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MA-Sen: Kennedy Requests Change in Succession Law

by: James L.

Thu Aug 20, 2009 at 3:05 AM EDT


Boston Globe:

Senator Edward M. Kennedy, in a poignant acknowledgment of his mortality at a critical time in the national health care debate, has privately asked the governor and legislative leaders to change the succession law to guarantee that Massachusetts will not lack a Senate vote when his seat becomes vacant.

In a personal, sometimes wistful letter sent Tuesday to Governor Deval L. Patrick, Senate President Therese Murray, and House Speaker Robert A. DeLeo, Kennedy asks that Patrick be given authority to appoint someone to the seat temporarily before voters choose a new senator in a special election. [...]

In his letter, which was obtained by the Globe, Kennedy said that he backs the current succession law, enacted in 2004, which gives voters the power to fill a US Senate vacancy. But he said the state and country need two Massachusetts senators.

"I strongly support that law and the principle that the people should elect their senator,'' Kennedy wrote. "I also believe it is vital for this Commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election.''

As it is right now, a special election would be held within five months of a Senate vacancy occurring, leaving the seat unoccupied for that interim period. That law, as you may remember, was put in place in 2004 to prevent Mitt Romney from appointing a Republican Senator to John Kerry's seat. The Globe writes that Democrats in the Massachusetts legislature -- as well as Deval Patrick himself -- are not keen on tinkering with the law again, nervous about being accused of "engineering a self-serving change to help their party". However, Kennedy's personal appeal might have some sway.

Of course, it's pretty sobering to even be writing a post on this subject.

(H/T: Politico)

James L. :: MA-Sen: Kennedy Requests Change in Succession Law
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God bless Senator Kennedy
But yes the MA legislature needs to change the law to make sure we have a vote here.

The Senate needs to adopt a rule
that, in addition to allowing them to remove a Senator with a two-thirds vote (which they can already do), also allows them to make a temporary removal based on illness or incapacity to serve.  The rule could specify that the governor of the removed Senator's home state must appoint a new Senator from the same party as the old one, and that the Senate would reinstate the old Senator when the disability was over.

The way this would work is that the Senate could declare Byrd and Kennedy incapable of serving and remove them temporarily, without having to actually kick them out of the Senate.  Manchin and Patrick would then appoint new Democratic Senators who would serve in place of Byrd and Kennedy, and if Byrd and Kennedy ever got better and could come back, the Senate could just dismiss the interim Senators and reinstate Byrd and Kennedy.

This sounds like an ageist measure, but it would actually be really beneficial for old Senators and prospective Senators, because it would immunize them against the kind of campaigns Ed Case and Rob Andrews have run in recent years -- namely, "Vote for me because the other guy's old and he might be too sick to be a Senator."  Lautenberg and Inouye could just say, "Doesn't matter, because you'll still get a functioning Democratic Senator, and when I get better I'll come back and vote again."  It would also allow someone like Mike Castle to more easily become a septuagenarian freshman Senator, because people wouldn't have to worry about his health.

If I understand procedure correctly, this could be accomplished through the creation of a Senate rule, which would require a simple majority vote.  I can't think of anyone who would be opposed.

The Crolian Progressive: as great an adventure as ever I heard of...


That's actually a good idea,
though, of course, it cuts both ways, as you've noted. If a bunch of old Democrats get sick in a Republican year, there could be major trouble, especially if the voters don't like the interim replacement, who presumably becomes the incumbent if the old Senator becomes permanently incapacitated.

I'd also support picking the interim Senator the way Wyoming does it - the incumbent's party picks three names out of a hat to submit to the governor, who has to pick one of them. That way the Gov can't just pick some nobody (Bennet), waste two months dithering (Gillibrand), or sell the seat to the highest bidder (Burris). Knowing Patrick, if he had appointment power, he'd probably appoint his dog. (Still better than Romney, who'd appoint Genghis Kahn to burnish his presidential credentials as a "real conservative".)

Of course, it won't ever be introduced, because the Senate has far too many post offices to name and far too many lobbyists to be bought off by to bother introducing any legislation that actually makes sense. Except for Bernie Sanders, of course, but anything he introduces is promptly ignored and/or plagiarized by his own caucus.  


[ Parent ]
The rule change I'm suggesting
wouldn't have any effect on who would take office if the real Senator died.  Technically, the Senate has complete control over who's seated in the Senate, but it's generally been accepted that the Senate will yield to state law in case of death or resignation of a member.  So if Patrick appointed an interim Senator and then Kennedy died, the interim Senator would immediately give way to whatever state law prescribed -- another appointment, or a vacancy, or a special election.

The problem I have with the Wyoming system is that it gives too much power to the partisan committee when the Senator being replaced isn't in line with his or her party.  Say you're a Republican and you voted for Lieberman, but he gets sick and Governor Rell has to replace him from a list of three candidates generated by the state Democratic Central Committee.  They're not going to nominate people who represent what you voted for -- they're going to give you a bunch of bedrock liberals.  On the flip side, if Rell gets to appoint her favorite Republican, it's actually going to be someone a lot like Lieberman.

This cuts both ways, of course -- as when Governor Napolitano appointed her nominally-Republican press secretary to fill a Republican seat on the Arizona Corporation Commission.  But at least when it's the Governor's choice, the Governor's been elected statewide by the people, which can't be said for some party central committee.

The Crolian Progressive: as great an adventure as ever I heard of...


[ Parent ]
I doubt it's Constitutional
Since elections, terms of service, and means by which congress can remove it's members are stipulated via Article I.

Politics and Other Random Topics

24, Male, Democrat, NM-01, Chairman of the Atheist Caucus, and Majority Leader of the "Going to Hell" caucus!


[ Parent ]
other comments below say that Texas
apparently already does this (or at least something very similar).

[ Parent ]
The suggestion here is a temporary removal based on health or something like that
Texas's law is based on appointing a temporary placeholder (though I don't think anyone has actually sued on it, it's still entirely possible that it would be ruled unconstitutional by the Supreme Court).

Politics and Other Random Topics

24, Male, Democrat, NM-01, Chairman of the Atheist Caucus, and Majority Leader of the "Going to Hell" caucus!


[ Parent ]
God it's just so sad to even think about this
         I can't imagine the US senate or politics without Ted Kennedy.

On potentially changing the law
You know I kind of have mixed feelings about this. I still think as a general principal, people should be allowed to choose their senators, especially after the messes we had in New York and Illinois. However if Senator Kennedy was to die next week or sometime in the next few weeks. That could seriously put health care at risk. I think actually Texas has a pretty good system,where the governor appoints a placeholder and there's a special election that occurs in the next few months.  

Uh, isn't that what Kennedy is asking for?
Or did I misread the article?

[ Parent ]
Oh your right
I really just skimmed the article at first.  

[ Parent ]
Wow.
Thanks, Sen. Kennedy.  Very classy.

So...
1.  Who does Patrick pick?
2.  Does Byrd follow Kennedy's lead (in retiring)?


Also...
... how long does it take for MA to pass this law?

[ Parent ]
Byrd
Byrd was out for awhile, but, no, I think he sticks with his gig until he passes on.  The only thing I could imagine hastening the process would be a Republican governor in West Virginia.

30, male, Democratic, CO-01

[ Parent ]
Wow
All I can do is pray that he lives to see the bill signed into law.

People have been saying that he would, potentially, be unable to vote yes on the bill, due to his health.  But I can't imagine that there is anything that could keep Senator Kennedy from voting aye on a universal health care bill, short of death.

God Bless Senator Kennedy.


Neither can I
This whole thing reminds me of what happened to Clair Engle (D-CA) with another famous piece of legislation. Engle had been elected in 1958, but in 1963, he got brain cancer, which left him paralyzed and unable to speak.

Nevertheless, when the Senate voted on the 1964 Civil Rights bill, he was wheeled in and signaled his affirmation by pointing to his eye. The act passed, and Engle died a month later.

I can only hope Senator Kennedy gets to have the same opportunity.

I've had some beefs with his past personal behavior, but I've always respected all he's fought for and achieved as a senator.

The man himself said it best: "The Dream can never die!"


[ Parent ]
Sad, but
I wouldn't expect anything less of Kennedy. I think not getting to be President actually made him a better Senator in the end. Most other Senators in that situation would've blundered back off into Senatorial anonymity (um, John Kerry?) or skulked around K street for a while, but Kennedy went back to the Senate, put himself on the forefront of important issues for another 30 years, and actually got stuff done. In my view, that makes him one of the very few US Senators who has actually lived up to his job description. Kennedy could always be counted on in my lifetime to do the right thing. He will be missed.

Of course, the General Court being as inherently slimy and self-serving as it is probably won't honor Kennedy's wishes, but if I were Patrick in such a situation (and I'm very glad I'm not) I would appoint John Olver as a placeholder. He's a solid progressive who would do Kennedy proud, he's about to lose his House seat to redistricting, and his combination of age and being from west of Worcester means he wouldn't win the inevitable 36 way primary even if he wanted to. Plus it gives more time for the serious contenders to build up an operation without having to defend the seat. Olver was my Congressman and would make a fantastic Senator, even as a two year placeholder. That way we at least get another two years of Kennedy-lite before some triangulating scumbag like Markey or (shudder) Niki Tsongas takes it over.  


This Southern Democrat loves Ted Kennedy
I remember when I was 9 years old and Ted Kennedy was running against Jimmy Carter.  My parents, who had voted for Carter and who loved him too, ended up voting for Ted Kennedy.  I asked my dad why many years later, and he said that Ted Kennedy represents all the things that he loves about America and the Democratic party as a whole.  My Dad's politics are more in line with a Jimmy Carter or a Bill Clinton, but he has always been captivated by the Kennedy legacy.

I know it will be a sad day when Kennedy leaves the Senate.  Whatever happens with replacing Kennedy, there will only be one Ted Kennedy.

40, male, Democrat, NC-04


It's funny
Kennedy is probably the only Northeastern politician who has a bigger following in the rural South (thanks to Southern populism) than he does in the rural Northeast. In the neck of the woods that I grew up in, Kennedy was mostly seen as an entitled city slicker with disgusting personal habits who only represented his dying political dynasty. Ironically, most of the people saying this were New York trust funders who never worked a day in their lives. It makes sense. Personal habits aside, Kennedy actually represents real people in spite of his background.

Being represented by Kennedy is actually one of the only things I miss about living in Massachusetts, just as Bernie Sanders is basically the only thing I still miss about Vermont. Especially now that I live in Indiana. I've been represented by Ted Kennedy. Ted Kennedy was a great Senator. And Evan Bayh, you're no Ted Kennedy.  


[ Parent ]
Evan Bayh
is no Birch Bayh either...

40, male, Democrat, NC-04

[ Parent ]
Yup.
I actually said that when I sent him that letter blasting him for being a spineless weasel on healthcare reform.

He's a million times better than Stutzman, though I refuse to vote for either of them. I'm going for Mickey Mouse for that race and hoping for the best.  


[ Parent ]
I'm jealous
that you got to be represented by two great Senators! Well, I got to be represented by Boxer briefly in 1993 and 4. Since then I've been stuck with first McLame and Kyl, and then "Foreclosure Phil", and now KBH and Big Bad John.

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28, New Democrat, Female, TX-03 (hometown CA-26)


[ Parent ]
Hmm....
I've actually had a pretty decent set of Congresscritters, overall:

House: Sanders (great), Olver (great), Frank (great), McDermott (great), Wu (useless), Rehberg (worse), Welch (meh), Andre Carson (great). Rehberg is the only total dud, as Wu, much as I dislike him, is still better than a Texas Republican.

Sen: Leahy (decent), Jeffords (decent), Kennedy (great), Kerry (meh), Murray (good), Cantwell (meh), Wyden (ok), Smith (awful; I'm jealous of Oregonians who get Merkley now), Baucus (blah), Tester (ok), Sanders (great), Lugar (ok for a Republican), Bayh (blah). It probably says something that Gordon Smith is probably the only truly terrible Senator I've ever had, and also the only one on this list to be defeated for re-election. I think Bayh and Baucus tie for worst Democrat.

I feel for you having to be stuck with Gramm and Big Bad John. (And Gov. Goodhair, who would be worse than both of them if Gramm weren't already one of the worst people who ever lived.) On the bright side, at least if you're going to be stuck in an overdeveloped desert hellhole regardless (I assume you lived in SoCal?) Texas gives you a lot more bang for your buck, just at the cost of political sanity. (Too much of my extended family lives in or around Houston, so I really do feel your pain.)  


[ Parent ]
Yes I did live in SoCal, and I badly want to go back.
And even living in Texas, finding decent work is tough. I got a part-time 8/hour job in June after 1 year of searching, and my BF has been unemployed for 3 years having looked for computer science work.

My blog
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28, New Democrat, Female, TX-03 (hometown CA-26)


[ Parent ]
I didn't mean work.
Finding work sucks in this economy no matter where you go.

I meant that Texas has some of the lowest property values in the country. (Also, if you want progressive Congressional representation and your BF works in IT, consider Seattle. I could actually find temp work there 4 years ago, and IT people are always in demand, though the market is saturated.)

Anyway, this thread is straying into the "not for SSP" danger zone, so I'll just leave it at "good luck". Good luck!  


[ Parent ]
Thanks. eom


My blog
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28, New Democrat, Female, TX-03 (hometown CA-26)


[ Parent ]
I don't have any beef with the Kennedys...
but isn't this the type of thing their critics are always accusing them of? Wanting a special set of rules and standards for them to conform to whatever their preference du jour is?

I hope Ted Kennedy is able to stay on as long as possible, but if his concern is ensuring that MA voters have two senators - he clearly has the power to guarantee that in his own hands, simply by resigning.

In fact, one can argue MA has not had "two voices speaking for the needs of its citizens and two votes in the Senate" while he's been in convalescence fighting his illness.


That's not true
If he resigns, the seat remains vacant for five months until they hold a special election.  Right now it doesn't matter what he does -- under the current law, he can't help but create a five-month vacancy if he resigns or if he dies.

You can say he should have resigned five months ago, but five months ago he was in a lot better shape and the doctors were saying he might have several years left.  It was a legitimate call for him to stay in the Senate.  Ditto for Byrd, who was in fine shape until just a few months ago and was even trying to retain an active committee chairmanship.

The Crolian Progressive: as great an adventure as ever I heard of...


[ Parent ]
You're right...
I better see where he's coming from now.  In retrospect he probably should have hung it up in mid 2008.

[ Parent ]
Exact opposite
The Kennedy's are meant to be all about raw power for themselves. Ted is doing this for the representation of the people of Massachusetts. It would be much easier to follow the Strom Thurmond route. Frankly, it doesn't surprise me in the least that he is doing the right thing.

[ Parent ]
I really hope
that the factional legislature will do this.  

Texas Model
How come other states adopt our method of replacing vacancies? An immediate appointment by the governor followed by a special election a few months later. It's about the only thing our state got right.

26, Male, Democrat, TX-26

I agree
With the caveat that the placeholder has to be from the same party as the predecessor a la Wyoming, Hawaii and Arizona.

[ Parent ]
how's this for a hybrid?
When Senate vacancy occurs, the governor has to set an election date.

Then the governor will appoint a Senator who is prohibited from being a candidate in the special election.

If you want to further tie the governor's hands you can require the candidate be approved by the legislature.


Requiring legislative approval is a nightmare
because the legislature can hold up the appointment for partisan reasons.  The whole point of this is to get a Senator into the vacancy very quickly.

As for prohibiting the interim Senator from running for election to the seat, I'm not sure that's necessary.  Incumbency certainly helps a candidate, but I'm not sure it helps all that much when you're talking about a four- or five-month incumbent.  I'm also not certain it's Constitutional to prohibit an eligible candidate from running for office.

The Crolian Progressive: as great an adventure as ever I heard of...


[ Parent ]
Kennedy's request
I agree that it would likely be unconstitutional to require that a person who is appointed not run in the special election.  Such a law would run into trouble in the same way that term limits for Members of Congress do, which is that the people are basically allowed to pick an individual who meets the age, citizenship, and residency requirements (the Constitutional requirements for office) and the legislature can't add to those qualifications by saying, for example, "plus you can't already have been a Senator for x terms."  (See U.S. Term Limits v. Thorton.)

That said, Kennedy has asked Governor Patrick to personally make sure to pick somebody this time who is not running, so that that person does not get an unfair advantage in the special election:


Mr. Kennedy also asked that Mr. Patrick "obtain, as a condition of appointment of the interim Senator, an explicit personal commitment not to become a candidate in the special election."

...

Asked why Senator Kennedy would not want a temporary appointee to run for his seat in the special election, Mr. Coley said he "wanted to ensure that whomever received that appointment did not have any head start or advantage in the special election."


- http://www.nytimes.com/2009/08...

[ Parent ]
Right
And I think it's generally a good idea to choose a placeholder candidate.

On the other hand, sometimes a good case can be made for picking someone who's actually running for the seat.  When John Chafee died, his son Lincoln was already running for his Senate seat (because John was retiring) and he got the appointment.  If you're trying to be faithful to the voters and pick someone who will replicate the dead Senator's views, you can't do much better than picking the man's own son, whether he's running or not.

Another situation where this was appropriate was when Mel Carnahan died just before the election and his wife Jean was appointed to the seat after he won posthumously.  The governor had told people who he was going to appoint, and forcing him to appoint a placeholder after the public had essentially voted on the appointment by proxy would have been pretty unfair.

The Crolian Progressive: as great an adventure as ever I heard of...


[ Parent ]
In the latter case,
the governor would have been aware of the law mandating a temporary appointment and so would presumably either have asked Carnahan to run in the special election and forgo the temporary appointment, or else just take the temporary one.

[ Parent ]

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