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States Should Amend the Process for Filling Senate Vacancies

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By Ruth Marcus
Wednesday, December 17, 2008

Caroline Kennedy -- or Caroline Kennedy's political consultant -- might like to read some of my e-mail. Usually, I know when I'm about to step on a hornet's nest of unhappy readers. Last week, when I described my head vs. heart ambivalence about Kennedy's interest in the New York Senate seat, I plunged heedlessly into danger. And, boy, did I get some stinging comments, some expressed with, shall we say, Blagojevichian pungency.

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Caroline, brace yourself. "Much like you writing for the Post, Caroline Kennedy is not qualified," one reader wrote in one of the more family-friendly responses.

Well, once more unto the breach.

The relevance of my readers' reaction to Kennedy's newborn political aspirations involves the deep hostility expressed toward political dynasties in general and to Kennedy's failure to pay political dues in particular. "Caroline Kennedy might make a terrific senator . . . but she hasn't earned it," wrote one reader.

On this issue, the Kennedy-haters teamed up with the Clinton-haters and the Bush-haters for a veritable festival of dynastic fatigue. "Did you learn nothing from the last eight years?" one reader asked. Wrote another, "We're not living in Hohenzollern Prussia here!"

One recurring theme was that Kennedy, unlike other celebrities who leapfrog their way into political office, would not have to run for the job. "You mention Sonny Bono, Arnold Schwarzenegger and Jesse Ventura and imply [that] if they can be in elected office, why not Caroline?" said one typical comment. "It is simple: They won elections." And, "Caroline Kennedy can earn her Senate seat like anyone else."

Except that she can't, not right now, anyway. The fault lies not in Kennedy's interest in the seat but in the antiquated and undemocratic mechanism that New York, like most states, has adopted for dealing with Senate vacancies.

The tradition of having governors make such appointments is a relic of an era, before the ratification of the 17th Amendment in 1913, when senators were chosen by state legislatures rather than directly by voters. The idea, as the Congressional Research Service explained in a 2003 report, was "to ensure continuity . . . during the lengthy intervals between state legislative sessions."

In other words, the original rationale for gubernatorial appointments no longer applies. It's time for state legislatures to reconsider such arrangements. In addition to the Kennedy kerfuffle and the bigger mess in Illinois, giving governors sole power to make appointments to vacant Senate seats distorts political decision-making; senators from a political party other than the governor's party are locked into their jobs for fear of affecting the Senate balance of power. Would President-elect Barack Obama have chosen Colorado Sen. Ken Salazar to be his interior secretary if Colorado had a Republican governor?

Amazingly, according to the National Conference of State Legislatures, 34 states provide for pure governor-knows-best appointments. Five others give governors the power with a twist: California and New Jersey offer governors leeway to call special elections, while Hawaii, Utah and Wyoming require that the replacement be of the same political party as the departing senator. These are improvements, but they don't go far enough.

It would be an error for states to go too far in the opposite direction, requiring special elections in all circumstances. The best solution, versions of which are in place in about a dozen states, is a hybrid approach under which a special election is required unless the vacancy occurs close enough to the time for a regular election that it makes no sense to go through the expense and hassle. In that case, the governor makes the appointment to cover the interim period.

I would make a few tweaks. One is the Ornstein Exception, after the American Enterprise Institute's Norman Ornstein, who worries about government in the aftermath of a catastrophic attack. In the horrendous situation of numerous Senate vacancies, let the governors choose replacements until the next general election. I'd add the Marcus Caveat: If a temporary appointment is needed, have the governor select someone (1) who is of the incumbent's political party and (2) who pledges not to run in the next election. That way, the balance of Senate power would not change, and no one would get an undue leg up for the job.

None of this, of course, helps Kennedy -- except that, if my mail is any indication of the blowback she's about to receive, she ought to simultaneously urge the governor and legislature to make this fix.

In the meantime, I have to confess, my heart remains with a Senator Caroline.

marcusr@washpost.com


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