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«Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment? ...»

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If Article II's specific reference to state "legislatures" insulates those legislatures from judicial oversight that otherwise would be provided for under state law, then the Seventeenth Amendment's reference to "executive" would seem to insulate governors from state legislative constraint, once the legislature has empowered the governor to make a temporary appointment in the first place.

What are we to make of this (seemingly uneven) body of Supreme Court case law? A few points seem in order. First, the Court has seemed to be more willing to allow flexible interpretation of a state "legislature's" powers and duties when the issue presented concerns popular input or control of the legislature rather than interbranch encroachment.47 For example, in Bush v. Gore, the concurring Justices objected to state judicial involvement in the Florida election process, and the same three Justices in Salazar dissented from the Court's denial of certiorari indicating their discomfort with state judicial involvement in Congressional district line drawing. Notably, their dissent from the denial of certiorari in Salazar intimated that popular, as opposed to judicial, involvement would be less constitutionally troubling."

47. It is true, of course, that the Constitution does sometimes seem to distinguish, textually, between the people of a state and a legislature of a state. Compare, for example, Article I, Section 3's conferral of Senate selection power on the "legislature" before the Seventeenth Amendment with Article I, Section 2's use of the term "people thereof" in providing for U.S. House elections. U.S. CONST. art. I, §§ 2 & 3. Such a textual contrast might raise an inference that legislatures in those contexts should be understood as distinct from the people who elected them, in the same way that when the term "legislature" is used next to the term "executive," the Constitution intends to allocate power exclusively between the two institutions. Yet it bears noting that state peoples create state legislatures in a way that state legislatures do not create state executives or vice versa, so there is a structural basis for not reading the textual distinction between people and legislature as strongly as that between executive and legislature. See Amar, supra note 19.

48. The dissenters from the denial of certiorari observed that "[c]onspicuously absent from Colorado's lawmaking regime, under the Supreme Court of Colorado's construction of the Colorado Constitution to include state-court orders as part of the lawmaking, is participation in the process by a body representing the people, or the people themselves in a referendum." Salazar, 541 U.S. at 1095 (Rehnquist, C.J., joined by Scalia, J., and Thomas, J., dissenting). See also Hasen, supra note 19, at 620.

HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 35:4

Second, where the Court has permitted state deviation from the literal terms of the Constitution, it has done so in contexts where the Constitution mentioned state legislatures but did not in the same breath (or sentence) mention (and divide power with) state courts and/or governors.

Third, the most prominent case in which the Court allowed involvement of one branch (the governor) in a way that might arguably have encroached on textual powers of another (the legislature) was Smiley. But the Court in Smiley was careful to rest its decision on the ground that district line-drawing, at issue there, is done ordinarily through a generic legislative process that includes gubernatorial presentment. As Rick Hasen has explained, the theory can be described as resting on a "legislature as lawmaking process" interpretation rather than a "legislature as distinct body of legislators" reading of the constitutional text.

Even if (as seems possible) this functional reading of the Constitution's reference to state institutions makes sense,51 it offers little support to the Wyoming statutory implementation of the Seventeenth Amendment. Appointment processes, at least those called for in the federal Constitution, 2 ordinarily do not involve significant substantive legislative constraints on personnel choices.53 So even though Smiley's result may suggest flexibility rather than rigidity in federal constitutional interpretation, the decision's reasoning actually may cut the other way in the case of Section 2 of the Seventeenth Amendment and gubernatorial appointment power.54

49. See supra notes 20-22, and accompanying text.

50. Smiley v. Holm, 285 U.S. 355 (1932) (holding that the U.S. Constitution's silence with regard to a state governor's role in the legislative process leaves governor's participation as "a matter of state polity").

51. See Amar, supra note 19.

52. I think the federal processes are most relevant since states are discharging a federal function. State constitutional processes might sometimes involve legislative appointments, but even these would be the exception, not the rule.

53. See, e.g., supra notes 17-18 and accompanying text.

54. Of course, Smiley may be good support for the idea that governors can participate (via presentment and the veto) in the enactment of laws that "empower" them to make temporary Senate appointments and the laws that provide for special elections, because laws that create appointment power and laws that regulate elections (both at the federal and state levels) ordinarily are made through generic lawmaking procedures that feature presentment.





Summer 2008] CONSTRAINING GUBERNATORIAL POWER? 741 I. Historical and Structural Reasons to Reject Wyoming's Vacancy-Filling Statute A. The History of Direct Election and the Seventeenth Amendment Reflects a Distrust of Political Parties, Especially of Party Bosses In addition to the textual analysis provided above, there are compelling historical and structural reasons for thinking the Wyoming statute and similar constraints on governors run afoul of the Seventeenth Amendment.

If the history of the Seventeenth Amendment reveals anything, it is the distrust and skepticism Progressives had concerning the influence of political parties. This distrust and skepticism was reflected in a number of specific concerns. First, those who pushed for direct election of U.S. Senators often blamed partisan excess and party machinations for the legislative deadlocks in filling Senate vacancies.5 In state legislatures that were closely divided between the two parties, the reform proponents both invoked and criticized dirty tricks and sharp parliamentary practices. 6 In Colorado in 1903, for example, in an episode cited by Seventeenth Amendment proponents, each party accused the other of fraudulent behavior and tried to enlist the coercive arm of the state to punish the other: "The Democrats had at their back the police of Denver, while the Republicans appealed to the Governor for troops, and for a time chaos and bloodshed seemed inevitable."57 In another notable instance, in Kentucky in 1896, "threats and assaults [between party leaders in the legislature] became so frequent that the Governor felt forced to call out the militia, and for three days the legislature met in a capital filled with troops enforcing martial law."58 The discontent with partisan zeal and excess was not limited to inter-party dust-ups; critics of legislative election also complained

55. See, e.g., Laura E. Little, An Excursion into the Uncharted Waters of the Seventeenth Amendment, 64 TEMP. L. REV. 629, 641 (1991); Roger G. Brooks, Comment, Garcia, The Seventeenth Amendment, and the Role of the Supreme Court in Defending Federalism, 10 HARV. J. L. & PUB. POL'Y. 189,200 (1987).

56. See, e.g., S. REP. No. 60-518, at 18 (1908) ("[The] equilibrium of parties in the State legislatures.., is an increasing mischief."), cited in Little, supra note 55, at 641 n.67;

S. REP. NO. 60-518, at 26 ("[T]he conditions of political parties becomes sometimes so evenly balanced as that a very small number... is able to determine the choice of Senator, or to prevent one being made."), cited in Little, supra note 55, at 641 n.68.

57. GEORGE HENRY HAYNES, THE SENATE OF THE UNITED STATES: ITS HISTORY

AND PRACTICE 93 (1938).

58. Id. at 91.

HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 35:4

about the dysfunction and inefficiency of party caucuses that stalled U.S. Senate selection processes even when one party held a firm majority in the legislature. The "stubbornness" and "acrimony" of Senate selection before 1913 was due in part to "the extent to which the whole situation was often being dominated by party caucus, a body unknown to the law, meeting behind closed doors.... "" This vision of party secrecy and backroom party deals cut by a few persons who could not be counted on to represent the public's interest was often described in terms of party machines or party "bosses." As towering Senate historian George Haynes put it, "[s]ometimes the [S]enatorship was meekly handed over [by the legislature] to a state boss, whose phenomenal skill in the manipulation of legislators was out of all proportion to his hold upon the voters." 6 In one prominent example, Haynes described a situation in 1897 New York in which the single name of Joseph Choate-a qualified and eminent man-was initially submitted to the majority party caucus; but when the vote was held, all but 7 of the 151 members of the majority party voted in favor of someone else-party boss Thomas Platt. One observer believed Platt's "control of the legislature [to be] more complete than his control of any office boy in his employ; for the office boy, after all, is not owned by Mr. Platt, and could quit work if he did not find that the place suited him, but the legislature seems to be his, both soul and body., In 1911, Indiana Senator Beveridge speaking on behalf of one of the many constitutional proposals of what became the Seventeenth

Amendment, had this assessment of party influence and distortion:

Political parties.., elect a legislature, and [the] majority in that legislature is not supposed, nor even permitted, according to the original theory of the Constitution, to select the best man in the State....It must select a man of the party which elected the legislature.... it comes to pass that Senators actually have So been... selected by the "party managers".... The party boss has become more potent than the legislature, or even the people themselves, in selecting United States Senators in more than one State.62

59. Id.

Id. at 93.

60.

See id. at 93 n.3.

61.

46 CONG. REc. 2253 (1911) (statement of Senator Beveridge).

62.

Summer 20081 CONSTRAINING GUBERNATORIAL POWER? 743 The part of Wyoming law that delegates to Party chiefs the task of generating a short list seems to run quite counter to the historical anti-boss spirit of the direct election drive.

Professor Levinson sees virtues in a modern world where political parties are enduring and sometimes beneficial realities, to empowering party leadership to make replacement decisions, because such schemes may preserve important partisan balances and because party leaders can ensure that whoever fills a vacancy is a bona fide party member rather than a nominal one.63 Yet party leaders are also often much more extreme and partisan than the median party member in a state, and certainly more extreme and partisan than the median state voter. Party leaders of one party in a state are thus poor surrogates for the voting public. Even if I were to agree with Professor Levinson that we could read the Seventeenth Amendment largely to reflect our modern drafting preferences, my own modern preferences would still disfavor empowering party heads. Indeed, at a minimum, a scheme in which a governor isn't constrained by party leaders but rather only bound to pick a member of the same party as the fallen incumbent (or perhaps better yet pick someone the fallen incumbent himself designated as a successor) would be a less problematic (though still to my mind problematic) means of preserving party continuity even if such continuity were strongly desired as a matter of modern policy.' Thus, even under Professor Levinson's interpretive methodology, the Wyoming scheme (and the others like it) remains to me quite problematic.

Professor Levinson also says that governors today are essentially

party bosses whether we call them that or not:

State governors, with rare exceptions, are important members of their state party's hierarchy. If one doubts their designation as 'party bosses,' it may be only because in the modern era it is hard to designate anyone as a 'party boss' in the sense that term was used in the Progressive era....

What Professor Levinson misses, however, is that governors (unlike Party central committees) are elected-by the very people of the state in whom the Seventeenth Amendment vests ultimate power

–  –  –

below, 6 to select U.S. Senators. And, as elaborated governors-like U.S. Senators but unlike state legislatures-are elected in statewide contests that cannot be skewed by various kinds of common gerrymandering. Thus, there was, and is still today, a good reason for the Seventeenth Amendment's textual preference for governors over state party officials and state legislators; governors can lay claim to represent the people of a state better than do unelected party officials or even elected, but malapportioned, legislatures in this context because governors are elected the exact same way that the Seventeenth Amendment requires Senators to be picked.67 In short, my proffered reading of the Seventeenth Amendment's text seeks to harmonize its provisions regarding temporary vacancy (the exceptional circumstance) with its provisions concerning regular popular elections every six years (the ordinary rule).

B. The History of Direct Election and the Seventeenth Amendment Reflects a Distrust of Unrepresentative Legislatures What if the short list had come from the Wyoming legislature itself rather than the discredited party apparatus? The disdain reformers had for party machines and party bosses certainly spilled over to concern about the institutions of state legislatures themselves.

Indeed, Section 1 of the Seventeenth Amendment-its heart and soul-is most easily understood as an injunction to get state legislatures out of the business of deciding who shall serve in the Senate.68 At first blush, the essence of Section 1 ought to inform our interpretation of how far state legislative powers ought to extend in Section 2.

The attack reformers made on state legislatures was multipronged. For starters, supporters of the Seventeenth Amendment accused legislatures of the same kind of corruption that permeated the political party structure. As one modern commentator has put it, "[c]orruption, of both state legislators and senators, was the greatest

66. See infra notes 72-87 and accompanying text.

67. Indeed, it is noteworthy that the Constitution does not empower governors to fill House vacancies, perhaps because House members are generally elected by different (local) constituencies from the one that elects both Senators and the governor.

68. Some proposals would have given states the choice to keep legislative selection if

they had wanted. See ALLEN BUSHNELL, ELECTION OF UNITED STATES SENATORS:

VIEWS OF THE MINORITY, H.R. REP. NO. 52-368, at 1-2 (1892) [hereinafter MINORITY REPORT]. Rejection of this option revealed the high level of distrust of state legislatures altogether.



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