Sustained Outrage

In this July 26, 2004, file photo Sen. Robert Byrd, D-W. Va., holds a copy of the Constitution he keeps in his pocket as he speaks at the launching of his book “Losing America: Confronting a Reckless and Arrogant Presidency,” at a bookstore in New York. AP photo.

Yesterday’s announcement that a special election to fill the late Sen. Robert C. Byrd’s seat won’t be held until 2012 has produced a lot of commentary already — much of it not very, well, thoughtful.

I’m certainly not a Constitutional lawyer, but I thought readers might like a little more background, along with some links to relevant information so they can put all of this in context.

In announcing her views on how this should be handled, Secretary of State Natalie Tennant pointed to Section 3-10 of the West Virginia Code, which says:

Any vacancy occurring in the office of secretary of state, auditor, treasurer, attorney general, commissioner of agriculture, United States senator, judge of the supreme court of appeals or in any office created or made elective to be filled by the voters of the entire state, judge of a circuit court or judge of a family court is filled by the governor of the state by appointment. If the unexpired term of a judge of the supreme court of appeals, a judge of the circuit court or judge of a family court is for less than two years or if the unexpired term of any other office named in this section is for a period of less than two years and six months, the appointment to fill the vacancy is for the unexpired term. If the unexpired term of any office is for a longer period than above specified, the appointment is until a successor to the office has timely filed a certificate of candidacy, has been nominated at the primary election next following such timely filing and has thereafter been elected and qualified to fill the unexpired term.

Tennant also pointed to a 1994 West Virginia Supreme Court decision, involving a Republican challenge to the appointment of current U.S. District Judge Irene Berger to the Kanawha Circuit Court. Importantly, this state court ruling referenced — and at least partly relied on — a 1968 federal appeals court ruling concerning the filling of the Senate vacancy created by the assassination of Sen. Robert F. Kennedy that June.

The underlying legal issue in all of this is the 17th Amendment to the United States Constitution, which created popular election of U.S. Senators, their selection by election or appointment by state legislators. Here’s the text of the amendment:

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such 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.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

The case over Robert Kennedy’s seat is probably pretty important here, as it concerned a somewhat similar set of facts — Kennedy was dead, and the governor and secretary of state of New York sought to fill the seat “temporarily” by appointment. Some New York voters thought that the time period involved — 29 months — was far too long to be considered “temporary” and they filed suit.

The voters lost that case, with the court declaring that 29 months was not too long for an appointed senator to serve, and also finding that “substantial state interests” — such as increased turnout and lessened costs that a regular, rather than special, election would involve — in not holding a special election to fill Kennedy’s seat.

Since 1968, this kind of situation came up again in Pennsylvania in 1991 after Sen. John Heniz’s death, and at least one law review commentator has discussed it at length.  Another law review, published just last year, discussed the conflicting Constitutional issues over the 17th Amendment.

And also last year, Sen. Russ Feingold of Wisconsin proposed to amend the constitution so that it simply says:

No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.

In promoting his amendment, Feingold went through some of the history of the Senate’s debate on consideration of the 17th Amendment, saying among other things:

In the post-Civil War period, state legislatures became increasingly subject to intimidation and bribery in the selection of Senators.  Nine cases of bribery came before the Senate between 1866 and 1906. And between 1891 and 1905, the state legislatures from 20 different states deadlocked 45 times when trying to pick a Senator. At one point, a Senate seat from Delaware remained vacant for four years because of deadlocks.

The political theater occasioned by these Senate appointment fights dwarfs even the extraordinary events we have witnessed in recent months.

Lest the hour of adjournment should come before an election was secured, an attempt was made to stop the clock upon the wall of the assembly chamber. Democrats tried to prevent its being tempered with; and when certain Republicans brought forward a ladder, it was seized and thrown out of the window. A fist-fight followed, in which many were involved. Desks were torn from the floor and a fusillade of books began. The glass of the clock-front was broken, but the pendulum still persisted in swinging until, in the midst of a yelling mob, one member began throwing ink bottles at the clock, and finally succeeded in breaking the pendulum. On a motion to adjourn, arose the wildest disorder. The presiding officers of both houses mounted the speaker’s desk, and, by shouting and waving their arms, tried to quiet the mob. Finally, they succeeded in securing some semblance of order.

Popular sentiment for direct election of Senators slowly grew in response to events like these. Some states held popular referenda on who should be Senator and attempted to require their legislatures to select the winners of those votes. More and more Senators were chosen in such processes, leading to more support in the Senate for a constitutional amendment. Congress finally acted in 1911 and 1912. There was high drama in the Senate as Vice President James Schoolcraft Sherman broke a tie on a crucial substitute amendment offered by Senator Joseph Bristow of Kansas during Senate consideration of the joint resolution. A few days of parliamentary wrangling ensued over whether the Vice President’s tie breaking role in the Senate extends to such situations, and that precedent still stands today. In May 1912, an impasse of almost a year was broken and the House receded to the Senate version of the amendment, allowing it to be sent to the states for ratification. Less than a year later, on April 8, 1913, Connecticut became the 36th state to ratify the amendment, and it became the 17th Amendment to the Constitution.

In that speech, Feingold drew heavily on a major history of the Senate written by … that’s right, Sen. Robert C. Byrd.