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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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But since governors under the terms of the Seventeenth Amendment can't be forced, rather only empowered, to fill vacancies by temporary appointment," a reading of the Amendment that guarantees gubernatorial discretion in personnel choice is the one most likely to result in the prompt filling of vacancies. By contrast, a reading that allows state legislatures to constrain governors (perhaps to the point that governors might not exercise the powers given if they don't like the constraints) could increase the likelihood that vacancies go unfilled during the period before the election is held.

This is especially true given that only some states try to limit their governors. Such an absence of uniformity increases the chances of stalemates caused by partisan wrangling.

More generally, a reading of the Seventeenth Amendment that gives either legislatures or governors the dominant role in making temporary appointments is more likely to reduce prolonged vacancies than a reading that requires the two branches to work together and negotiate with each other over specific candidates.91 And yet the legislature cannot, as a textual matter, actually make, nor mandate the making of, the temporary appointments. Thus, allowing broad legislative involvement can produce stalemates.

Of course, a legislature can statutorily decide to bypass the governor altogether and provide for a prompt special election, but this route is expensive and unusual. Moreover, even a prompt election is not nearly as quick as an executive appointment can be, which is one reason why few states would eschew temporary appointments. And as Stanford Levinson has pointed out, the need for prompt replacement mechanisms is greater now that the modern world is haunted by the specter of political and economic terrorism on a potentially grand scale. 92 Should a large number of Senators be killed in a terror attack, the need for promptly filling Senate vacancies is particularly acute. But it is precisely at these times that wrangling (2005); WIS. STAT. §§ 850(4)(b), 17.18. Alaska does have a statute authorizing gubernatorial temporary appointments, ALASKA STAT. § 15.40.145 (2008), but a 2004 initiative passed by the voters calls into question the validity of that statute. See Revisor's Note to § 1540.145.

90. See supranotes 30-37, and accompanying text.

91. Cf. Edmond v. United States, 520 U.S. 651, 660 (1997) (appointments clause option of vesting appointment in the President alone or Heads of Departments facilitates prompt appointments).

92. See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE

CONSTITUTION GOES WRONG (AND How WE THE PEOPLE CAN CORRECT IT) 70

(Oxford University Press) (2006).

Summer 2008] CONSTRAINING GUBERNATORIAL POWER? 753 between governors and legislatures (or their delegates) over personnel choices could be most costly. Reading Section 2 of the Seventeenth Amendment so as to minimize the possibility of such time-consuming intrastate clashes promotes the structural and historical goal of prompt replacement.

IV. Legislative Specification of Party Continuity Let us move from the case against allowing party heads or state legislatures themselves to pick interim U.S. Senators, or even limit the governor to their short lists, to the related question of whether a state legislature should be free to specify, as at least one (Arizona's) has,9 that the governor's pick to fill a temporary vacancy be drawn from the same political party as the departed Senator.

Even if legislatures cannot be trusted to pick actual candidates, wouldn't a legislative requirement that the replacement Senator be drawn from the same party as the departed one simply attempt to maintain the wishes of the voters from the last Senate election until the voters can speak directly again, and wouldn't that legislative instinct be legitimate?94 While these questions may seem closer than those plaguing Wyoming's approach, the Arizona plan also directly implicates the Seventeenth Amendment's general distrust of state legislative motivation and ability to represent statewide voters, and violates the Amendment's bright-line allocation to governors (and corresponding exclusion of legislatures) of substantive decision-making power regarding temporary Senate appointments. To begin with, note that a state legislature certainly couldn't constrain the state electorate at the

93. See ARIz. REV. STAT. ANN. §16-222 (2007) (requiring the Governor to fill U.S.

Senator vacancy with appointee "from same political party as person vacating the office.").

94. Several federal statutes seem to require the President to take party status into account in filling congressionally-created posts. See Federal Elections Committee Act, 2 U.S.C. § 437c(a)(1) (2004) and Federal Sentencing Reform Act of 1984, 28 U.S.C. § 991(a) (discussed in Buckley v. Valeo, 424 U.S. 1, 113 (1976) and Mistretta v. United States, 488 U.S. 361, 368 (1989) respectively). I am not aware of any challenges to these provisions in particular; although the statutes, of which they are a part, have sometimes been challenged. In any event, the federal statutory situation is different, because Congress is not barred from creating qualifications for federal offices it creates. Still, there ought to be some discomfort about the practice. Could Congress apply it to federal judges, e.g., by requiring Presidents to pick an equal number of Democratic and Republican judges or Justices? Also, this presents First Amendment questions regarding the rights of potential appointees who may not be members of one of the two major parties; those questions are beyond the scope of this essay.





HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 35:4

special election to pick only a person from the party of the departed senator. State law could not, for example, require that only persons from the same party as the departed Senator have their names placed on the special election ballot. The reason for this seems intuitive: any legislative interest in maintaining or predicting the wishes of the electorate vanishes when the electorate has a chance to express its wishes itself.

Even if state law constrains only gubernatorial interim appointments, and not the state electorate at special elections, there are difficult (indeed seemingly insurmountable) constitutional hurdles standing in the way of state legislative action. One problem arises from the possibility of partisan gamesmanship; although the potential for result-oriented manipulation by state legislatures in this area might seem minimal (especially if we insist that any state law of this variety be in place before a Senator departs), a legislature could still decide, after each gubernatorial election and depending on the party identity of the governor and the current U.S. Senators, to enact or repeal such a law requiring party continuity. In short, there is always some non-trivial potential for partisan shenanigans.9 This gamesmanship possibility becomes even more problematic when considered against the backdrop, discussed above, 96 of the need for prompt filling of Senate vacancies and the variation in state laws.

The fact that some, but not all states, might constrain governors to pick from a single party might lead some governors upon whom maintenance of party consistency is imposed to balk in filling a The Wyoming episode last year itself provides an vacancy.

illustration. When Senator Thomas from that state died, there was the possibility of another Senate vacancy arising because of the tenuous health status of Senator Tim Johnson from neighboring South Dakota.97 Happily, Senator Johnson, a Democrat, recovered

95. State legislatures have occasionally timed the enactment of their laws concerning gubernatorial appointment power around the partisan affiliation of the current officeholders. For example, Massachusetts amended its Senate vacancy statute before the 2004 general election perhaps because U.S. Democratic Senator John Kerry's seat would have become vacant had he been elected President and the Governor, Mitt Romney, was a Republican. See also supra notes 57-58, and accompanying text (discussing the Colorado legislature episode).

96. See supra notes 88-92, and accompanying text.

97. See Kate Zernike, Ill Senator is Called Responsive; Incident Keeps Capital Riveted, N.Y. TIMES, Dec. 14, 2006, at Al. See also Adam Nossiter, Congressman Named to Fill Senate Seat in Mississippi, N.Y. TIMES, Jan. 1., 2008, at A9; Vikram David Amar, The Wyoming Governor's and the U.S. Senate's Unnoticed Options, Under the Seventeenth Summer 2008] CONSTRAINING GUBERNATORIAL POWER?

from the undiagnosed terminal illness. Had he died, Republican South Dakota Governor Mike Rounds would have had the power to appoint a temporary replacement. Because South Dakota statutes do not constrain the Governor there to maintain party consistency, Governor Rounds was expected to appoint a Republican to replace Democrat Johnson had a vacancy occurred.98 This variation among even neighboring states could easily cause a Democratic governor in Wyoming to balk at appointing a Republican temporary appointee, for fear of creating a Republican semi-incumbent to run in the special election. A vacancy could thus have persisted if partisan pressures had prevailed.

The costs of extended vacancies, and perhaps the tendency to cater to partisan influences, are especially pronounced in times of national emergency where the balance of party power in the Senate could have monumental consequences, and lead to a shorthanded Senate for a longer time. As Professor Levinson has argued, in the event of catastrophic vacancies caused by, say, terrorism, filling vacancies with somebody is of the utmost importance. Perhaps party discontinuity is a small price to pay to have the legitimacy that comes from increasing Senate membership when its ranks are depleted due to catastrophe.' To the extent that governors might avoid making temporary replacements because of the constraints imposed even by party-continuation statutes, these statutes seem troubling.

Perhaps more important, limiting the governor to persons of one party amounts to adding "qualifications" to the office of U.S.

Senator.1°° Term Limit U.S.A., Inc. v. Thornton 1 makes clear that neither Congress nor states, including state legislatures, are entrusted to add qualifications for the Senate beyond those already provided for in Article I-age, residency, etc.

But is maintaining the party identity of a state's U.S. Senate contingent between elections prescribing a "qualification"? Thornton suggests so. The Court there distinguished sharply between Amendment, for Filling the Senate Vacancy Created by Senator Thomas's Death, FINDLAW, June 8,2007, http://writ.news.findlaw.com/ amar/20070608.html.

98. See Zernike, supra note 97.

99. Levinson, supra note 92, at 71 (noting legitimacy and deliberation problems that arise when the legislative denominators get too small.) In his symposium commentary, Professor Levinson does not seem to address the problems of potential delay caused by disuniformity and the partisan wrangling it might generate.

100. This is also, of course, a challenge (in addition to those already discussed) that could be levied against more aggressive laws in Wyoming, Hawaii and Utah, as well.

101. 514 U.S. 779 (1995).

HASTINGS CONSTITUTIONAL LAW QUARTERLY [Vol. 35:4

"procedural" time, place and manner regulations over which states have power, on the one hand, and "substantive" qualifications for office over which they do not, on the other. Surely, prescribing party affiliation is not a "time, place, or manner" regulation. A state legislature, as noted above, certainly could not adopt such a limit on the state electorate; nor could Congress impose such a limit on a state's regular or special elections."

To be sure, the "time, place, and manner" clause by its terms concerns only elections-not gubernatorial appointments. An argument can be made that state legislative power over special elections under the "as the legislature may direct" language of the Seventeenth Amendment should track legislative power to regulate "times, places and manners" of regular federal elections. But, again, neither of these provisions seems to speak directly to the "process" of gubernatorial appointments.

But, if anything, the absence of specific textual state legislative power in the Seventeenth Amendment's appointment provisions would indicate less leeway for state legislatures to regulate governors than to regulate voters. Even if there is some intuitive appeal for allowing state legislatures some leeway in structuring gubernatorial appointment processes in ways that seem truly procedural, 3 specifying party identity would fall outside such leeway.

Another set of challenges to a state law mandating party consistency goes to the very premise of these laws in the first place.

Does maintaining party consistency really implement the will of the past voters? Suppose, for example, that Senate vacancies are caused by scandals that tar one political party or group of individuals, or that call into question the legitimacy of the (now departed) incumbent's election itself.1" Shouldn't governors be able to take account of

102. Id. at 832-33 (states can regulate elections only in the same way Congress can override under Article I, Section 4). Professor Levinson implies that Thornton's analysis is "wooden" and that he does not feel constrained by it, see Levinson, supra note 13, at 720, but as relevant judicial authority in the area, it must be accorded significant weight.

103. For example, few would doubt the power of a state legislature to prescribe the timeline for a gubernatorial appointment, even though there is no specific textual authority for it.

104. Oregon Senator Robert Packwood's arguably illegitimate elections are called to mind in this regard. It is also worth noting that the majority party in the Senate will not likely expel members to take advantage of a party mismatch between the governor and Senator(s) from that state because the 2/3 supermajority needed to expel a Senator requires either that expulsions really be bi-partisan or that one party dominates the legislature already and doesn't need to risk retribution down the line by abusing the expulsion power.

Summer 2008] CONSTRAINING GUBERNATORIAL POWER?

evolving attitudes by the state electorate about who is fit to serve?

Isn't that why the Seventeenth Amendment chooses them as the people's surrogates? After all, governors (unlike members of the legislature) are accountable statewide and ignore what the statewide voters want at any given moment at their (and their party's) peril. 5 So, might a legislatively mandated party consistency provision largely be a solution to a non-existent problem?

Related, if the premise behind "maintaining the voters' wishes until the next election" is a sound one, why limit ourselves to party affiliation? Could a state legislature require the governor to pick a temporary replacement of the same race, sex, age, occupation, views on abortion, etc.? And wouldn't proceeding down this slippery slope necessarily take us into the out-of-bounds realms of impermissible "qualifications for office?" 1" Some proponents of the Arizona law may point to the fact that the Constitution's Framers chose a six-year Senate term in part for reasons of stability and consistency."' But the kind of consistency and insulation and stability that these longer (and staggered) Senate terms bring about relates to the individual Senators and the Senate as an institution, not to the political parties who happen to control the Senate at a given time."

Indeed, if we really wanted to replicate the departed Senator until the next election, wouldn't the obvious approach be to have a Senator designate his own successor (presumably pre-departure) and have the governor be required by law to respect that apostolic succession?"° But wouldn't the plain text of the Seventeenth Amendment creating appointment power in governors, and not



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