Senators in tiny print
Jan. 3rd, 2009 07:45 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
calimacIn 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.
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.
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Date: 2009-01-05 12:49 am (UTC)