Monday, January 26, 2009

Feingold Amendment would eliminate Senate appointments

Feingold Amendment would eliminate Senate appointments

Wisconsin's Russ Feingold has introduced a constitutional amendment that would end appointments to the U.S. Senate and have states go straight to a special election. It's a good idea that probably won't get far.

Appointments have been in the spotlight lately, with a big cluster of four appointments connected to the new presidency and unusual controversies. Only Colorado appears to have pulled it off without too much trouble; we've seen a botched internal knife-fight in New York, cronyism and seat-warming in Delaware, and the whole bizarre opera buffa in Illinois.

The last time the issue of Senate appointment was this high-profile was in 2001, with Dick Cheney breaking a 50-50 Senate tie, and open speculation that GOP control depended on 98 year old Strom Thurmond maintaining a pulse (South Carolina had a Democratic governor at the time). Jim Jeffords broke that impasse, and in 2009 Democratic control is strong enough that it doesn't hinge on any one breathing body.

In fact, Nate Silver at fivethirtyeight points out that at the moment, appointment is a wash: "There are now 14 Republican senators that could and presumably would be replaced by Democratic governors if they deceased or decided to resign from the Senate... likewise, there are 14 Democratic senators who would presumably be replaced by Republicans." If you were numbers-geekier you could try to break that out by average age, but if neither John Deeth or Nate Silver is numbers-geeky enough to do it, you probably aren't either.

Lest we forget, senators were elected by state legislatures until the 16th Amendment, one of the pet issues of the Progressive Era (let us soon be calling that the First Progressive Era) in 1913.

Silver also has a map of the laws in different states.

Senate Appointments and Party Switches

Ohio 1974. Nixon names Republican William Saxbe as Attorney General; governor Gilligan (Skipper!) appoints Democrat Howard Metzembaum. Metz loses the primary for the full term to John Glenn. (There was a long tense history there; Metzenbaum beat Glenn in the 1970 primary but then lost the general. But then he came back in 1976 for three full terms alongside Glenn. Homestate senators of the same party don't always luuuv each other.)

New Jersey 1982. Democrat Harrison Williams of ABSCAM fame resigned one step ahead of expulsion. The GOP governor named Nicholas Brady, whose name you still occasionally see on money as he was later Treasury Secretary under HW. (I think that's a prerequisite for Treasury Secretary: tiny handwriting so you can sign all the money. Maybe that's why Grassley voted against Geithner; his writing might be too big.) Brady was a placeholder who didn't run, and Democrat Frank Lautenberg won a full term in November `82.

Washington 1983. Old-line Democratic hawk Scoop Jackson died just after being re-elected. Republican Dan Evans, a universally respected former GOP governor (Iowans: think Bob Ray), is appointed and wins the rest of the term in a November `83 special. Evans retired in `88.

Nebraska 1987. Moderate Democrat Ed Zorinsky unexpectedly dropped dead. GOP governor Kay Orr appointed unknown David Karnes, who almost lost his primary and then got steamrollered by Bob Kerrey in 1988.

Pennsylvania 1991. John Heinz died in a chopper crash, and governor Bob Casey Sr. named Harris "who?" Wofford. Wofford started out 20 or more points behind former governor and sitting U.S. Atttorney General Dick Thornburgh. But in a November 1991 special that was widely seen as forecasting Republican problems in 1992, Wofford won a miracle. He was even, briefly, mentioned as a possible VP candidate in 1992. His luck ran out in `94 when he got Santorumed.

Georgia 2000. Paul Coverdell died, and Democratic governor Roy Barnes appointed his predecessor, Zell Miller. He may have been the only Democrat capable of holding the seat in the fall 2000 special, but in the end it barely counted as a Democratic gain and Zell ended his public career by endorsing George Bush in 2004 and challenging Chris Matthews to a duel.

Asterisk: Minnesota 2002. Yeah, I know Jesse Ventura sent fellow Independence Party member Dean Barkley to DC for a lame-duck session in 2002. But the appointment was the day before the election for the full term.
Some of the states with laws beyond unrestricted gubernatorial appointment had special circumstances in their histories. Wyoming, for example, passed its same-party law after a Democratic governor appointed himself to the seat of a deceased Republican Senator-elect. (We saw this in action in 2007 when Democratic Gov. Dave Freudenthal had to pick Republican John Barrasso from a list of three submitted by the Wyoming GOP.) Hawaii has a same-party law because it has a veto-proof Democratic legislature, two octogenarian Democratic Senators, and a Republican governor. And Massachusetts passed its no appointment law in 2004, so that Mitt Romney couldn't replace President John Kerry. Worked out so well for both of them.

None of the 2009 appointments changed party control My semi-comprehensive mental review (see sidebar) shows only six times in the last 35 years when a Senate appointment has switched the seat's party, and that's if you count Zell Miller as a Democrat. (And whenever you mention Zell Miller you have to show the clip.)

None of those appointees lasted longer than the partial term (though some won special elections to complete said term).

As for the chances for Feingold's amendment, it's hard to tell yet. Amending the Constitution requires a big supermajority: two-thirds of Congress and three-fourths of the states. Disregarding the weird, 200-year process of the 1992 27th Amendment on congressional pay raises, the last time there was that level of critical mass was at the height of the Vietnam War when we decided old enough to fight, old enough to vote. (But apparantly not old enough for a beer.) As soon as an issue becomes partisan and controversial in any way, like the ERA did in the 1970s, that supermajority is gone.

And unless an issue is constant front page news, like the Vietnam War, the critical mass doesn't accumulate. Right now Senate appointments aren't even to the level that congressional pay and the check-bouncing scandal were in 1992. Even the months of coverage of the 2000 Florida recount weren't enough to get rid of the Electoral College. Right now, Senate appointments are just a personality story, fueled by Caroline Kennedy's fame and Rod Blagojevich's chutzpah.

This doesn't mean Feingold doesn't have the right idea. It just means that even the unusual level of attention we're seeing right now probably isn't enough to make this reform happen.

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