The 28th Amendment

It's hard to even write anything today because it will just pale in comparison to Jon Stewart channeling the rage of 10 million blog posts last night. But I have a responsibility to my legions of fans, so...

Let's talk the Senate appointment process!

Russ Feingold held a hearing this week on his proposed Constitutional amendment, to mandate special elections for all Senate vacancies, just as there are for House vacancies. With the spectacular flameout of the Blagojevich/Burris fiasco and other appointments handled poorly, there is no better time to get this done. And the number of appointments - 6 in the past two years - is robbing the people of their ability to choose their own representatives.

Mr. Feingold said he was motivated not only by the furor surrounding the disputed appointment of Roland W. Burris to the Senate by Gov. Rod R. Blagojevich of Illinois, since impeached, but also by the sheer number of appointees in the turnover after the election of President Obama.

“I really became troubled when I realized that such a significant percentage of the U.S. Senate was about to be appointed rather than elected by the people,” said Mr. Feingold, who will convene a joint House-Senate judiciary hearing on the proposal on Wednesday. “I think of it as a right-to-vote issue.”

At the hearing, Sen. Mark Begich testified to the personal experience in his family with this issue:

In October 1972, the Alaska Democrat’s father, Rep. Nick Begich, was declared missing along with House Majority Leader Hale Boggs, D-La., when their plane disappeared on its way to Juneau. It wasn’t until two months later that Nick Begich was declared deceased — and that was after he had been re-elected.

"Throughout this ordeal, Alaskans were officially without representation in the House of Representatives," Begich noted at a bicameral hearing of the House and Senate Judiciary committees. "But my recollection — and my review of news reports from that era — show no outcry for the appointment of a new congressman. Alaskans then, like Alaskans now, feel strongly that their elected representatives in the federal government should be exactly that — elected."

Special elections will remove the possibility for one corrupted politician to make a decision for millions of constituents and help restore democracy to the Senate. It's an obvious fix, so much so that even one of the appointed Senators, Delaware's Ted Kaufman, responded to the proposal by saying, "I think this is a good idea."

You can join Sen. Feingold as a citizen co-sponsor to what he is terming "the 28th Amendment".

Time To Get Special

Russ Feingold is taking the lead on calling for a Constitutional amendment mandating special elections for vacant Senate seats.

"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. In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this 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. I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute. As the Chairman of the Constitution Subcommittee, I will hold a hearing on this important topic soon."

This is long overdue, and not just because of the Rod Blagojevich/Roland Burris fiasco, though that is an excellent example. The recent selection of Kirsten Gillibrand was not made by Gov. Paterson out of a desire to reflect the needs of his citizens, but for nakedly and admittedly political interests. He wanted to endear himself to women and to voters upstate. So he artifically narrowed his options. And then there's the issue of seat-warming, as we see in Delaware:

Seat-warming in Delaware: The governor of the First State chose Edward E. "Ted" Kaufman to fill the vacancy created by the election of Joseph R. Biden Jr. as vice president. Mr. Kaufman worked for Mr. Biden for 21 years, 19 as chief of staff. When he was selected, there were whispers that Mr. Kaufman would step aside in 2010 to allow Mr. Biden's son, who is Delaware's attorney general and serving in Iraq as a member of the Delaware Army National Guard, to run for the seat. Those whispers became audible talk when Mr. Kaufman announced that he would not seek a full term. While this is not the most egregious example of treating a Senate seat like a family heirloom, it comes close.

It's just undemocratic and wrong. Unfortunately, I'm not sure a Constitutional amendment is going to work. It may get the required 2/3 vote in the Congress, but then it must be ratified by 3/4 of the states. And in that process, governors must submit the amendment to their legislatures for ratification. Which means that a Governor would have to give the legislature the power to cut them out of the appointment process. Purely on grounds of self-interest, I don't see that happening, though it's an open question whether Governors can actually block the process. If they can't, they still wield power among state legislatures, who may not want to open up Senate seats to the rabble.

Everyone's Fingers In The Punchbowl

The situation with Rod Blagojevich is pulling a scab off of the Senate appointment process, with all the various players and all of the backroom deals. Blagojevich may have wanted to sell the seat to the highest bidder, but competing interests had their own views on the pick, including Harry Reid:

Days before Gov. Blagojevich was charged with trying to sell President-elect Barack Obama's U.S. Senate seat to the highest bidder, top Senate Democrat Harry Reid made it clear who he didn’t want in the post: Jesse Jackson, Jr., Danny Davis or Emil Jones.

Rather, Reid called Blagojevich to argue he appoint either state Veterans Affairs chief Tammy Duckworth or Illinois Attorney General Lisa Madigan, sources told the Chicago Sun-Times.

Sources say the Senate majority leader pushed against Jackson and Davis — both democratic congressmen from Illinois — and against Jones — the Illinois Senate president who is the political godfather of President-elect Barack Obama — because he did not believe the three men were electable. He feared losing the seat to a Republican in a future election.

Blagojevich spokesman Lucio Guerrero confirmed that Reid (D-Nev.) and U.S. Sen. Robert Menendez (D-N.J.) — the new chief of the Senate Democratic political operation — each called Blagojevich’s campaign office separately Dec. 3. Sources believe that at least portions of the phone conversations are on tape.

We have an outline of what happens in the event of a Senate vacancy now. Local leaders and electeds call the Governor with their views. Potential candidates call the Governor. The Senate leadership from the particular party and the chief campaign operative calls. If the seat involves the President-elect, someone from their office calls. All of them have their own offers to make, and they clearly go beyond "appreciation."

It's called influence-peddling, and it's the natural outgrowth of an election process where one man or woman casts the deciding vote. The less people there are involved in a decision of this nature, the more potential for corruption. It's just common sense.

Section 2 of the Seventeenth Amendment reads like this:

"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, 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."

The amendment is written specifically to provide for a special election, but allowing for temporary appointments in the interim if the legislature of the state allows it. The legislatures, then, could DISALLOW such an appointment, and move to undertake the special election with all deliberate speed instead of the next November in the two-year cycle. There are potentially ways for the legislature to limit the power of the appointment process (say, providing a list of names from the state party of the former officeholder, as they do in Wyoming), but there's a pretty strong case to made that such limits are unconstitutional, and before long some Governor with their back up will contest that. So the solution here is to either compel state legislatures to disallow temporary appointments, or to write a NEW Constitutional amendment, taking the appointment process away from the Governors, which is fully keeping with the Constitution, as these are seats for federal office.

...as Chris Bowers notes, the fact that Reid didn't want three black candidates to be selected because of electability suggests that he doesn't think Roland Burris is particularly electable either, putting a new spin on the efforts to block the Capitol door and stop the appointment.

One of the major problems here is the corruption associated with the concept of "electability" itself. Not only is it anti-democratic, but in truly retrograde fashion it reinforces oppressive cultural perceptions--such as African-Americans being unelectable, and Democrats needing to turn to veteran's in order to shore up foreign policy credentials--rather than challenging them. To a large extent, the Constitutional method of appointing Senators, rather than holding special elections, is itself to blame. Additionally, the lack of intra-party democracy and top-down elitism of our political process is also to blame. None of these problems would have occurred if we had simply held an election, and engaged in the radical experiment of letting the people decide.

Yep.

Third Term, Anyone?

Dan Walters makes a hell of a lot of sense about the real reason why the Governor is pushing this plan to move up the California primary. He seems to think it has nothing to do with the primary itself, but about the other proposal being tossed about for that February 2008 ballot.

Schwarzenegger could legally seek a third term only if the term limits were to be modified, and lo and behold, he and legislators are talking about doing exactly that. While the public discussion of changing term limits has centered on legislators, there's no particular reason why loosening the limits on constitutional officers couldn't be part of any deal.

I think that Arnold's outsized ego just makes him want to be in the thick of the Presidential race, but this is an absolute side effect. You can bet that if the term limits change for the legislators, they'll similarly change for the constitutional officers, and we won't get the opportunity to pick one but not the other. It'll all get tied up in one big redistricting/term limit ball.

Plus, this would give Republicans in the Congress until 2014 to amend the Constitution to allow foreign-born citizens to ascend to the Oval Office. And I don't see Arnold wanting to be anywhere else but the Governor's mansion or the White House.

Walters ends the piece by calling this idea "possible but not probable," but I think he convinced me that it's actually likely. Are you all ready for 8 more years of math-challenged budgets and more attempts to break up unions and universal health care plans that aren't universal or even health care?

Well, enjoy getting to see part of Barack Obama's head at some rally in late January! That seems like a fair trade-off!