By Marc Korman.
In Parts 1 and 2 we reviewed previous Senate appointments and the current efforts to reform the process. Ending uninhibited gubernatorial appointments is a good idea. But it has to be done right. There are two important issues that need to be factored into any change: continuity of representation and continuity of Congress.
Continuity of representation means the ability of a state or district to have a continuous voice in Congress. One of the strengths of the current Senate appointment process is that vacancies in the 45 states allowing appointments are short-lived. So the residents of a state with a vacancy are not at a disadvantage in Congress.
In the case of Senators of course, two individuals represent each voter in each state, so more often than not they will at least have some representation. Contrast that with the House of Representatives, where each voter only has one representative. There are no appointments to fill House seats, only special elections. That can leave extended periods of time with unrepresented Congressional districts. For example, when Bob Menendez was appointed New Jersey’s US Senator in 2006, his House seat was vacant for nine months.
The point is that any vacancy should be as short as possible so that residents are almost always represented in both Houses of Congress without significant disruption. Delegate Ali’s state bill ensures that by allowing temporary appointments until the results of a special election are certified. The federal reform proposals do not address the issue. The downside to temporary appointments is that they could give whoever is appointed a leg up in a special election. If that creates opposition, then perhaps temporary appointees ability to run could be limited, either by a law or an unofficial agreement as is the current case with the Senate appointee from Delaware.
Continuity of Congress is a more esoteric issue and one we will hopefully never have to deal with. The issue is how the legislative branch recovers from a catastrophic terrorist attack, for example if Flight 93, which crashed in Pennsylvania on 9/11, had crashed into the Capitol and created mass vacancies. For a while after 9/11, the issue received a lot of attention. A Congressional task force examined the issue, Congress actually passed legislation calling for expedited House elections, and a joint Brookings Institute/American Enterprise Institute Commission issued a report.
All of the continuity discussions focused on the House because Senate appointments made that body much easier to reestablish after an attack. But as more states pass Special Election laws or a Constitutional amendment is ratified, that ability becomes less certain.
Again, Delegate Ali’s bill addresses that issue by allowing temporary appointments. If temporary appointments are found to be unacceptable in all circumstances, then perhaps they can be used only in the case of mass vacancies, say if a quarter or more of the Senate is vacant.
There are two main objections I have heard to special elections: lack of participation and cost. It is true that special elections have a much lower turnout than regularly scheduled elections, but in the case of a US Senator the race is high profile enough that the problem is somewhat mitigated. As for cost, it is true that democracy is expensive.
It is time to reform the Gubernatorial process for replacing US senators and move to special elections. But as needed reform moves forward, legislators should remember that continuity of representation and continuity of Congress are important issues too.
Wednesday, February 18, 2009
Fixing Senate Vacancies, Part Three
Tuesday, February 17, 2009
Fixing Senate Vacancies, Part Two
By Marc Korman.
In Part 1, we reviewed some historical Senate vacancy appointments, including the recent appointments that have stirred interest in the topic of reform. In Part 2, we will look at state and federal efforts to reform the process.
The 17th Amendment, effective since 1913, says about vacancies:When vacancies happen in the representation of any State in the Senate, the executive authority of each 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.
All but the five states of Alaska, Wisconsin, Oklahoma, Oregon, and Massachusetts allow their Governor to fill a Senate vacancy. Interestingly, Massachusetts allowed appointments until 2004. In that year, the Democratic legislature was concerned that Republican Governor Mitt Romney would appoint a Republican to replace John Kerry if he was elected president. The three states of Arizona, Hawaii, and Wyoming limit their Governor’s appointment power to the same political party as the outgoing senator.
Here in Maryland, Delegate Saqib Ali has introduced House Bill 369. The legislation would require Senate vacancies to be filled by Special Election. But until the Special Election, the Governor could make a temporary appointment. The legislation would not be enacted until 2015, after the current Governor will have an opportunity to serve two full terms.
At the Federal level, Senator Russ Feingold from Wisconsin has introduced a Constitutional amendment requiring elections to fill Senate vacancies. In the House, freshman Congressman Aaron Schock of Illinois has introduced a bill to require special elections, with the cost of conducting one being split between the state and the federal government. Since the 17th amendment specifically authorizes the state legislatures to empower governors to appoint, Congressman Schock’s proposal may not be enough to change the status quo.
So far, there has not been much legislative momentum for any of these proposals. Delegate Ali’s proposal has eleven cosponsors, five from Montgomery County. Senator Feingold and Congressman Schock both have two cosponsors. But there is interest outside of legislative bodies including from editorial boards and individual voters. Fighting for these changes may take years, but they are worth the effort to reform the process and give citizens a voice in electing their Senators. In Part 3, we will discuss some of the safeguards that should be included in the needed reform.
Monday, February 16, 2009
Fixing Senate Vacancies, Part One
By Marc Korman.
The four US Senate vacancies as a result of the election of President Obama have created lots of headlines. As a result, there are federal and state efforts for reforming the process whereby vacancies are filled by gubernatorial appointments. These reforms are necessary, but safeguards should be included as well. In Part 1, we will review some historical and recent Senate vacancy issues. In Part 2, we will examine the proposed reforms at the state and federal level. In Part 3, we will discuss some of the needed safeguards to ensure that Senate vacancy reform is done properly.
Since the 17th amendment established direct election of senators in 1913, 184 individuals have been appointed to the US Senate. Maryland is one of four states to have never had a Senate vacancy filled by appointment since the 17th amendment. Of the185 appointees, 63 did not seek reelection in the next election, excluding Ted Kaufman of Delaware who is not expected to seek election in his own right. 54 other appointees were defeated in their reelection efforts.
Some of these appointments have been monumental. For example, New Mexico appointee Dennis Chavez was the first Hispanic-American to win election in his own right, running as an incumbent. Georgia appointee Rebecca Felton was the first woman to serve in the Senate, though her appointment only lasted one day. Hattie Caraway of Arkansas became the second woman senator by appointment. She was then reelected the following year.
Several well known and impactful Senators also began their legislative careers as appointees, including: Former Vice President and 1984 Democratic nominee Walter Mondale (D-MN); former Senator President Pro Tempore and now disgraced Senator Ted Stevens (R-AK); Senator Arthur Vandenberg (R-MI), known for his 180 degree repositioning on American internationalism after World War II; Senator Harry Byrd (D-VA), a long serving and active segregationist; Senator Sam Ervin (D-NC), who led the Watergate investigation in the Senate; and Senator Howard Metzenbaum (D-OH), a well known progressive and former boss of County Councilman Roger Berliner.
The most recent Senate vacancies have been something of a train wreck. Although the appointees may yet go on to careers of distinction, the messy path that brought them to Washington will linger. In Illinois, the vacancy led to the impeachment of a Governor and days of uncertainty as to whether appointee Roland Burris would be seated. In Delaware, a Biden loyalist has been appointed to hold the seat until the Vice President’s son is prepared to run. In Colorado, appointee Michael Bennet was an official little known outside of Denver who has never run for elective office. Finally, the soap opera of the New York senate vacancy left much to be desired.
These are not the first questionable US Senate appointments. In 2002, Senator Frank Murkowski was elected Alaska’s governor and had the opportunity to fill his own seat. He did so by appointing his daughter, current Senator Lisa Murkowski. That led to outcry in the state and a new statute requiring special elections for US Senate vacancies. When John F. Kennedy moved to the White House in 1961, Kennedy loyalist Benjamin Smith was appointed to JFK’s former Senate seat as a placeholder until younger brother Ted Kennedy was constitutionally old enough to run.
In Part 2, we will look at the state and federal efforts to clean up the Senate appointment process.
Wednesday, April 02, 2008
Special Election to Replace Al Wynn
The Post is reporting that there will be a special election to fill the seat that will be vacated when Rep. Al Wynn steps down in a couple of months.
To save money, there will be only a general election, without a primary. This will require the passage of a law to allow a primariless congressional election - a statute that will have to be introduced and go through the entire legisltive process between now and midnight Monday, when the 2008 session of the General Assembly ends.
Should Donna Edwards win the special election and then subsequent November election, she will have higher seniority next year than other freshmen representatives in the House.
While this is an unusual situation, I think it can serve as a precedent for filling state legislative vacancies. One of the arguments made against midterm elections to fill vacancies in the General Assembly is that the primary would be held early in the election year, while the General Assembly is in session and the appointed replacement (who would presumably be running in the midterm election) would be both too busy to campaign and prohibited by law from fundraising.
While the current situation is not identical, it does create a precedent for bypassing the primary to fill a legislative vacancy.
Wednesday, March 19, 2008
Legislative Vacancies: Annapolis Update
Last Friday, the Senate Education Health and Environmental Affairs Committee held a hearing on a bill to reform how legislative vacancies are filled in the General Assembly.
It got a cool reception.
The current system to fill state legislative vacancies is … well, it has problems. For some background, check out this December 13 post of mine, or this dramatic tale of Adam’s, based on a true story.
Sen. Rich Madaleno is sponsoring a constitutional amendment to reform the system, with the wise counsel of people like our resident blogger and political scientist David Lublin. The proposed amendment wouldn’t overhaul the current system; party central committees would still make legislative replacements. But under the amendment, if the vacancy occurs during the first two years of the four-year term, then the committee-selected replacements would be temporary. Voters would elect a permanent replacement during the midterm election (which, in Maryland, is the same as presidential election years) to serve until the end of the term.
So when Madaleno offered his testimony in support of the bill last Friday, did anyone speak out against it? Nope.
But the committee’s reaction was cool at best. It would seem unlikely that the bill will be going anywhere this session. It may be for the same reasons that Madaleno had predicted back in December. Legislators just don't see this as a problem. The rapid loss of so many Montgomery County state legislators within a year of the 2006 election is not the norm, and many delegates and senators may see it as "just" a Montgomery County problem.
I also suspect that few, if any, constituents or lobbyists talk to delegates and senators about this issue. So the only thing that many legislators would get for supporting this bill would be a group of angry Central Committee members.
Interestingly enough, and previously unbeknownst to me, a similar bill was introduced back in 2003 by Del. Elizabeth Bobo (D - Howard County). It got a committee hearing and was never heard from again. My guess is that we'll see a replay of that fizzle this year.
But that's okay. Even if the amendment were passed tomorrow and approved by the voters in November, the first midterm where it could come into play would not be until 2012. So there is no rush: We’ll get the same result even if the amendment doesn’t pass until 2010.
So Madaleno will have to talk it up among his colleagues in the Senate over the next couple of years. Perhaps he’ll have a House ally in Bobo. Whatever he does, certain bloggers certainly won't be quiet about this issue until it is resolved.
For those of you who keep track of these things, here's a transcript of Madaleno's committee testimony:SB693 is a constitutional amendment that would require vacancies in the General Assembly that occur during the first half of the four-year term to be filled by a special election to coincide with the presidential election. The relevant party central committee would still nominate a replacement to serve until the results of the special election are certified.
Unfortunately, both chambers of our General Assembly have lost members this past year due to a variety of circumstances. We have had three vacancies in the Senate and five in the House of Delegates. The remainder of these terms will be filled by a person who was appointed, not elected. Current law provides that the county central committee of the vacating member’s party to nominate someone to the Governor to fill the remainder of the term. This system has served us well for many years, but the recent spate of reshuffling in our legislature so early after an election has left many of us reviewing this process. Our constituents are troubled by the idea that a person could be appointed to a position so early in a term without any input or say from the majority of the people they represent.
In Montgomery County, the overwhelming majority of those on the parties’ central committees do not live in the district whose Delegate or Senator they are choosing. Although central committee members are elected, most voters are unfamiliar as to what a party central committee does and who the candidates are when they see them on an election ballot. In addition, citizens who are not registered to the same party as the legislator being replaced have no voice at all in electing the body that is making the selection for them.
While these flaws might be acceptable for someone filling a vacancy on a short-term basis - and even that is a debatable proposition - they are not acceptable for selecting a replacement who could serve out the remaining three or even four years of a term, not when there is an opportunity for the voters to cast a ballot in the midterm elections. To deny voters this opportunity is inconsistent with the basic principles of electoral democracy. I urge you to give SB693 a favorable report.
Friday, February 15, 2008
Yet ANOTHER Legislative Vacancy in Annapolis
Hold onto your hat, but it looks like there's yet ANOTHER vacancy in Annapolis.
There are reports that Del. Robert McKee, a Republican from District 2A in Washington County, has very suddenly and unexpectedly announced that he will be resigning. Press reports state that the police seized his computer and found "images that are available on the Internet."
According to the Baltimore Sun:McKee, who was active in numerous youth athletic and civic groups in his district, was one of the legislature's leading advocates on children's issues and had co-sponsored a bill this year that would deny child sexual predators the ability to earn good-time credits on their prison sentences.
He was in Annapolis yesterday but did not attend the morning session at the State House and was also not in his office. He did not return phone calls to his home or office today.
...
The Republican caucus held a meeting this morning, but numerous delegates would not say what they discussed.
House Minority Leader Anthony J. O'Donnell said he had not spoken to McKee and had no knowledge about the investigation other than what he had seen in published reports.
O'Donnell said he found it "troubling" that McKee's house had been searched but urged caution before the details emerge about what he's being investigated for.
"It would be inappropriate to speculate," he said. "I won't do that."
It looks like yet another group of Marylanders will be dealing with what seems to have become Maryland's unofficial pastime: filling legislative vacancies.
Thursday, December 27, 2007
Legislative Vacancies: Amendment Being Drafted
It appears that the serious flaws in Maryland’s system for filling state legislative vacancies (see my December 13 post on the topic) will be discussed during the upcoming session of the General Assembly.
Senator Rich Madaleno has formally requested that legislation be drafted that would amend the Maryland constitution to democratize the process. Specifically, it would mandate a special election during the midterm to allow voters in a district to elect a replacement for the rest of the term.
The cost of a special election should not be high: Since the midterm for state legislators is always a presidential election year, every election board in the state is already putting on an election.
Even if the amendment is passed by the General Assembly in the upcoming session and approved by the voters in November, the first midterm where it could come into play would not be until 2012. So there is no rush: We’ll get the same result even if the amendment doesn’t pass until 2010.
That gives Madaleno and his allies three regular sessions to build support for this reform in Annapolis.
And, according to Madaleno, we may need that time.
That’s because many legislators may see this as “just a Montgomery County problem.” Given our county’s numerous unexpected legislative vacancies within the first year of the four-year term, we clearly see the need for reform. But other parts of the state have not seen such a high level of unexpected turnover so early in the term. Consequently, voters outside of Montgomery County are not demanding change. Madaleno is concerned that many legislators in Annapolis, seeing this as a Montgomery County problem, will have little incentive to change the status quo.
Madaleno sees a parallel with another electoral problem that applies statewide but which is generally categorized (and ignored) as a Montgomery County problem: the constitutional provision for adopting local charter amendments. Enacted in 1916, it establishes the minimum number of signatures needed to get a charter amendment on the ballot: At least 20% of the registered voters in the jurisdiction, but no more than 10,000 people. Back in 1916, Baltimore was the only chartered locality, had a much smaller population than today, and severely limited the right to vote, so the no more than 10,000 provision might have made sense.
But today, there are more chartered localities, and some have much larger voting populations — like Montgomery County. 10,000 signatures would represent a mere 2.5% of the county’s almost 400,000 registered voters.
That’s why Montgomery County frequently has a number of charter amendments on the ballot — amendments that do not necessarily have substantial popular support or probablity of passing.
According to Madaleno, efforts in Annapolis for a constitutional amendment to update the anachronistic 1916 provision have always run into opposition. Why? Because it’s seen as a Montgomery County problem. With its large population, Montgomery County is impacted by the no more than 10,000 people provision far more than most other parts of the state.
Similarly, the constitution’s legislative vacancy provisions may be seen as a Montgomery County problem by much of the General Assembly. And that means it could take time for the issue to get significant attention.
With that in mind, Madaleno sees the drafting of a constitutional amendment as an opportunity to start the discussion with his colleagues.
It will be interesting to see how recent events in District 35A will affect the discussion.
Legislative Vacancies: Harford County
Del. Barry Glassman (District 35A) was recently selected by the Harford County Republican Central Committee to replace Sen. J. Robert Hooper, who announced after the special session that he is stepping down for health reasons. And just last weekend, the Central Committee unanimously selected one of its own members — Howard Wayne Norman — to replace Glassman in the House of Delegates.
Another Central Committee member, Theresa Reilly was also a candidate. According to the Dagger Press blog, neither Norman nor Reilly cast a vote, nor did they participate in the Committee’s interviews of other candidates.
Norman’s selection occurred less than a week ago. Once the holidays are over and the General Assembly is in session, we shall see if there are any repercussions from the Central Committee’s decision to elevate one of its own.
Thursday, December 13, 2007
Legislative Vacancies: Non-Constitutional Reform
There are several measures that can be taken to improve the current vacancy-appointment process while we work for a constitutional amendment. We can’t get a real election without an amendment; we’re stuck with the Central Committee. But the Constitution does not specify how the Central Committee should make its selection. Nothing stops it from adopting internal reforms. The Central Committee is perfectly free to establish a process to determine — and even to bind itself to — the will of the people of the district in question.
I invite comment from my fellow Marylanders on just what these reforms should be. Possibilties include:
- The Central Committee would be bound to select whichever candidate the district party structure selects. (Yes, this means that District 18 would never have enjoyed having Jane Lawton representing us in
- by vote of the precinct chairs and vice-chairs; or
- in a district-wide caucus open to all party members in the district.
- The Central Committee would have a free vote, but Central Committee members:
- would be barred from voting for themselves; or
- would be barred from running altogether
- The Central Committee would have a free vote, but members living in the district whose legislator is being selected would have their votes weighed more heavily
I’m sure there are plenty of other ideas out there, too. The more people talk about this, the better ideas we’ll all come up with.
Legislative Vacancies: Constitutional Reform
The deed is done, the people have spoken, and District 18 has its new delegate.
Well, the people of D-18 haven’t really spoken. It was the Central Committee who picked our delegate.
As I noted in an earlier post, only one year into the four-year term, almost 40% of Montgomery County residents now have as one of our General Assembly delegates someone who we had no role whatsoever in electing. The process for replacing legislators is seriously flawed for a number of reasons:
- The overwhelming majority of those making the selection do not live in the district whose delegate they are choosing;
- Citizens who are not registered to the same party as the legislator being replaced have no voice at all in electing the body that is making the selection for them;
- Even most rank-and-file members of the party in question don’t have a clue what a party central committee does and who the candidates are when we see them on the primary ballot; and
- Although we will be having elections throughout the state in 2008, voters with unelected legislators selected by outside party officials will be denied the opportunity to democratically elect someone to fill out the rest of the term.
This process is inconsistent with the basic principles of electoral democracy.
It is not acceptable.
It must change.
The Maryland Constitution sets out the provisions for filling a legislative vacancy, generally giving the party Central Committee the right to fill a vacancy (or at least to recommend a name to the governor). And the vacancy is filled for the rest of the term. So if we want the voice of the people to be heard through an election, we must amend the Maryland Constitution.
At Sunday’s D-18 candidate forum, several candidates, including Al Carr, expressed support for the right of the people of a district to vote on a permanent replacement legislator during the midterm elections (i.e., presidential election years). I will be strongly lobbying all of my representatives to support a constitutional amendment to make that possible. Based on his statements at the forum, I expect Del. Carr will not need any persuading on this matter.
One potential drawback: Party primaries in presidential election years occur months earlier than they do in General Assembly election years. For instance, while the 2006 primaries were in September, the 2008 primaries are in February. This would spell trouble for a temporarily-appointed legislator seeking election to his appointed position, since he would be in session in the weeks leading up to the primary, with no time to campaign and a legal prohibition against fundraising. It also would mean that a vacancy occurring as early February could not be filled by election in November because the vacancy occurred after the primaries.
For that reason, we could eliminate party primaries for special elections and instead have all interested candidates run regardless of party in one general election, with the possibility of a runoff in case no one gets a majority. Alternatively, we could have a fall primary just in the districts in question.
There may be other problems I have not thought of. As we approach the 2008 session of the General Assembly, now is the time to hash these problems out.
Unfortunately for the people of Districts 16, 18, and 39, even if a constitutional amendment passes during the upcoming legislative session and is approved by the voters in November 2008, that will be too late for us to get our 2008 midterm vote on a candidate. But amending the constitution will protect Marylanders in the future.
My next post will discuss reforms that Central Committees can adopt in the meantime to democratize the process.
