New “We Need Two” coalition to push for interim Senate appointment

You read it here first!  A new coalition of nonprofits calling itself “We Need Two” is setting up an online petition to urge the legislature and the Gov (who needs no urging) to act on Senator Kennedy's desire to have an interim Senator appointed until the special election can be held.  The coalition includes:

Chelsea Collaborative
Chinese Progressive Association
MassVOTE
Massachusetts ACORN
Massachusetts Affordable Housing Alliance
Massachusetts Senior Action Council
MIRA Coalition
Oiste
SEIU Massachusetts
UFCW Local 1445

Notably absent from the WeNeedTwo website, unfortunately, is an important part of Senator Kennedy's idea, namely, that the interim appointee should not participate in the special election.  However, coalition spokesman Michael Whitney told us that

[I]f the legislature honors Senator Kennedy's request to change state law and allow[s] for a temporary appointment to fill his seat, the prospective candidates can be asked to pledge not to run for the seat after the appointed time. The [WeNeedTwo] site specifically emphasizes the “temporary” nature of the appointment, too.

… [T]his pledge would most likely be based on a promise by the appointee (and those who do not make that public promise could be dropped from consideration) but would be easily upheld by the voters. Any appointee who breaks their public promise not to run would have a hard time convincing voters they should be trusted and put back in office.

So they're at least not averse to it.

Here's my suggestion.  If the legislature is going to do this, it should include a provision making the interim appointee ineligible to participate in the special election.  Is that constitutional, you ask?  Who knows?  It's complicated, and there are decent arguments both ways.  So pass the law that way because it's the right thing to do.  If someone wants to challenge it, let the courts sort it out.

 

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  1. Agreed -- make it explicit

    I don't know about the constitutionality of such a clause either, but I think it would be an important safeguard against someone going back on their pledge. In theory, of course, doing so would alienate the voters responsible for electing the person come election time anyway and would provide a much needed check, but a lot can happen in the intervening period to change that political calculus.

    I think making it explicit--and perhaps even constitutionally delineated-- is a good idea for two reasons. (1) it provides a better check against the aforementioned problem of breaking such a pledge, (2) it gives all of the interested candidates plenty of time to run and campaign, which gives the voters the best chance to assess their aptitude for the job. Not to mention that it gives all a fair shot at the seat, including Republicans and independents, many of whom look at this as a pure democratic power grab, and not without, in my view, a certain degree of justification after 2004. It's only fair.

    What's more I would also like to see the interim be a relatively non-partisan and highly respected candidate -- a kind of elder statesmen who would do this as an act of pure public service and not as the capstone to their political ladder climbing. The problem is, off the top of my head I'm having trouble coming up with one; how old is the Duke?  Is he too partisan?

    Can BMGers think of anyone else?

    • Two points

      1)  The rest of the country isn't exactly looking at this with the same bright eyes as around here.  The 2004 blatant political change in law (at Kennedy's behest) coupled with the backtracking now that circumstances have changed isn't going over so well outside of the 128 belt.

      2)  Surprised noone has brought up recent news that we're probably going to lose a House Seat after the next census.  The musical chairs game has been ratcheted up to another dimension now with the Senate vacancy.

      To be honest, if this is all about the "filibuster proof count", the decent thing would have been for Kennedy and Byrd to step aside a year ago, and get someone elected in to vote on a consistent basis.  No offense for their physical travails, but if that was the big concern, they should have resigned before they couldn't be counted on to be present to vote.

      • actually

        there was a poll that showed 52% of the state supports the proposal, with 40% opposed, and that was before Ted's passing.

        While it's sure to rankle some voters, not doing so will rankle others, especially if lack of representation does any legislative damage. Furthermore, not sure how many of the 40% who would be opposed would be strongly opposed (and how many of those that would otherwise vote for the Democrat). This is a prime example of the importance of reality-based governance... sometimes political fears aren't justified and can spurn the actual will of voters. As always, just my humble opinion.  

      • roosting chickens...

        The rest of the country isn't exactly looking at this with the same bright eyes as around here.  The 2004 blatant political change in law (at Kennedy's behest) coupled with the backtracking now that circumstances have changed isn't going over so well outside of the 128 belt.

        Well there, now, is the crux of it.  Once again our legislature failed in their duties to represent properly and with quality. They changed a bad law into a worse one, for all the wrong reasons and, surprisesurprisesurprise, our chickens have come home to roost. How many times have they done this?  How often has the Pike been 'fixed' and 'reformed'?  Too many to count.  How many ways are they going to screw up?

        Right now I'm so mad I could spit.  I don't think I'd object if Deval Patrick threw the entire General Court all in irons and appointed the 4th grade choir from Pittsfield to replace 'em.  Every last one.

        But, ranting and foaming aside, your point is well taken and I'd even extend it: it's not playing well because it's rotten politics and because it's rotten politics nobody'll trust whatever solution the rotten politicians come up with.

        Surprised noone has brought up recent news that we're probably going to lose a House Seat after the next census.  The musical chairs game has been ratcheted up to another dimension now with the Senate vacancy.

        Somebody did bring this up in another thread.    I think, as a way of throwing more entropy at the situation, it is to be lamented, but not, as I can see, to be regretted: it's a situation that's out of the control of many.  But, again, since it's the lege coming up with the solution...  

    • Humbug

      1 something designed to deceive and mislead 2 an attitude or spirit of pretense and deception 3 nonsense, drivel

      Potential constitutional challenges to state laws are always hypothetical no matter how likely a challenge seems.

      Moreover, if they are not "tricky," then they are easily resolved attorneys at either fancy law schools or otherwise.

      In all cases, the Legislature has a legal, moral and ethical obligation to allow themselves to be "hamstrung" whenever they are faced with the "tricky issue" of considering a law that has a reasonable chance of being unconstitutional.  The fact that is complicated does not relieve them of their duty. It simple doesn't.

      Option (4) - allowing temporary appointment with the understanding but no legal requirement that the person not run in the special election - is the only responsible and ethical answer to the current conundrum.

  2. Democrats shot themselves in the foot, not really.

    It sickens me to no end that Democrats in the General Court are dancing along the lines of legality and constitutionality to ensure the only outcome they envision is an outcome that benefits them, not the people.  Far too long have people stood by this state's senators and representatives and allowed them to manipulate the laws to give one side an advantage over the other and that is the side of the Democrats.  They would do anything possible to suppress the Republicans.  This is now such a common practice that it is mundane to ignore a constituent's concern if he or she leans slightly right-of-center.  This common practice has made this once honorable body a circus for Democrats to boaster their creativity and commitment to suppressing Republicans, not fulfilling their constituent's needs.  This is just sickening.

    Democrats now allege that the people of Massachusetts cannot afford to be one voice/ vote short in Congress once the congressional session begins in the fall.  To remedy this tragic shortcoming, Democrats propose we change the laws back to having the governor appoint a temporary US Senator.  There is absolutely nothing wrong with this.  This is actually better!  Before we continue, let's look at what they want the General Court to do, change the laws back to how it was?  This means that the governor use to be able to appoint a temporary US Senator if there is a vacancy.  Who decided that it was best to leave the seat vacant until a special election instead of a temporary appointee?  It was the Democrats.  They were in great fear a Republican would get the seat if the system allowed the governor to appoint the temporary appointee.  Repercussions on the citizens of the state was ignored and the General Court went ahead to amend the law to prevent the governor from appointing the temporary US Senator, i.e. leaving the seat open longer and leaving the state one voice short longer.  The General Court wanted this because it worked out for them, not the people.  Now they want to change it back because that system they put in place actually might hurt them politically.

    I can only hope the people of Massachusetts see through this political manipulation and realize they are not being represented fairly.

    • Weak.

      It sickens me to no end that Democrats in the General Court are dancing along the lines of legality and constitutionality to ensure the only outcome they envision is an outcome that benefits them, not the people.

      First, to suggest that "Democrats in the GC" are unified for anything shows you're not really paying attention.  But more to the point, the voters have spoken time and time again that they want two Democratic senators from MA.  How is changing the law now to allow for two senators benefiting any member of the General Court?

      This is now such a common practice that it is mundane to ignore a constituent's concern if he or she leans slightly right-of-center.

      Really?  Cite two cases.  Don't just come hear and claim the reality you envision as reality.

      I can only hope the people of Massachusetts see through this political manipulation and realize they are not being represented fairly.

      I hope they see this and realize that the General Court's actions will mean that the people are being represented fairly in Washington by two senators.

  3. As strong a prohibition as possible on the interim seeking election is crucial

    With that in place, this is just an argument about a few months worth of being a Senator. A nice shot of power for the Governor to bestow, to be sure, but also good for Massachusetts and in keeping with Senator Kennedy, the people's elected representative's, wishes. On balance, reasonable.

    If the interim Senator is allowed to seek election, however, then the criticisms of the Republicans that this is just a naked, hypocritical, power grab by Beacon Hill's Powers That Be have considerable merit: the interim Senator will have a big advantage over the other candidates. It will also enrage all of the potential candidates for the seat who are not chosen, and their supporters.

    "We Need Two" would be wise to include David's suggestion for a legislative prohibition on the appointee seeking election in their petition. Mr. Whitney's comments are a step in the right direction, but suspicions run deep and the more explicit the intention can be made, the better: objections forestalled, clearer message.  

    • I wish it could be so...

      As strong a prohibition as possible on the interim seeking election is crucial

      With a nod to the principle behind it, and a wink at the more aggressive amongst our pols, I must disagree.   Not only do I think this is unconstitutional but it is one more political dagger for either the legislature or the Governor.  

      I would think that one of two outcomes would occur:

      --The governor appoints his biggest nemesis with the intention of disrupting his career and providing for openings 'downstream' that will be used to further disrupt the career of said nemesis.  What better way to get someone off track than to give them a promotion that is only temporary.

      -- Or, anyone in a position to move up might refuse the appointment (for the same reason as above) leading to lower quality representation.  

      All this assumes, of course, that said appointee would be required to give up his/her present position.  Even if we opened up that can of worms on the state level what are we to do with seniority in the house, should someone from there be appointed?

      I think that, if we're going to ask somebody to step up to the plate, we got to give them a chance to round the bases...  

  4. Question

    Can the legislature or the govenor ask the SJC for an advisory opinion as to whether barring the appointee from running would be constitutional? I'm not sure exactly what the constitutional argument would be that a hypothetical future appointee would make that he or she has a right to run for re-election. I imagine there are potential US constitutional and MA constitutional arguments that could be raised. Can the MA SJC address cases with mixed MA and US constititional issues in an advisory opinion? Obviously the advisory opinion would not be binding in federal court, but it could be persuasive. And it would add more legitimacy to the new process instead of the "just pass it and hope" position.    

    • They can certainly ask about state constitutional issues...

      but the key question is the federal one, and I am not sure that the SJC can offer advice on that in the advisory opinion context.  The other problem is that asking for an advisory would inject further delay into the process -- if they don't do this within a couple of weeks, it's not really worth doing.

      Interesting question though.

  5. Two what?

    Exactly what quality of senator would MA get with a job description of:

    - serve 4 months or less - no chance of renewal without risk of public scorn

    What type of person can drop everything to be a senator for a few months?

    It won't be someone from the "working class" who can neither afford a 4-month LOA or risk losing their job.

    It won't be someone from the current political class, unless the legislature -- and I wouldn't put it past them -- enables a current office holder to hold two jobs concurrently

    Will it be a state employee with a guarantee of reemployment upon their return?

    Or will it be someone completely unqualified, who won't be serving MA but rather serving the puppeteers who placed them there and walk them through the motions for a few months?

    Having two senators at all times is very important to these interest groups, lobbyist, unions, and PACs. But they aren't Massachusetts.

  6. A Terrible, Awful Idea

    So pass the law that way because it's the right thing to do.  If someone wants to challenge it, let the courts sort it out

    This would not be the right thing to do at all.  The fact that there  are "decent arguments" both ways does not discharge State Legislators (or, for the matter, the Governor) from their solemn and fundamental obligation to "bear true faith and allegiance to the Commonwealth of Massachusetts and support the Constitution thereof."  

    As a matter of matter of indispensible principle,  elected officials must never ignore or minimize their obligation to pass only laws that are consistent with the Constitutional limitations on their power.  If it's "complicated" (as it is here) then they need expert legal advice and sometimes they need that quickly.  But it is not right in any sense to pass a law that has anything more than a very small chance of being in violation of either the State or Federal Constitution.

    The Legislature should only proceed even remotely along the lines you suggest if they are given honest legal advice that any new law is consistent with their duty to bear true faith and allegiance to the Commonwealth and it's Constitution.  On this, no believer in representative democracy should waver.

    • Bah.

      As a general rule, no, of course legislatures shouldn't be going around passing laws that they think are unconstitutional.  But this is an unusual case.  The US Constitution specifically confers upon state legislatures some authority to "direct" how temporary appointments to the Senate are handled.  Is there a tension with another constitutional principle, namely, that states cannot create additional qualifications for federal office?  Yes.  And no one, however fancy a law school they work for, can predict with much certainty how that tension would be resolved in court, should it come to that.  Remember that the US Term Limits case linked above was decided by a 5-4 vote on a Supreme Court with somewhat different membership than exists now.

      So the legislature has a couple of choices.  (1) They can do nothing.  Legally fine; but leaves MA with only half a Senate delegation for several months and all the attendant problems that brings along.  (2) They can allow an interim appointment, but with no restriction on the appointee running for the rest of the unexpired term.  Legally fine; democratically bad, as it threatens a return to all the good reasons to get rid of gubernatorial appointments in the first place.  Or, (3) they can allow an interim appointment while barring the appointee from running in the special election.  That's the best real-world solution because it solves a practical problem without harming the people's right to elect their Senators; there are legal questions, but there is no way to be certain about how they'd be resolved.  IMHO, the legislature should not hamstring itself by trying to divine what a federal court would do if faced with a tricky issue posed in a hypothetical case.

  7. Why, David?

    Why is passing the law the right thing to do? That implies that honoring the existing law is the wrong thing to do.

    Someone on WBUR this week -- Thomas Oliphant, maybe -- said the full meaning of "The work begins anew" is that Ted Kennedy undertstood that this never ends. There is always a better law to to be written (a better healthcare law, I mean), even if we get an imperfect one this year.

    I think they did the right thing in 2004, even though they did it for the wrong reason.

    Why do you say otherwise?

    • If you read my post,

      you'll see that what I actually said is this:

      If the legislature is going to do this, it should include a provision making the interim appointee ineligible to participate in the special election.  Is that constitutional, you ask?  Who knows?  It's complicated, and there are decent arguments both ways.  So pass the law that way because it's the right thing to do.

      Now, that said, I am coming around to the idea that allowing an interim appointee who is barred from participating in the special election is actually the best solution -- it solves the problem of a months-long vacancy with no harm to the democratic principle that the people choose their Senators.  What's not to like?

      Yes, they did basically the right thing for the wrong reasons in 2004.  They just didn't get all the details right.  They should have accepted the Republican amendment to do what Senator Kennedy has urged.  They didn't; they can fix that mistake now.

      • I reread it

        So pass the law that way because it's the right thing to do.

        I didn't fully absorb the "that way" on first pass. Cheers.

        But I still disagree. :-!

         

    • I think he wants representation for MA during the interim period

      That seems a sensible argument.

      • It is

        But I still have problems with it. Like I said the other day, if the state is Texas and the governor is Rick Perry -- is this still a good idea?

  8. Appointing someone unlikely to run is fine.

    On the merits, however, I am absolutely opposed to requiring or pressuring the appointee to not seek election in his own right.  I for one would want a chance to go before the voters to ratify the job I'm doing on their behalf.  Let the voters sort this out.  It is unfair to both the appointee and the voters to not have that chance.  If it's someone not already sitting on a federal warchest, then he's still starting from roughly the same place as any challengers in terms of fundraising.

    • Let's say it's Marty Meehan.

      He graciously takes a leave from UMass to serve in the Senate for a couple of months.  No, no, he says, I want to go back to UMass afterward, so I won't run.  Then, once in the Senate, he decides it's actually a pretty good job, and changes his mind (of course, that would never happen ... oh wait).  He's got something like $5 million in his campaign account, and he's the incumbent by virtue of an undemocratic appointment.  Suddenly, he looks like a shoo-in.

      No problem, I guess you'd say.  I think differently.

      • You're right

        I don't see the problem, but I would hope he gets challenged the first time around so as to give people a choice.  I guess either I have more faith in the voters or figure that if they don't vote for someone else they have no right to complain.  Besides, the appointment by the Governor, also elected, is a legitimate political decision made on behalf of the state.

      • I've got the same worry

        The only way this doesn't look like political hackery -- and in fact isn't political hackery in my opinion -- is if the situation is managed so that none of those who wish to run are put at a major disadvantage by having an interim-suddenly-turned-incumbent.

        I mean what does that say about the democratic process if the gov simply appoints someone with the understanding that he's basically given them the seat for keeps because of a major incumbency advantage? And thinking that the voters will just sort it out, clearly don't understand how powerful that advantage is (name recognition, $$, etc...)

        The state deserves to have a wide-open, and relatively even playing field. Let the candidates compete on their merit, character, policy, and vision.

      • Marty Meehan is a Snake

        Hopefully, Deval Patrick is not dumb enough to appoint Marty Meehan.

        When Marty Meehan was Phil Shea's campaign manager he ran a very violent 5th Congressional District campaign against Chet Atkins.  [It was an open seat at the time and Shea was more conservative of the two Democratic candidates.]  Atkins campaign workers were repeatedly roughed up.  And, Atkins signs were routinely trashed in and around Lowell.

        Later after Shea lost, Marty himself ran against Atkins, a democratic incumbent in his own party.  He ran on a campaign promise of "term limits," a promise he conveniently broke years later.

        As a Congressman, Meehan voted more conservatively than Atkins.  And, there were questions of impropriety (e.g., he always seemed to get prime seats at Patriots games).

        Marty was a frequent guest on Howie Carr's radio show during which he didn't exactly defend well known positions of the commonwealth's senior Senator -- the same Senator Kennedy that Deval would be asking for him to replace.

        • Violent?

          Accusations like that automatically require citation in my book!

        • Whoa

          Unless you have firsthand knowledge of violence -- and by firsthand, I mean you saw it, or it was publicly exposed -- you shouldn't toss that accusation around. I never worked on a campaign where there weren't wild rumors about what the other side was doing.

          • Two Personal Experiences of Campaign Violence

            I was personally roughed up, along with several Atkins campaign workers, outside a debate in Framingham.  [As I recall it was outside a Union hall.]

            The next time, was in downtown Lowell.  We were holding Atkins signs near the Lowell Sun building, when Shea campaign workers rushed out of their campaign office and clubbed us and tore up the signs.  [I can attest that Marty Meehan himself was watching his workers from inside the plate glass window of the Shea campaign office. Although it appeared to me that Marty ordered (or at least encouraged) the violence, I can npt state definitively that Marty did.  But as Shea's campaign manager, one could assume that he should be in control of his thugs.]

    • Not the way it works it in the real world, in MHO

      In the real world, whoever is appointed to this position will have a huge -- perhaps insurmountable -- advantage over anyone else in the election because of (1) publicity and consequent name recognition, and (2) power of the office, however brief, which will help enormously with fundraising (nudge, nudge, wink, wink, say no more, say no more) among other things. This advantage will have been conferred by appointment only, without any participation of the voters. Thus, undemocratic and bad practice.

      Perhaps that is why Senator Kennedy explicitly required such a commitment in his July letter.

      • As I said above

        I don't buy the premise and it doesn't bother me anyway.  My arguments are essentially the same as those against term limits.  I don't care about incumbent advantage; voters can always decide the next time around.

        • incumbency

          "I don't care about incumbent advantage"

          That may be so, but just because you don't care about it doesn't mean that it isn't a tremendous advantage.

      • frankly, we're here to make a 'more perfect union'.

        ... So 'real world' concerns ought to take a backseat to what's right.

        In the real world, whoever is appointed to this position will have a huge -- perhaps insurmountable -- advantage over anyone else in the election because of (1) publicity and consequent name recognition, and (2) power of the office, however brief, which will help enormously with fundraising (nudge, nudge, wink, wink, say no more, say no more) among other things. This advantage will have been conferred by appointment only, without any participation of the voters. Thus, undemocratic and bad practice.  

        All this is true, but, alas, not the fault of the incumbent. Punishing an incumbent for something that is not altogether their fault seems too easy.  It is the fault of the electorate (do you recall that when George W Bush ran in 2000 a significant portion of those polled that that he was, in actuality, George H W Bush, running again...?). Name recognition is a powerful thing, but so too is education.

        That incumbents take great advantage of this might make them abettors but they are not, really, culpable. Perhaps they are, taken as a whole, culpable for a studied inability to enact the kind of change that would prevent these issues from being problematic.

        Insofar as appointments occur (supreme court,ambassadorships, etc...) there is a place for them in a republic. They are not, inherently, undemocratic. And as long as the appointer (in this case Gov Patrick) is himself accountable to the electorate, I'm not opposed to them.

        As a strong believer in representative democracy (a republic) I'm more horrified by any amount of time in which the people are not represented than by the fact that an individual representative might be appointed.  Months with out proper representation is a far graver threat than a gubernatorial appointment.  

        • OK

          I guess senators should not run for president.

        • By the way

          I wholeheartedly agree with your opening point, but I think you reach the wrong conclusion. I'd argue that we are still represented in the Senate, the same way Worcester is represented in our State Senate if their senator is absent. The body works as a whole on national issues.

          In addition to Minnesota, the following states have had absent senators:

          Illinois, when Obama was running and for months after the election New York, when Hillary was running Delaware, when Biden was running Connecticut, when Chris Dodd was running Massachusetts, in 2004 Massachusetts, for the past year or so (Ted made one vote) South Dakota (Tim Johnson) West Virginia (Robert Byrd)

          Still horrified?

          • why, yes... thank you for asking...

            In addition to Minnesota, the following states have had absent senators:

            Illinois, when Obama was running and for months after the election New York, when Hillary was running Delaware, when Biden was running Connecticut, when Chris Dodd was running Massachusetts, in 2004 Massachusetts, for the past year or so (Ted made one vote) South Dakota (Tim Johnson) West Virginia (Robert Byrd)

            Still horrified?

            Very much so, though I would make a distinction between 'absent' and 'vacant'.    Campaigning Senators miss a lot of votes, and that's bad and wrong, but not the same thing as illness and death... They also fly in and make votes as they see fit. They are also accountable to the electorate for their job performance.  So, while certainly not optimal and certainly horrifying, I don't think a campaigning senator is, per se, vacating the seat.

            But, yes, to answer your next question, maybe Kennedy ought to have resigned a while back and Byrd too...  I'm not familiar enough with Tim Johnsons  situation to comment on it.

            • You can make that distinction

              But I don't think it would hold up with most people.

              Tim Johnson was, for a time, completely incapacitated. The only reason the GOP didn't make a major deal about it was because of the "precedent" of Strom Thurmond, who was so far gone at the end that he couldn't recognize his own staff. But the GOP held the majority, and he was allowed to serve. There are, I believe, Senate procedures for removing members who cannot serve, but they were not used.

              I find it interesting that you advocate an appointment, yet you cite accountability to the electorate in defending senators who are absent by choice. I'm not trying to harass you, but I feel like you're having it both ways.

              • hm...

                I find it interesting that you advocate an appointment, yet you cite accountability to the electorate in defending senators who are absent by choice. I'm not trying to harass you, but I feel like you're having it both ways.

                Well, appointments, too, are subject to electorate; that is to say, they are accountable to them after a (hopefully short) period of time.  I don't think I ever advocated a lifetime senatorial appointment.  All outcomes, here, are ultimately resolved via an election, as they ought.  So I don't see the 'both ways' here... perhaps another side of the same coin?

                The best possible outcome would be the most minimal vacancy closed by an election.  Is that clear enough? In the absence of an election happening quickly enough, I welcome an appointment because I think no representation is the worse case scenario. Perhaps that's a needle too thin to thread, for you, but that's where I'm at.  

          • Are you really arguing virtual representation?

            As I recall we declared independence over that concept.  I also agree with petr's point about a difference between vacant and absent.  I assume Kennedy's office will operate under the auspices of the Clerk of the Senate just like Meehan's office operated under the Clerk of the House after he resigned.  Part of the reason I like an appointment is because it can be done quickly and keep the vacancy very brief.  Not all votes are national and the concept of equal suffrage in the Senate was seen as so vital by the framers that such is excluded from any possibility of constitutional amendment.

            • I have no idea what this means

              I assume Kennedy's office will operate under the auspices of the Clerk of the Senate just like Meehan's office operated under the Clerk of the House after he resigned.

              I also think it's really difficult to argue that the framers intended appointments as an alternative to elected democracy, just because a seat would be vacant.

               

              • Actually...

                ...the framers wanted state legislatures to elect Senators.  Remember, the Senate is a body of the states not the people; if it were a body of the people there would have to be representation by population.  That is why the Governor is competent to appoint on the people's behalf.  The quoted part above is just to point out that certain services will not cease, but there won't be a voting seat.

              • to expand...

                ... on the point made downstream by Christopher;

                I also think it's really difficult to argue that the framers intended appointments as an alternative to elected democracy, just because a seat would be vacant.

                Article 1, sec 3 of the US Constitution says (and was in effect from the adoption of the constitution in 1788  until the adoption of the 17th amendment in 1913) as follows: "The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote."  

                So, it's not just what the framers wanted, but what they put into effect and what was the law of the land for 125 years!!  And they didn't even bother to specify HOW the legislature was to chose...  Corruption and inconsistency was one of the chief motivators of the 17th amendment.  The only limits the framers placed were the age limits and the ability of the governor to appoint Senators if a vacancy occurred during a legislative recess.

                So the framers never intended direct election of Senators at all.  Why?  Because we are not a direct Democracy.  We are a representative Democracy.  The difference is crucial: we don't elect people to simply mirror our views and repeat the votes that we would take if we were there.  Rather, we elect people to make decisions on our behalf.  I'm perfectly happy to elect a governor who might, in turn, appoint a Senator so long as I know beforehand that such is one of the decisions a Governor might have to make.  I'm already willing to vote for a governor based, in no small part, on whom he might appoint to any office, just as I'm perfectly happy to elect a president in large part on the basis of whom it is he might appoint to the Supreme Court.   I'm also quite willing to vote against someone who, I fear, would appoint nefarious characters.

                But what I object to is the doomed-to-fail efforts of seeking to find a law that will trip all the right mechanisms in an effort to circumvent what I see as an entirely legitimate function of the Governor, namely appointments.  Some vague notion of popular elections and direct democracy have corrupted the thought process to the extent that we contort our logic, and our laws, in a simplistic effort  to derive the proper outcome programmatically.  This is an exercise that is doomed to failure: the wrong law deriving from wrong thinking for the wrong reasons will never provide the right outcome.

                • John Adams' belief in the natural aristocracy

                  The democratic egalitarian norms that we hold today were unpopular within the Federalist Party.

                • Interesting historical footnote

                  Even before the 17th amendment some states were in the habit of conducting a non-binding popular election for Senator with the gentlemsn's agreement that the legislature would choose whomever the voters told them to choose.  In other cases, the Senate race was a key factor in voters' decisions as to which party's candidate to support for the state legislature.  This is why Abraham Lincoln and Stephen Douglas famously debated in public during the 1858 Illinois Senate race.

                  I'm also starting to think that maybe as along as the 17th amendment gives the states some leeway, that maybe we should constitutionalize our vacancy process at the state level.  This goes directly to how the polity which is our state government functions and the people should have a say in how this is done in a way the legislature can't just change on a whim.  There is definitely something to be said for not creating rules ad hoc everytime a vacancy occurs.

  9. I think my bottom line here is this

    When we're trying Goldberg variations on a method of getting to a certain goal by means other than the established, universally acknowledged right way -- an election in this case -- then it's a sure sign that we're doing the wrong thing.

    I am reminded of Deval's list of all the things the casinos would fund: education, human services, the arts, etc. But he doesn't have to make that argument when he does the right thing.

  10. SPAM ALERT - SPAM ALERT

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Sat 25 Mar 11:38 AM