a special election put Scott Brown into the seat.
At the time, not having investigated the matter as much as perhaps I should have, I accepted the story, and accepted the idea that, thanks to the wording in the 17th Amendment, the State may arbitrarily decide for itself how to fill a senatorial vacancy, with the two choices being by special election, or by gubernatorial appointment.
In truth, the story was not necessarily accurate. Paul Kirk had been appointed to hold Kennedy's seat temporarily, until a special election could be held. In the special election Scott Brown won, and he held the seat for the remainder of the term (February 4, 2010 – January 3, 2013).
Simply put, Massachusetts did it right.
With the death of John McCain, and the rumor that Arizona plans to fill the seat with an appointment of his widow, Cindy McCain, I began to dig into the text of the Constitution, paying special attention to the intent of the Framers of the first seven articles, and the documentation I have available to me regarding the writing of the 17th Amendment. I wanted to make sure I was accurate in my opinion that Massachusetts did it right, and that the rumor that Arizona is considering filling the vacancy through appointment only is wrong.
To understand the preference of the Founding Fathers, should a democratically elected seat in the legislature be vacated, I had to first go to Article I, Section 2 of the U.S. Constitution. While John McCain's slot is in the U.S. Senate, back then the Senators were appointed by the State legislatures. Therefore, so that I could understand the original intent of the Framers of the Constitution regarding democratically elected seats, I realized we need to study what they had to say about vacancies in the House of Representatives first to set the stage for our research.
Article I, Section 2 of the U.S. Constitution explains in pretty clear language the manner in which vacancies in the House of Representatives must be resolved. "When vacancies happen in the Representation from any State, the Executive Authority thereof shall issue Writs of Election to fill such Vacancies."
Simply put, if the representative was originally democratically elected, the only way to replace a representative, should there be a vacancy of the seat, is for the governor of the State to provide for a special election so that the person may be replaced through a democratic vote of the people.
As stated earlier, the U.S. Senators were appointed by the State legislatures, so if a vacancy were to occur in that House of Congress during that early American time period, the State legislature would simply appoint a new person for that seat.
Notice that in both cases the governor, for the most part, has nothing to do with the process, other than, in the case of the House of Representatives, making sure that Writs of Election are issued so that there can be a special election.
In 1913, with the alleged ratification (I write "alleged" because, as with the 16th Amendment, there are questions regarding the legitimacy of the requisite number of States' ratifying votes) of the 17th Amendment, the way a Senator achieved a seat in the U.S. Senate was changed from appointment by the State legislature to a democratic vote by the citizens of the United States. In other words, the members of the U.S. Senate would no longer serve as ambassadors for the State legislatures to the federal government, and as overseers of federal operations by acting as the eyes and ears of the States. Instead, U.S. Senators would become nothing more than democratically elected representatives who, in the long run, make them nothing more than hustlers for votes who spend most of their term worried about reelection, rather than considering the important business of acting and voting in a manner that protects the sovereignty and individual concerns of the States.
In 2014, in my book, The Basic Constitution, here's what I had to say about the 17th Amendment's vacancy clause: "The Seventeenth Amendment also provides for appointments should a seat in the U.S. Senate be left vacant for any reason. The governors of the States, should the legislatures allow such, may make temporary appointments until a special election takes place. The State legislatures may change these rules as they deem necessary, such as requiring an immediate special election instead of allowing the governor to temporarily appoint a replacement. This leaves most of the power regarding filling vacancies in the hands of the State legislatures."
Massachusetts' handling of the vacancy following Ted Kennedy's death comes to mind.
The beginning of the clause in the 17th Amendment reads essentially identical to the one in Article I, Section 2 regarding the House of Representatives (save for some capitalization and language specifying the Senate and the States). "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", with a colon after the final word, rather than a period. Then, the word "Provided" is added, and is italicized for emphasis. After the word "Provided," the clause reads: "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 key words are "may" and "temporary".
Again, Massachusetts' gubernatorial appointment of Paul Kirk, and then the special election of Scott Brown, comes to mind.
Based on my own cursory readings of documents regarding congressional records from that time period (sources regarding the Congressional Record largely cease around 1875, and do not pick up again until 1989 . . . one wonders why. They are available if you know where to look, but they are not available online between 1875 and 1989) and based on the language used (with an emphasis on the words "may" and "temporary") it is my belief that the original intent of Congress regarding the 17th Amendment's vacancy clause was to largely adhere to what the Framers of the Constitution intended back in the eighteenth century - that democratically elected members of the U.S. Senate should be replaced through a special election, not by appointment. However, they felt they needed to have a provision for unforeseen circumstances. What if a special election was not immediately possible due to various factors? What if the vacancy happened close to the election regarding the senatorial seat?
I bring all of this up simply to bring clarification, and I suppose as a protest to the idea that the Arizona governor ought to simply appoint whoever that person likes to the seat to carry out John McCain's final two years of his term as U.S. Senator. Should the governor be able to appoint a replacement for a democratically elected Senator? What if the governor chooses someone with absolutely no experience, like John's widow, Cindy McCain?
While I do not believe being a democracy is good for this country, and that the particular political system of "democracy" was not originally intended by the Framers of the Constitution (we are a republic, or at least we are supposed to be), and while my greatest constitutional wish-list item is a repeal of the 17th Amendment, the truth is clear when it comes to the process of how a democratically elected representative ought to be replaced. If Senators are democratically elected, then their replacements should be democratically elected as well through a special election. Well, it should be that way at least until we correct the one hundred year mistake and repeal the very destructive 17th Amendment.
-- Political Pistachio Conservative News and Commentary
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