Saturday, August 22, 2009

Blagojevich Appointment Spurs Call To Amend Constitution

The appointment of Roland Burris to the US Senate by disgraced Illinois Governor Rod Blagojevich spurred no small reaction in the Senate on both sides of the aisle. Even though this seems like eons ago, the whole sorry affair occurred only last December upon the election of Barack Obama, the former Senator, to the Presidency. The perpetual hissing contest of the Illinois political snakes had spread to the halls of Congress.

Recently, in a move that most of us missed, the Senate Judiciary Subcommittee on the Constitution voted by 5 to 3 to submit to the full Judiciary Committee and the Senate a resolution amending the Constitution to change the manner of seating a Senator filling an empty seat.

Once again, the left hand of the Democratic Party doesn't know what the other left hand of the Democratic Party is up to. Senator Russ Feingold (D-Wisconsin) brought the resolution to the subcommittee. A liberal who also seems to have a sense of morality and fairness, Feingold was appalled by the appointment of a political hack and former failure in the state Attorney General's office by a governor who was caught trying to sell Obama's former seat. I can almost feel sorry for Burris. From what we know, he wasn't even the high bidder.

The proposed Feingold Amendment favors direct elections over gubernatorial appointments to fill Senate vacancies. It would become the Twenty-Eighth Amendment if it passes. That requires a two-thirds vote in both houses of Congress followed by ratification by three-quarters of the states. I hasten to add that I don't think it will survive even the Senate vote, but I've been wrong before.

Said Feingold: "The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end." It is unclear which other scandals Feingold is referring to, but it's very clear the trigger was the Blagojevich pay-to-play fiasco.

I have never been a fan of the 17th Amendment, but not for the same reasons as Feingold. Feingold targets Paragraph 2 which provides "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." My objection is to the full early twentieth-century Amendment itself. It was a major step towards direct democracy and away from the republican form of government set up by the Founders. Previously, the House represented the People directly while the Senate represented the States. Senators were appointed by the governor and had to be confirmed by the state legislature. In changing that system from one which put the brakes on the will of temporary majorities by creating a more conservative body to balance it, the 17th Amendment provided for direct election of Senators. Thus, the Senate became a body with two members from each state, elected in the same manner as the other house, but with extra percs and longer terms in office. The former balance was destroyed. But that's an issue for one of my constitutional history courses, and not for this blog.

Feingold goes on: "In 1913, the Seventeenth Amendment to the Constitution gave the citizens of the country the power to finally elect their senators. They should have the same power in the case of unexpected mid-term vacancies, so that the Senate is as responsive as possible to the will of the people." Feingold received bipartisan support on the subcommittee from Republicans John McCain (R-Arizona), Richard Durbin (D-Illinois), and Mark Begich (D-Alaska). Small problem for Feingold--he forgot to check in first with Ted Kennedy (D-Chappaquiddick).

The proposed Amendment would entirely disallow gubernatorial appointments, and leave the vacancy in place until the affected state governor issued a writ of election and the state held an election. It would be up to the states to determine how those special elections would be implemented. The present system has worked relatively well since its inception. Despite some Burris-type appointments, most have served the will of the people. It isn't politically expedient (a Republican governor can replace a Democratic Senator with a member of his or her own party). But it actually serves exigent circumstances better than a delay and a vacancy in the Senate. And from my perspective, it further erodes the right of the states to determine their own rules for the seating of Senators from their own state.

So what does Senator Kennedy have to say about appointments? He's for them, although he used to be against them, except when he was for them. Confused? Let me explain (in case you missed the note in yesterday's SF Diary). Kennedy just lobbied the Massachusetts governor and legislature to pass new legislation allowing for interim appointments (in other words, the exact opposite of the Feingold resolution). Currently, Massachusetts law does not allow for gubernatorial appointments to the Senate. And why not? I'm glad you asked. Back when Senator John Kerry (D-Peoples Republic of Massachusetts) was running for President, Massachusetts had the other kind of statute which allowed the governor to appoint an interim Senator to fill a vacancy. Foolishly, Kennedy and the other Democrats in Massachusetts thought Kerry might actually win the election. That meant, God forbid, that the Republican governor of the state (Mitt Romney) would be able to appoint a Republican to replace Kerry. So with heavy influence from both Kerry and Kennedy, the state legislature passed a statute eliminating gubernatorial appointments.

So now you have liberal Feingold, full of good intentions (and we know what the road to hell is paved with) on one side. On the other side is the liberal Kennedy, full of political intentions. This is probably all academic anyway. Only Alaska, Connecticut, Massachusetts, Oklahoma, Oregon and Wisconsin (Feingold's home state) forbid gubernatorial appointments. Since 1913, 184 Senators have been appointed by governors, and a very small handful have actually been involved in any scandal. There have been far more scandals in the actual elections than in the interim appointments. And it is important to note that in all cases, the appointment is not permanent. All states, as provided by the Constitution, must still conduct the special election. The current system merely avoids a vacancy until the election can take place.

I believe the appropriate expression for the resolution is "using an elephant gun to kill a gnat." No system will ever be perfect (we're entitled to fair elections, not perfect elections). My personal view of the Constitution is that the Founders made it difficult to amend for extremely sound reasons. Too many amendments to solve too many unimportant or trivial matters, and the great bedrock of American republican government becomes just another messy collection of conflicting laws. It's bad enough that we have Supreme Court Justices who alter the Constitution by fiat, we don't need the Senate helping them.

Interesting political note: Recent Senators who have entered the Senate via gubernatorial appointment include Burris (D-Illinois), Bennet (D-Colorado), Gillibrand (D-New York) and Kaufman (D-Delaware). Senator Reid opposes the resolution and comes from a state which allows gubernatorial appointments. Senator Durbin supports the resolution, and also comes from a state which allows such appointments. But Durbin's support may be more apparent than real. He is the other Senator from the state which stirred up the controversy in the first place. Yet both Reid and Durbin voted not to seat Burris, using very lame arguments to support their position. Political embarrassment is not a proper ground for refusing to seat a Senator.

As it stands now, Feingold has major, and probably insurmountable opposition. Those in the Senate who have expressed disapproval of the resolution include Kyl (R-Arizona), Cornyn (R-Texas), Senate Majority Leader Reid (D-Nevada), Kennedy (D-From You Know Where) as well as his potential successor, and the Chairwoman of the Senate Rules Committee, Feinstein (D-California).

16 comments:

Writer X said...

I'm so glad you wrote about this, LawHawk. This Kennedy flip-flop has been a heated topic of discussion among my friends lately. At least Kennedy doesn't make apologies for being a hypocrite. Yet, the media, his fans, even his state, always paint him like he's some kind of hero. I don't get it. Never have. I think he's one of the biggest criminals in the Senate. He should have been serving the last 40 years in a prison cell.

AndrewPrice said...

Nice article Lawhawk, I had the same thoughts heading across country. Well done.

LawHawkSF said...

WriterX: I couldn't agree more. They've given a drunken, womanizing, Harvard-cheating, leftist the appellation "The Lion of the Senate."

To paraphrase Joseph Welch at the Army-McCarthy hearings--"Have you no sense of decency, Senators, at long last? Have you no decency?" Even without the death-by-drowning of Mary Jo Kopechne, Kennedy would have been a mere footnote in history without the family name and money.

Pittsburgh Enigma said...

"Ted Kennedy (D-Chappaquiddick)"... good one! :-D

Yeah, the Kennedy thing really made me angry. Has this even been covered in the mainstream media? It's been so long since I've actually watched, read or heard the MSM.

And I look forward to an article on the 17th amendment. Do you think there's any chance of it ever being overturned? I'm afraid the average American might not appreciate what it means to move closer back to a Republic again.

LawHawkSF said...

Andrew: I'm picturing Ted Kennedy in the afterlife, sitting on a chair at the compound, looking out to sea, and seeing nothing but thousands and thousands of wind turbines.

LawHawkSF said...

Pittsburgh Enigma: I do watch the news on the broadcast channels just to see what they're saying about us. I have seen exactly one comment in two days about the Kennedy switcheroo, and it was favorable.

As for the Seventeenth Amendment, the chances of it being repealed are somewhere between zero and none. Nobody teaches the republican form of government anymore, and two generations think that direct election of Senators is somewhere in there with the Bill of Rights. Direct democracy, that totally-failed and impossible form of government has been hammered into people's minds for so long that the concept of a built-in restraint on the will of temporary majorities entirely eludes the vast majority of Americans.

My worst fear is that the last vestige of a republican form of government has been under continuous attack for seventy-five years, and is once again being attacked in Congress. The Electoral College stands as the last powerful bastion against direct democracy and in favor of State sovereignty. But ask any allegedly educated person today about the Electoral College, and he will tell you it's "anti-democratic" and the candidate with the largest number of votes nationwide should always win. Several states have already amended their rules for casting their own state's electoral votes so that it is quite possible that even if a candidate wins the most votes in that state, the state's electoral votes go either entirely or proportionally to the other candidate. To his credit, Ahnuld Schwarzenegger recently vetoed such a bill in California.

AndrewPrice said...

Lawhawk, I'm betting the afterlife for Senators looks a lot like the Senate, only without the perks.

Writer X said...

And let's not forget his autobiography (received a seven-figure advance for it) it coming out next month, I believe. I wouldn't even use it as a doorstop.

LawHawkSF said...

Andrew: That might just be the perfect eternity for them. No percs, and having to listen forever to each other's boring speeches.

WriterX: I assume it's ghost-written since he hasn't done his own work ever, including his cheating at Harvard. Will they be putting it on the fiction shelves?

Skinners 2 Cents said...

Great Article on Americas disturbing nobility.

I've often wondered how long it would be before we would see an end to the Kennedy legacy, if one can call it that.

This will sound terrible but I don't think that they can die fast enough.

I thought this nightmare was going to last a little bit longer when Maria threw her name in the hat to become the senator of NY. The Kennedy's are so used to getting their way that she was stunned to find out people had had enough of them.

I was yelling at the TV when I heard about it. "NO MORE KENNEDY'S OR ANY OF THEIR DAMN CHILDREN."

I would like to hear your take on the electoral college. Did the founders actually want a winner take all system? Or have we just become numb to the extent Gerrymandering has gotten to?

LawHawkSF said...

Skinners2Cents: I think the Kennedys will continue to decline. They're back-benchers who have done enough damage even in the House. But if they'll buy Ted as hero, who knows what they'll do if Teddy gets his bill through and they find some Kennedy clansman in Massachusetts to replace him? Remember, even Papa Joe didn't see much of a future for Teddy.

The Founders fully intended the votes of each state to be winner-take-all, although they didn't think of it in those exact terms. They just assumed that the candidate getting the majority in the state would get all the electoral votes the state was entitled to. Parties were a concept which they didn't like, and didn't want. They saw only candidates and states. The House got individuals acting on the national behalf, while the States elected the President and appointed the Senators. Balance, balance, balance.

The only grudging nod the early Constitutionalists gave to parties (which they called "factions") was the Twelfth Amendment (1804) which changed how the votes for President and Vice President were tallied. But it never actually said that the President and Vice President had to be from the same party (though that was nearly inevitable) once the first and second place vote-getters becoming the President and Vice President respectively was altered to its present form. But respecting the sovereignty of the several States, the Founders left it up to the states from the beginning to determine how their electoral votes would be cumulated.

Even with that revision, the early Constitutionalists gave considerable deference to the sovereignty of the states. They didn't want any one state dominating the national scene, so beside making the provisions for how the President was elected, they also added the stricture that the President and the Vice President could not be from the same state. And in case of a candidate not getting a majority in the Electoral College, the election went to the House--but not democratically. They still wanted the states, not the majority of voters, to have the ultimate power. So each state delegation in the House was given only one vote (in other words, one state, one vote).

AndrewPrice said...

Skinner, LOL! I agree with you about the Kennedys. They're like a plague of rats or something that try to spread out across our electoral landscape.

I am not a fan of dynasties, or of a permanent political class, or of seats being passed from father to son, etc. I firmly believe in term limits to keep our government fresh and to keep the corrupt from taking root.

LawHawkSF said...

Andrew: I'm feeling a very small amount of optimism about dynasties. One reason that I believe Hillary Clinton may have lost the nomination is that she was part of the Bush/Clinton/Bush/ Clinton continuum. It was starting to look like the War of the Roses, with no Shakespeare to write about it.

I also think it contributed to the highly-popular and very competent Jed Bush staying out of the picture. The Roosevelts are now utterly insignificant in politics, and seemed to follow the same path as the Kennedys. I'm not doing backflips over this seeming trend, but there is (shall I say it?) hope.

StanH said...

Well Lawhawk, a story that can only be told using politicians for players. The 17th amendment needs to be repealed, and as you say would never happen, unless we the people force it to happen. In this current struggle for our republic in see seismic changes coming to Washington, and maybe, just maybe in two or three election cycles some sanity can be restored to Washington. Kennedy …yuk! What a complete a$$, I see it as a treat that he’s getting snared in his own trap.

LawHawkSF said...

StanH: In his current physical condition, Kennedy is just pitiable. But he has done so much damage to the nation, that I find it hard to have much Christian charity towards him.

I hope you're right about the nation becoming sufficiently conservative some day such that we can stop dealing on a daily basis with crises created by the liberals and pay attention to regaining the concept of federalism laid down by the Founders. I am just afraid that the concept of direct democracy has become so deeply ingrained in the American psyche that the best we can do is keep it from expanding any farther. As William F. Buckley put it, "standing athwart history yelling 'stop!'"

MegaTroll said...

I know that you guys don't endorse, but I will not support another Clinton or Bush because I want nothing to do with dynasties.

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