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Edward Kennedy’s Gift to the Senate — and the Country

After a brief protest from Massachusetts Republicans in their state Senate, the commonwealth is on the verge of changing its law to allow Gov. Deval Patrick (D) to appoint an interim Senator until the special election to fill the late Sen. Edward Kennedy’s seat can be held in January.

[IMGCAP(1)]The short-term implications of the move are clear: getting the 60th Democrat in place before the crucial bargaining and votes occur on health reform, financial regulation and climate change. The short-term costs are also clear: Massachusetts’ move smacked of rank hypocrisy, since the law being revised was slapped into place by Democrats quickly in 2004 to prevent then-Gov. Mitt Romney (R) from appointing a Republican to fill the Senate vacancy if Sen. John Kerry (D) won the presidency.

But let’s step back and look at the long term. The plan soon to be in place was proposed by Kennedy as he neared his end — and he gave a wonderful parting gift to the American people. Kennedy provided a balanced and reasonable way to clean up the crazy quilt and often dysfunctional processes we use to fill vacancies temporarily in the Senate while maintaining the continuity of our government. The 17th Amendment that provided direct election for Senators also left it up to states to decide if governors could make temporary appointments to Senate seats. Most states allow appointments until the next general election, which can mean a full two years for the non-elected Senator. A handful of states block any appointments and require special elections no matter the circumstances of the vacancy.

The issue of what to do with vacant Senate seats exploded on the national scene in January, when there were five vacancies in the Senate — the seats of Barack Obama (D-Ill.) and Joseph Biden (D-Del.), along with two Senators, Hillary Rodham Clinton (D-N.Y.) and Ken Salazar (D-Colo.), who resigned to take Cabinet posts in the incoming Obama administration, and the deadlocked seat in Minnesota eventually filled by Al Franken (D). With 95 Senators, the bar for cloture to block a filibuster fell from 60 to 57 — but because all five were Democrats, the ability to overcome the filibuster dropped dramatically.

At the same time, the scandal of Illinois Gov. Rod Blagojevich’s attempts to sell the Senate seat vacated by Obama (and the ham-handed efforts of Roland Burris to grab the prize), along with the embarrassing fandango of New York Gov. David Paterson (D) as he sought to fill Clinton’s vacant Senate seat, caused a backlash against appointments, and a vigorous effort by Sen. Russ Feingold (D) of Wisconsin — a populist haven where no appointments are allowed — to amend the Constitution to ban any appointments at any time.

Now the issue is front and center again because of Kennedy and the extended search by Florida Gov. Charlie Crist (R) to fill the seat vacated by Mel Martinez (R) — a seat Crist himself is seeking in the November 2010 election.

Massachusetts’ Democratic legislative leaders were long reluctant to discuss changing their law while Kennedy was still alive — to do so would acknowledge his impending demise. At the same time, they knew that efforts to reverse the law would highlight their own hypocrisy. But Kennedy transcended the whispers about this problem and confronted it directly, writing a letter to Patrick and the leaders of the state House and Senate asking them to pass a law to provide continuity in the Senate seat in the event of a vacancy. He offered a specific plan, a gubernatorial interim appointment until a special election can be held, with a twist in his request, that the temporary appointee pledge not to run for the seat. Kennedy’s letter changed the political dynamic. The change is to be welcomed for much larger reasons.

One is the fact that any Senate vacancy can have huge implications for policy, especially in this polarized environment. One vacancy out of 435 in the House is nowhere near as significant as one out of 100. The situation earlier this year, with five Senate vacancies, pointed out another twist on the vacancy issue. It is a good thing when presidents reach into the Senate for Cabinet or other key posts; it broadens sensitivity in the executive to the importance of Congress, smooths communications between the branches, and expands the talent pool for a president. But if there are no appointments at all under any circumstances for the Senate, presidents will rarely if ever choose a Senator for the Cabinet; the loss of a Senate vote for five or six months would be too costly.

Now throw in the transcendental issue. On Sept. 11, 2001, United Flight 93 was headed for the Capitol Dome; if it had not crashed in Pennsylvania, it would have struck at around the same time as the plane that hit the Pentagon. The House was in session doing morning business; the devastation could easily have killed or incapacitated more than half the Members. With no ability to replace them until special elections months in the future, and with the Constitution explicitly requiring half the Members to do any official business, the result would have been no Congress, and the equivalent of martial law, at the most dangerous time in modern memory.

In the Senate, the subsequent anthrax scare showed its vulnerability — but there, at least, some devastating attack would have resulted in a more supple response, with most states enabling governors to pick temporary replacements to replenish the body and get it up and running quickly. The 2004 move by Massachusetts, the populist drive in many other states, and the concerted effort by Feingold have pushed us closer to a Senate that, like the House, cannot have appointments even as stopgaps until an election many months off. Meaning no Senate at all after a catastrophe.

Appointments that can last for two years, with many being made by governors of the opposite party of the departing Senator, with most appointees seeking the seat in the forthcoming election, and with often embarrassing politicking (and occasionally bribery) surrounding the appointment process, have many wrongheaded and even loathsome qualities. But moving to no appointments period is a huge step backward when it comes to ensuring that our first branch of government is up and running quickly in the event of a catastrophe.

Sen. Kennedy, in an admirable statesman-like gesture, has underscored why that trend ought to be reversed — and why his plan, to allow appointments only until an expedited election can occur, with the appointees declaring themselves non-candidates for the election should be universally applied. The way Massachusetts made its law, and the consequences of it, are cringe-worthy. Now, thanks to Kennedy, Massachusetts can be a model for the rest of the states.

Norman Ornstein is a resident scholar at the American Enterprise Institute.

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