By Dan Kennedy • The press, politics, technology, culture and other passions

Democracy and the Senate

Ted Kennedy, battling brain cancer, strikes exactly the right balance in his letter (pdf) to state officials on how his seat in the U.S. Senate should be filled.

In a story broken by the Boston Globe’s Frank Phillips, Kennedy endorses a 2004 law that took away the governor’s ability to fill a Senate vacancy and gave it to the voters instead. But Kennedy also calls for an amendment allowing the governor to appoint an interim senator who would serve during the five-month period preceding the special election. Finally, Kennedy suggests that the governor appoint someone who promises not to seek election.

The law was changed five years ago when it looked like Sen. John Kerry might be elected president. Legislative leaders wanted to make sure that then-governor Mitt Romney, a Republican, would not have the ability to choose Kerry’s successor. Once and future Romney spokesman Eric Fehrnstrom refers to that on Twitter today:

Wishing Dems now calling for Gov to appt Kennedy replacement stood with Romney in 2004 when they took that power away from him.

(Fun random fact: I ran into Fehrnstrom on the summit of Mt. Monadnock recently.)

But Democrats did the right thing then, even if it was for partisan reasons. As Kennedy suggests, they should leave the law alone, but not let the seat go unfilled for five months.

The wisdom of the 2004 law was proved after President Obama’s election last fall. First, then-Illinois governor Rod Blagojevich disgraced himself and his office by putting Obama’s Senate seat up for sale — an action that led to federal corruption charges against him. The appointment went to the supposedly incorruptible Roland Burris, who turned out to be highly tainted himself.

Then, after Obama named Sen. Hillary Clinton of New York as his secretary of state, Gov. Donald Paterson turned the appointment of a successor into a circus, using anonymous aides to smear Caroline Kennedy, who wanted the job but was clearly unprepared. The post eventually went to an obscure Albany-area congresswoman, Kirsten Gillenbrand.

No one is suggesting that Gov. Deval Patrick would pull a Blago or even a Paterson. But senators should be elected, not appointed, as has been the case since the 17th Amendment took effect in 1913. Kennedy’s proposal honors that proposition while plugging an unnecessary gap.

Photo of Kennedy (cc) by Will White and republished here under a Creative Commons license. Some rights reserved.

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Democracy and the Senate (II)


  1. Stealth

    I think interim appointment with a special election is the right way to go… but why only a promise from the appointee not to run again? The law should explicitly bar the appointee from running again.

  2. Jeff C

    If he had the integrity to propose a change in the law before he was dying, I'd be more sympathetic to his plea.Alas, "integrity" isn't exactly something Senator Chappaquidick has ever demonstrated.

  3. mike_b1

    Having spent two years running up the Hill coordinating lobbying efforts, I can say the enormity of the task makes it impractical to limit a Senator to a five-month interim period. It takes them that long to figure out where their office is. The state and the nation would be better off without a representative than to send someone who has no authority, no accountability and no clue.

  4. Peter Porcupine

    DK – so what's the time frame to trigger this 'temporary' appointment? Five months? Five weeks?When the law was pased, nobody was sick. The five month window was chosen to allow 10 Democrats to hold a primary (since there's no such thing as a Congressman who doesn't believe s/he should be Senator…).ANY gubanernatorial apointment is INTRINSICALLY an interim appointment, as that person must run in the next regular election. As far as a 'promise' not to run goes, does the Clerk of the House still have that resignation letter Marty Meehan filed upon running that he later repudiated?Also – isn't it likely that any appointment will trigger a special election anyway for the Elected Democrat that gets appointed? Unless Deval DOES plan to appoint Caroline…(don't forget – only residency requirement is that they have residence in state on teh day they are sworn in).At the time, I said that they'd regret hamstringing their own guy.No, far better we change the law to a 'when we feel like it' trigger. Otherwise, Gov. Mihos/Baker might be able to appoint somebody before the body gets cold and a vote to switch back again can be taken!

  5. Michael Pahre

    The state legislature was wrong to change the law in 2004 for immediate political purposes; they would be wrong to do so now for the same immediate political purposes. It is truly idiotic for the state legislator to change the rules each and every time something comes up (Kerry's presidential bid; Kennedy's illness). That the legislature hadn't addressed the gap issue points to a level of incompetence or cluelessness in the chamber. Or that the current system is exactly the one they wanted.Major changes like this should be thought through broadly and decided upon through multi-party consensus — and only come into effect after the next election. With major changes (effectively state constitutional changes, even if not explicitly so), the voters should always be given the chance to throw the bums out first, should they consider them bums.That said, there are three options for when to elect the next senator: (1) special election outside of the election cycle [current law: five months later]; (2) special election in the next federal election cycle [i.e., fall 2010]; or (3) wait until the next election cycle [when the seat would go up next, which could be up to six years later].Nobody wants to wait up to six years for #3. Some states do #1; others do #2; take your pick. There are reasons to support both #1 (get an elected replacement quickly) and #2 (more people participate in elections during the regular cycle rather than in special elections).As for an interim senator, you can: (a) leave seat empty [current law]; (b) have the Governor name the replacement [Kennedy's proposal]; (c) have the legislature (e.g., state senate) name the replacement; or (d) have a pre-ordained list of next-in-line officials (e.g., Congressmen in order of their seniority) who get the job (or can turn it down).The problem is that the legislature seems to want to change the rules every time that the governor's seat changes parties. So pick a combination of (b) and (c): Governor names the interim replacement subject to state senate confirmation. Now you don't have to change the law every time the corner office changes parties.Note that the (Republican) Alaskan legislature recently did not confirm the former (Republican) Alaskan governor's appointment for a replacement for state Attorney General (primarily because of his peculiar NRA connections). The requirement of legislature confirmation ensured that the AG replacement was more of a consensus appointment than an extreme or partisan one. The confirmation process works, even if it can be a bit messy.

  6. bob gardner

    It's amusing that noone in 2004 realized that we would be short a senator for the five months before a special election. Was everyone in the state legislature too drunk to count to five?On the other hand it's just sad that Senator Kennedy expects us to change the law now when he had other options to have his seat filled democratically. He could have 1) resigned soon after his diagnosis or 2) resigned late last year and we would have a senator by now. If he resigned in time to have the election combined with the general election we could have had a much more democratic choice, and the state could have saved some money, maybe enough to keep a zoo or some swimming pools open.

  7. lkcape

    I wish Sen. Kennedy health and peace.If he were really concerned about representation of the constituent's interests, he would resign and let the process work.Both he and Kerry have been AWOL for truly extensive periods of time for what are personal in nature, be they health or ambition.This is a blatant attempt at political manipulation.Let the "wisdom" of the law work.

  8. Amused

    Keller weighed in on this today with one of characteristically superficial observations, and this one was comical enougth to share far and wide..The Democrats, claims Keller, need every vote and that's why Kennedy wants to make sure there's no interregnum with no senator. Then after belaboring the obvious, Keller opinies that "a bill passed by one vote isn't worth passing."I do believe he was serious.

  9. bostonmediawatch

    Hmmmmm.WWTDD?What Would Tom Delay Do?

  10. Treg

    Jeff C *actually* wrote this:"If he had the integrity to propose a change in the law before he was dying, I'd be more sympathetic to his plea."Think about it, Jeff C. The only reason this has come up is that he is dying and may not be able to finish his term. Get it?

  11. O'Reilly

    Advocating for an amendment to a law is a right gaurenteed under the Constitution. Calling it a blantant manipulation is a partisan and poorly thought out response.

  12. O-FISH-L

    As a Republican, I pray that the Democrats in the legislature quickly kowtow to Kennedy's request and Governor Patrick (D-Padlocked Pools) signs it into law. I didn't think the electorate could get much angrier, but this might do it. My gut tells me though that the self-preservation instinct will dissuade most Dems from tinkering with this law, again. 2010 was already shaping up to be another 1990, when even the most obscure Republicans were swept into office by a tidal wave of voter anger aimed at Democrat arrogance. I remember in 1990 talking to Robert Hall (R-Needham), an elderly man who had almost forgotten that he was on the ballot for Norfolk County Treasurer, running against an entrenched Democrat incumbent from Quincy, the only city in the county. Hall, now deceased, went to bed early on election night only to be awakened by a startled media with congratulatory phone calls at 2 AM. The only one more surprised than the media was Hall, the Treasurer-elect himself. Look for similar stories next year.Ditto the above comments about Kennedy's sheer hypocrisy. If he had an ounce of integrity or true concern about full time representation in the Senate, he would have called Kerry to task in 2004 for his numerous missed votes, and he would have resigned himself after collapsing at the Inaugural."Behavior which appears superficially correct but is intrinsically corrupt always irritates those who see below the surface." — James Bryant Conant

  13. mike_b1

    The electorate is angry? Really? What's your proof there, Fishy?As for lckape, of course this is political manipulation. That's what politicians do. Especially Republican ones. (If there are any left.) Or don't you remember all the time and resources wasted trying to get President Clinton to admit to a blow job from a more-than-willing companion. And btw, I don't recall your complaints about McCain or Palin being AWOL while running for the White House. Some would say, given their respective mental deficiencies, they are AWOL even when they are sitting in their home districts.

  14. lkcape

    Mr. TP… I believe that anyone running for higher office should resign from their current one at the time they file their papers for the new one. That includes Kennedy and Kerry, Palin and McCain, and even Mitt Romney…..or Martha Coakley or Timothy Cahill, or…shall I go on?Do you wish to say the same?Or are you one who wishes to see the continuation of Massachusetts' current dysfunctional political system?

  15. Peter Porcupine

    Mr. Fish – I do not think Kenendy is a hypocrite. He did not seek the change in law, and was not sick at the time. He could not have foreseen the turn of events.The Legislature is where hypocrites are found. You may not remember this, but the call to change the appointment law (because the vote of the people should be paramount) was contemporaneous with the vote to deny putting the marriage petition on the ballot (because the vote of the people is too arbitrary for an important issue).Since the Lege are the hypocrites, they will follow their nature.And please remember – THESE are the peope who will apportion our representation after Rahm has his ACORN-taken census. Perhaps they can avoid indictment this time.

  16. Beth Wellington

    Here's what puzzles me: a story dateline August 20 talks about a letter sent last week. And yet, the letter is dated July 2?

  17. Al

    … if they changed the law in '04 to prevent Mitt from appointing someone from the Republican party, then it should be left alone–and this is coming from someone (me) who is a hardcore leftist. Incidentally, the appropriate term is "Democratic arrogance," not "Democrat arrogance." Seems as though the McCarthy-esque usage of "Democrat Party" has made a comeback from conservatives/Republicans.

  18. Nial Liszt

    **I do not think Kenendy is a hypocrite. He did not seek the change in law**PP– He most certainly did.

  19. lkcape

    Quiet Aside: Can Barney Frank's district lines look any more ridiculous than they already do?

  20. mike_b1

    lkcape, no I most certainly don't think someone running for another office should resign the one they occupy. That's unconstitutional, not that I'm surprised you wouldn't know that. I watched for years as the aides of Strom Thurmond and Jesse Helms, among others, ran their offices — and controlled their votes — with the senators being so far gone mentally they had no clue what was being done in their name. It may not be ideal, but that's the way the system is set up under the Constitution and I am loathe to change it.I would think a conservative like you would feel the same. Except based on your arguments here, it's hardly clear you understand conservative principles. Then again, I'm not so sure there is such a thing as "conservative principles."

  21. Dan Kennedy

    I don't think Kennedy is seeking a change in the law so much as a tweak. Maybe it's possible to write into the amendment a prohibition on the appointee running for the seat. Either way, a special election would be held five months after the position becomes vacant.

  22. Steve G.

    I agree with Dan's note. Is it better for Massachusetts to be without a Senate vote for five months, or for someone to fill the void?What happened five years ago seems neither here nor there; if you're annoyed enough, write to your reps or show your displeasure with your votes. But I don't think Kennedy's idea is a radical idea, and I definitely favor the idea of preventing the appointee for running from the seat.

  23. lkcape

    Care for a citation for your claim Mr. TP? Did you also intern as a clerk to a Supreme Court Justice?I commented, not on it's legality, but on it's desirability.Saves us all from absent politicians like Kennedy, Kerry, Romney, etc.After all, WE are the ones that are paying THEIR salaries. WE surely have some claim on their time and energies, don't you think?

  24. Treg

    Geez. Every topic turns into a generalized venting forum for whack jobs. Surprised one of them hasn't posted a pic of Kennedy with a Hitler mustache photoshopped in.

  25. LFNeilson

    What was your best grade in school — attendance? If a member of Congress is doing committee work, the only way they can check in on every vote would be to put aside that work and dash over to chambers. I'm not nominating anyone for sainthood, but before you castigate someone for their attendance, find out where they were — golfing, or engaged in some of the many other things a member of Congress is called to do.

  26. lkcape

    Like Kerry and Kennedy and Romney and McCain running for President while "representing" their constituencies? Right!Give us a break!

  27. mike_b1

    lckape, my citation is myself. Thurmond and Helms had checked out. Clue no. 1 came the first time I met Jesse and he insisted we had met. Clue no. 2 was when Thurmond's own LD laughed when one of my constituents asked what he thought on a particular issue. "The Senator doesn't think anymore, sir."And I don't think that the $174,000 a year taxpayers "contribute" means much compared to the millions ponied up by business interests.

  28. Peter Porcupine

    Mr. Lizst – I stand corrected and disappointed. I had thought better of him than that.

  29. Aaron Read

    Dan, after seeing how REAL politicians f**k things up out here in NY, I have to think that unless you make it the law that the interim appointee cannot run him/herself, what'll happen is that Patrick will appoint himself as Senator.His approval ratings are so low that he's a dead duck as a Governor and he knows it. But as a US Senator, even for just five months, he can RAKE in the lobbying money and secure himself a nice fatcat job afterwards.

  30. Mark

    The seat has been virtually vacant for a year now… Kerry's seat was virtually vacant for a year when he ran for president.We can wait five months for a senator.Having an unelected senator voting on the biggest piece of legislation in 50 years is undemocratic.

  31. Nial Liszt

    mikey b — Can we add the name of Sen. Third In Line, from W. Va, to the non compos mentis subcommittee?Also, would you care to donate a few rolls to the comrades? 🙂

  32. Amused

    Let me raise this scenario, and perhaps it has been raised by others.Perhaps Kennedy realizes it is time for him to resign, but doesn't want the state he has represented for 46 years to have half-a-vote in the United States Senate.I'd suggest that may be the case, given that the Senate has been his life's work (and that's hard to deny whether you agree or disagree with his positions on the issues.)On the cynical side of the coin, it appears that Massachusetts has no Democrat who has achieved the status of a Senior Statesman, respected by even those who disagree with him. A natural choice for an interim seat would be Dukakis, but he comes with too much baggage, a lot of it unjustifiable. Who else? Frank Bellotti might be right, but at 87 or so it wouldn't work. Other former constitutional office holders have their own baggage — Shannon O'Brien, L.S. Harshbarger, Tom O'Neil, Evelyn Murphy, Jim Shannon, Bob Crane, Bob Quinn, Ted Buczko, none of them posess anything resembling the kind of widespread respect that would make an interim appointment natural. We have no living former Democratic former senators, the roster of former Democratic Congressmen is no help including as it does Shannon, Chet Atkins and Marty Meehan; no former House Speakers or Senate Presidents who are without an ethical cloud.Here's a scenario: We're losing a Congressional seat. Pick one of the current Members of Congress to go and give him a Senate swan song. Problem is, being called Senator is as addicting as crack and the chances of any one of the delegation gracefully leaving the stage after such an appointment is slim indeed. Could you trust Ed Markey's vow not to seek a full term? Not. A. Chance.No ex-Mayors of any city of consequence come to mind.What about J. Donald Monan S.J, ex-president of B.C.? He's 80-something, but if he could get an arena built in Boston, perhaps he and Olympia Snowe could get a health bill crafted.Derek Bok might make sense too, he's a mere 79, but came in fron the bullpen after Harvard's Larry Summers disaster.It isn't something that we've had to think about in the past, but in both parties we have no senior statesman. Two of the last three Republican governors quit, and the other was a joke. Most of our industrial leaders have been busy selling their companies out of state. Ed Brooke is the last Republican senator and he's both old and out of contact. Former Republcan Congressmen are one or two termers. No Republican in the legislature has achieve any kind of status since Frank Hatch of Wm. Saltonstall.How long would it take Ray Bourque to become a citizen?

  33. Tony

    Keller had a great bit last night on the 11 p.m. news stating that Sen. Kennedy had missed all but four of the last 151 roll call votes in the Senate during the last year. So, essentially, Massachusetts hasn't really been represented in the Senate, with all due respect to Ted [Disclosure: I was Kennedy's college coordinator in 1994, a paid position with the campaign].Admittedly, in 2004, I wrote a column in The Winchester Star stating that I thought the law shouldn't be changed and that Gov. Romney should be allowed to make the appointment to the Senate if Kerry won the presidency []In the closing paragraphs, I wrote:Actually, it is kind of amazing that the Democrats – the people who are always lecturing the rest of us about the hallowed nature of democracy, inclusion, diversity, and other worthy virtues – are doing everything they can to keep millions of residents from having their second voice in the Senate for more than five months. And the fact that they have set up a special election which will pretty much limit the candidates to the all-white, all-male, contributor-connected insiders is even worse.Clearly, in the wake of a presidential victory by Kerry, the citizens of our state should not be without democratic representation just because partisans don't like that a Republican is making the appointment. Romney should be allowed to appoint a successor – it is the best thing for the people of Massachusetts. As we all know, the law was changed. The Beacon Hill insiders and Democrats couldn't look beyond their own noses at what the future might hold. Now, the issue comes up again and the insider crowd wants it to be their way or the highway. It is not healthy for the laws to keep flipping around the way they are sometimes in the same way it is not healthy for the state to not have representation. In hindsight, Kennedy should have stepped down a few years ago and enjoyed his twilight years instead of hanging on – to the detriment of his constituents. As Keller pointed out, the state has lived this long without representation … The law should have never been changed in the first place. That has now been proven. Those of us who said so in 2004 were right. I guess the safe thing to do would be to tweak the law, again, and allow the governor to make the appointment and then set a date for a special election to be held six months from the date of the resignation of the office holder. It would also be good for Gov. Deval Patrick to appoint someone who might not be interested in running in the special election, similar to what Gov. John Lynch in New Hampshire tried to do when it looked like Sen. Judd Gregg would be taking a job in the Obama Administration. This would ensure that the state could have an open, honest, thoughtful primaries and elections with the stakeholders, the voters, deciding what is best for their futures.

  34. mike_b1

    Nial, I've never met Sen. Byrd. The trade group I worked for at the time didn't have any constituents in that state.

  35. Amused

    Once again Keller belabors the superficial and the obvious to the exclusion of any understanding of the understanding of the business of the legislature. Attendance at roll call is not a distinguishing mark for service in a legislative session. If it was, Robert Byrd would be one of the great statesmen of our time.Kennedy's constituent services operation continues to function at a high level and his staff certainly pursues his role and point of view in the health care legislation.Keller's glib commentary should be viewed as entertainment. He is Howie Carr with a mustache.

  36. Treg

    Amused – right on.

  37. Tony

    We'll agree to disagree. "Representation," by definition, is just that, representation. If you aren't there for the votes, if you aren't there for the committee hearings, if you aren't there beyond a spokesperson sending out a press release once and a while, if you just aren't there, no matter what the reason, you aren't "representing" the people. As Keller astutely and correctly pointed out last night, the senator has not been in Washington doing the work he was elected to do. Therefore, he has not been representing the people of Massachusetts. That said, I agree with Kennedy's request, with caveats.

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