Senators in tiny print

[calimac]

In the library for another purpose yesterday, I remembered to look up information on a question I posed a few days ago: Why did the U.S. Senate in 1913 twice reject the same governor's appointments to a vacant Senate seat, the only time they've done so since the 17th Amendment was passed a few months earlier?

I found the answer in a committee report printed on four large pages of eye-wateringly tiny type in the Congressional Record for January 21, 1914 (v. 51, p. 2010-13). Its applicability to the Blagojevich/Burris case is limited at best, as the fact that the 17th Amendment had just passed is the heart of the issue.

Under the original Constitution, when legislatures elected Senators, governors had the explicit right to appoint temporary Senators when the legislature was not in session - which could be most of the time. When popular election was instituted with the Amendment in April 1913, elections could be held at any time, so governors were now only allowed to make appointments if so empowered by the legislature.

The final clause of the Amendment stated that Senators chosen under the old legislative system were to be allowed to serve out their terms in peace; the cancellation of the rules under which they'd been elected was not retroactive.

When Alabama's Senator Johnston died in August 1913, Alabama had not (yet) authorized its governor to make such appointments. But Governor O'Neal held that, since Johnston had been elected under the old rules to serve from 1909-1915, the final clause meant that the old rules should still operate for appointing a replacement.

The Senate said no. The final clause applied to the right of an existing Senator to hold his seat, not to others filling out the term. If O'Neal's theory applied, then the permanent successor for the rest of the term would have to be elected by the legislature, not by the voters. But this is absurd, and clearly contrary to the spirit of the Amendment. So no gubernatorial appointments unless the legislature authorizes it.

The limited relevance to the Illinois case is that it suggests that the best move of the legislature to prevent Blagojevich making an appointment would be not to impeach him, which takes time, but to have stripped him of the authority to do so. Could it still do so now? Would this rob Burris of his right to a seat? That's another question.

Comments

[jpmassar.livejournal.com]

From the Illinois statutes

Sec. 25‑8. When a vacancy shall occur in the office of United States Senator from this state, the Governor shall make temporary appointment to fill such vacancy until the next election of representatives in Congress, at which time such vacancy shall be filled by election, and the senator so elected shall take office as soon thereafter as he shall receive his certificate of election.

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The Illinois legislature could strip him of the authority to make these appointments, but the appointment he made (not his authority) is still 'until the next election of representatives'.

I don't see how someone can be 'unappointed' by removing the authority
to appoint.

What they could perhaps do is pass a law that specifically said that
the appointment itself would only be until a special election was held.
I'll bet that would be upheld if contested.

[kalimac.livejournal.com]

If Burris had already been seated when the legislature takes the rights of appointment away, I can see how "unappointment" would not be allowed. But if his certificate were tabled or held up in committee first, and could no longer have been issued by the time it's actually considered, I can see the argument being made that the certificate is now void. The counter-argument would also certainly be made, but I am less certain of which would prevail.

In the 19th century, appointments and even elections of doubtful validity were sometimes tabled until they had become moot by the expiration of the term or a more legitimate follow-up, or even by the candidate giving up and going away (which is also what happened to the first of the two Alabama appointees in 1913). The situation is not quite parallel - and I doubt Burris would give up; he's going to hang around outside the Senate chamber like an angry bird of ill-omen - but has some relevance.

[jpmassar.livejournal.com]

Note that there is no mention of a certificate of election as it
pertains to an appointment in the Illinois law just cited, nor
is there a mention of such a beast in the US Constitution (it says
that the Governor issues a 'writ of election', 17th amendment).

The Senate may have such a rule (about a CoE being issued by a SoS) but I cannot see how it could stand up to court challenge.

(But that's why I'm not a lawyer...)

[kalimac.livejournal.com]

I'm not talking about the certificate as a legal document in its own right, still less about the Secretary of State refusing to notarize it. (The "right being taken away" would be the legislature repealing the appointment section of the state code.) I'm using the certificate purely as a metonym for the fact of appointment. It's the document that gives formal evidence that the appointment has in fact occurred. Elected senators get certificates of election.