Replacing Senators

Last week, Senator Ted Kennedy asked Massachusetts lawmakers to change the law governing U.S. Senate vacancies from that state. Currently, Massachusetts law provides that Senate vacancies can be filled only by special election, to be held no earlier than 145 days and no later than 160 days after the vacancy occurs. Kennedy, who is in poor health, is concerned that his death would therefore leave Massachusetts with only one Senator for at least five months -- and those months could contain crucial votes on health care reform, which is one of Kennedy's lifelong passions. So he suggests that the Massachusetts legislature change the law to permit the Governor to fill the vacancy until the special election can occur.

Today the New York Times weighs in against Kennedy's proposal. The Times observes that Senate seats should be filled democratically, not through patronage. Too many Senators, the Times correctly points out, are currently appointed, not elected, because of the departure of many Senators for administration posts (starting, of course, with the President and Vice President). The Times supports altering the Constitution to require that all Senate vacancies be filled by election rather than by appointment (currently, the Seventeenth Amendment leaves this choice up to each state) and opposes Kennedy's proposal.

The Times is wrong and Kennedy is right. The problem with the plethora of current appointed Senators is not the appointments per se, but the fact that so many of them were appointed to fill out the full remaining terms of the Senators who left. Because numerous Senators left for administration posts almost immediately after the 2008 election, their appointed replacements will serve for nearly two years before the voters get their say. That is bad. But it would also be bad to have Senate vacancies persist for months.

Senator Kennedy's proposal is not that the Massachusetts Governor be empowered to fill his seat until the 2010 elections, but only for the interim period -- 160 days at most -- before a special election could be held in accordance with state law. This reasonable compromise would assure the voters of a swift opportunity to choose their next Senator while also ensuring that they have a full complement of representation in the interim period.

The Times complains that the proposal would give the appointed replacement an unfair leg up in the special election. That's probably somewhat true, although the advantage of being a five-month incumbent wouldn't be as large as the advantage of a nearly two-year incumbency that many current appointed Senators will have. This small advantage seems a reasonable price to pay for the benefit of having proper Senate representation. (Kennedy suggests the Governor should appoint someone who promises not to run in the special election to avoid this problem.)

The Times also complains that Massachusetts created its special election law to prevent former Republican Governor Mitt Romney from having the power to replace John Kerry if he had won the presidency and that it would be unseemly to switch back now just because the current Governor, Deval Patrick, is a Democrat. Hey, that's just politics. Sometimes you to do the right thing for a crass reason.