The state of Massachusetts has contributed countless gifts to America, including the labors of innovative scientists, classic authors, and several United States presidents. It is perhaps fitting, then, that the Bay State has now provided us with one of the great history tutorials in recent memory. The lesson in question, currently playing out in Boston, demonstrates that our nation suffered a collective lack of clarity in 1913 when we passed the Seventeenth Amendment.
Having rushed through a bill to strip Mitt Romney of the power to appoint an interim senator when it looked as if John Kerry would be packing his bags for the West Wing in 2004, the same august Massachusetts legislative body has now declared that governors should — indeed must! — have that power once again. (Only the most skeptical among you would be crass enough to point out that a Democrat is now in the governor’s mansion.)
Not satisfied with flipping the process on its head twice in five years, their chief executive, Deval Patrick, has declared it to be of such import that his appointment of former Kennedy aide Paul Kirk to the vacated senate seat must take effect immediately, rather than waiting the normal 90 days for any new law to go into effect.
There are few today who would argue in favor of the Constitution’s original procedure where state legislatures would select senators, safely insulated from the uneducated whims of the unwashed masses. But in the process of returning the power of senatorial selection to the voters, we included a loophole: “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.”
To be sure, persuasive arguments have been made for the wishy-washy option handed to the legislators. Elections are expensive beasts and the prospect of holding several of them in the space of a year or two is daunting. Also, the governor is an elected officer of the voters, so his or her choice could be said to represent the will of the populace.
But the true failing of the Seventeenth Amendment does not arise from concerns of frugality or the legitimacy of the candidate. It is rooted in the flexible nature of a selection process which should be one of the fundamental, bedrock foundations of the democratic process.
Massachusetts, by demonstrating an unabashed, craven willingness to retrofit their electoral procedures to suit the needs of one party, has revealed this system to be a useful tool in partisan warfare never intended by the framers. By now, there are no doubt other states with traditional majorities held by either party casting an envious glance at the shell game they are running in the Bay State. Particularly in an era when legislative majorities can be slim and one vote can spell the difference between success and disaster, the temptation will prove too much for some.
It is worth noting that there is a states’ rights argument to be made here also. Those most opposed to federalism could reflexively bristle at removing any choices or options from the state governments. And in the case of strictly state elections, it’s a valid point. But members of the Senate and the House of Representatives are not being elected to a post which only affects their home turf. They are sent off to a larger club which is distinctly federal in nature. Voters moving from one state to another should be able to expect that the process will be the same no matter where they settle.
Further, the idea of an empty seat in either chamber constituting an “emergency,” as Governor Deval Patrick is currently maintaining, flies in the face of constitutional consistency. House seats remain empty for measurable periods on a regular basis and the union has thus far stubbornly failed to crumble into dust. Were the Seventeenth Amendment to be amended so that vacant senate seats would be temporarily filled at “the next regularly scheduled elections” (which take place every fall across the land) you would never have an empty seat for more than twelve months.
For those who find themselves greatly disconcerted over the math, there is also nothing magical about the number 100 when it comes to Senate votes. When I was born, there were only 96 senators and things seemed to function just fine. Even the Constitution itself doesn’t rely on raw numbers. We assume that you need sixty votes to get anything done in the upper chamber, but that number is a product of proportions rather than a fixed minimum. Even if a dozen seats sat empty following some unimaginable disaster, business could still be conducted.
The Massachusetts legislature has acted boldly, without so much as a wink or a nod to the principles under which voters should always have the first and last word in determining those who would represent them without interference via partisan tampering. By acting in a way which should have rightly embarrassed previous generations of lawmakers, they have exposed a flaw in one of the most basic aspects of our constitutional structure. Rather than flailing our arms and decrying their blatant manipulation of the game’s rules, we should be asking ourselves if it isn’t high time to change those rules and take that particular toy out of the hands of the children.
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