Senator replacement madness - better way to go around it?
Hi!
The senatorial replacement mess in Illinois has probably been noticed by everyone reading this subforum by now, but I must point out that I did not know that the rules were so egg-headed beforehand.
So, the governor - at least in Illinois - can appoint a new senator to replace one who stops serving in the senate. As we have seen, this can lead to perverse incentives.
(As an aside, one may wonder why some replacements are necessary at all. There are Swedish parliament members who also serve on regional parliament, and at least one has done both those things in addition to concurrently serving in town council, in addition to his positions within the party. That guy was unmarried.)
I can not remember reading anything in the constitution which precludes a person serving either in the House or in the administration to run for a Senatorial seat, or to be forced to give up such a position when running for senator. If Joe Biden already has a formal position within the Senate, whose interests would be harmed if Barack Obama held both the presidential and senatorial seat?
However, replacements are the norm in USA. Even if we reason with that as a given, the replacement method - appointment by governor - is bad. Even if a governor is honest, how can he prove it? Some hopeful will be angry when someone else is selected, and there is always something to base accusations upon. For the corrupt covernor a senatorial vacancy is an opportunity, for the noncorrupt one it is a liability.
Appointment by governor has the advantage that is is quick and cheap. A by-election, the standard procedure in many other democracies, costs a great deal, takes time to organize and count, and is liable to ordinary Florida problems.
For countries which use multiseat constituencies, there is a simple solution. In those countries (among them Sweden) parties put up for election ordered party lists, and the number of candidates typically exceeds the number of seats allotted for that constituency by a great deal. If a party then wins X seats out of Y seats in the constituency, then the top X names on that party list are elected. (Sometimes various qouta rules, sucessful personal election campaigns etc. complicate the matter somewhat, but that is how it usually works.) Then, if one of the X elected officials from that party and constituency leaves the elected body for any reason (administration appointment, death, scandal, whatever) the candidate on place #X+1 on the party list takes over that seat. Rinse&repeat for multiple replacements - the party lists are so long so that anything short of a war or a pandemic would not exhaust them.
This solution has the speed and economly of an appointment process, without its added potential for corruption. Too bad that it only works for multiseat constituencies, yet another way in which the election system of USA manifests its manifold and massive drawbacks.
After this lengthy preamble, I suggest an alternative solution which combines the simplicity of appointment with the relative robustness against corruption of election, while at the same time being suited to a single-seat electoral system.
The suggestion goes like this. Divide all outgoing senators into two mutually exclusive classes, those leaving in bad standing and the rest leaving in good standing. To the former belong senators who have felony or multiple misdemeanor convictions, as well as those senators who are currently indicted for anything else than the two first misdemeanor charges. Should a senator be indicted but subsequently acquitted and after that chose to resign, then he will be considered as leaving in good standing. If a senator is merely suspect of anything, but has not yet been indicted, and he chooses to resign before an indictment, then he will be considered as leaving in good standing. The latter is not affected by whatever happens subsequently to his legal case. Senators leaving due to death, ill health, administrative or judicial appointment, or any another reason obviously are considered as leaving in good standing.
Then, the replacement process proceeds differently, depending on the standing of the leaving senator.
If the senator leaving is in good standing, then he is replaced by the runner-up in his party primary, provided that the runner-up is available. If not, the rest of the primary election results are used. Should all candidates who ran in the primary be unavailable (death, felony conviction, loss of citizenship, etc.) then the seat goes unfilled until next ordinary senatorial election for that district.
This rule provides a quick and transparent process for replacing senators in most cases. No one, except the election board, has any motive to be bribed. Bribing them is usually a losing proposition, since it is only seldom that the the bribee can carry out corrupt decisions, and it is usually difficult to predicte when those rare instances will happen in advance. The losing parties have no motivation to murder a senator, since they can not get the seat under any circumstances, even if the murder is not solved.
If the senator leaving is in bad standing, an ordinary by-election is held, with the slight modification that the leaving senator is not permitted to run.
Note that if a senator has done something bad and is about to be found out he has a powerful motive to fess up and resign before the DA gets around to indict him. If he does so, the control of the seat stays within the party. If he drags it out the chances of both him and the party losing the seat are quite high. This should provide for a strong internal check from party members on their errant party-mates, it is decidedly not in their interest to let someone´s stiffheadedness make them the minority party. This should lessen the risk of the spectacle of drawn-out career suicide, such as Larry Craig of Idaho.
So, what say ye? Any drawbacks, other than the fact that there are many other pressing matters at hand clamoring for the attention of the lawmakers?
I can not remember reading anything in the constitution which precludes a person serving either in the House or in the administration to run for a Senatorial seat, or to be forced to give up such a position when running for senator. If Joe Biden already has a formal position within the Senate, whose interests would be harmed if Barack Obama held both the presidential and senatorial seat?
The Constitution forbids Federal executive branch officerholders (which incudes the President) from concurrently serving in the House or Senate. (Art. I, Sec. 6 "...no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office").
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However, replacements are the norm in USA. Even if we reason with that as a given, the replacement method - appointment by governor - is bad. Even if a governor is honest, how can he prove it? Some hopeful will be angry when someone else is selected, and there is always something to base accusations upon. For the corrupt covernor a senatorial vacancy is an opportunity, for the noncorrupt one it is a liability.
Appointment by governor has the advantage that is is quick and cheap. A by-election, the standard procedure in many other democracies, costs a great deal, takes time to organize and count, and is liable to ordinary Florida problems.
The way it is set up (pursuant to the 17th Amendment) is that any time there is a vacancy in a Senate seat -- due to resignation, death, or whatever, the State legislature sets up a special election to elect a replacement to serve out the term. In the meantime, the 17th Amendment authorizes the Legislature to empower the Governor to appoint a temporary Senator who only hold office until the special election is completed. (Illinois' legislature has done this).
The theory is that this way, a State's interest is not impaired by not having a Senator during the time it takes to run the election.
Normally, it works pretty seamlessly--and (IMHO) the effort it would take to amend the constitution seems unlikely to be worth the payoff in preventing the rather unique circumstances occurring in Illinois.
Is that cited as a requirement, or an explanation of how he had that much free time?
The latter - he was stated to have said in an interview that he had chosen to serve his voters and party members by and in politics, and to that end he had chosen to not have any relation as to free up time.
The constitution - being neither a physical or judicial person, has no interests of its own, it is there to (among other things) protect interests of such personal entities which have interests which can be threatened.
The Constitution forbids Federal executive branch officerholders (which incudes the President) from concurrently serving in the House or Senate. (Art. I, Sec. 6 "...no Person holding any Office under the United States, shall be a Member of either House during his Continuance in Office").
Thanks for pointing out the Ineligbility clause, it had completely slipped me. Upon rereading it, I still see no next prohibiting a person holding seats in both chambers of congress concurrently, or holding seats in both state and federal congress concurrently.
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Originally Posted by Philistine
The way it is set up (pursuant to the 17th Amendment) is that any time there is a vacancy in a Senate seat -- due to resignation, death, or whatever, the State legislature sets up a special election to elect a replacement to serve out the term. In the meantime, the 17th Amendment authorizes the Legislature to empower the Governor to appoint a temporary Senator who only hold office until the special election is completed. (Illinois' legislature has done this).
Thanks, I think that I now know the basics on how the rule presently is written. However, what I was coming to was a suggestion for how the rule should be.
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Originally Posted by Philistine
The theory is that this way, a State's interest is not impaired by not having a Senator during the time it takes to run the election.
Quite so, but under my suggested new rule the State´s interest would also be served by having a senator. So, the current system is not better in that regard.
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Originally Posted by Philistine
Normally, it works pretty seamlessly--and (IMHO) the effort it would take to amend the constitution seems unlikely to be worth the payoff in preventing the rather unique circumstances occurring in Illinois.
--Philistine
You and I seem to have different opinions on what constitutes a good enough constitutional rule. You, If I have understood it right, (correct me otherwise) seem to be of the opinion that a rule which works in the majority of cases and only will break down under special, but thinkable, cases is good enough. I, OTOH, set the bar for minimum acceptable congressional rule quality as something which can not produce a situation in which there is no clear course of action to follow unless several truly incredible and unrelated happenstances come around, all at the same time. Should such an exhaustion of rule algorithm be exposed by those happenstances, the rule should always be modified to cover those cases. If it is possible for anyone with an IQ under 160 to envision a phyically possible way to legally beat the system - get a result that the constitutional framers had not wanted - then the constitution is not written well enough, IMO.
The constitution - being neither a physical or judicial person, has no interests of its own, it is there to (among other things) protect interests of such personal entities which have interests which can be threatened.
The constitution - being just a thin piece of paper, has no protective powers of its own. It's not fire-resistant nor could it stop a knife, much less a bullet. Also, I doubt a mugger would even think twice if you wadded it up and threw it at him.
On the other hand, the Constitution outlines our system of separation of powers. Apparently you've not heard of this, so let me explain it to you. See, here in the U.S. we have 3 branches of government. In the Senate they make laws. The President is in the executive branch, he does not make laws. Having one person being the President and also in the Senate would violate this principle, which is set up to protect the citizens of the United States. I can understand that this does not matter to you since you are in Sweden, which is a Constitutional Monarchy, and so I'm sure the notion of having a king might seem like a good idea to you.
Have a swell time!
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__________________ . "I don't mind being the smartest man in the world. I just wish it wasn't this one." - Ozymandias .
{snip}
Quite so, but under my suggested new rule the State´s interest would also be served by having a senator. {snip}
Actaully it wouldn't. IIRC, Delaware's democratic primary for senator this year was uncontested--so under your system, Biden's seat would go unfilled until a special election. Uncontested primaries aren't particularly uncommon--especially in the situation of a sitting Senator popular enough to be elected President.
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You and I seem to have different opinions on what constitutes a good enough constitutional rule. You, If I have understood it right, (correct me otherwise) seem to be of the opinion that a rule which works in the majority of cases and only will break down under special, but thinkable, cases is good enough.
Pretty much. I think it is fairly easy to come up with situations where most rules would result in something suboptimal--especially where you can posit thing like a sitting governor actually putting a seat up for sale.
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I, OTOH, set the bar for minimum acceptable congressional rule quality as something which can not produce a situation in which there is no clear course of action to follow unless several truly incredible and unrelated happenstances come around, all at the same time.
Well... it seems to me that having the sitting governor be caught on tape and arrested for attempting to sell a senate seat in the situation where the sitting senator has a short time left on his term and leaves to become President, is just such an incredible happenstance.
I think there are two issues here.
One is a fundamental difference of opinion on Constitutional drafting--it seems the recent trend in Constitutional drafting (particularly in Europe) is to draft the Constitution almost like a body of statutes--trying to eliminate all vagueness and generally running to dozens, if not hundreds of pages in length.
Conversely, the US Constitution sets in place a fairly loose system, and puts its trust in checks and balances between different constituencies (whether it is the different branches of government or the states and federal government) to cover ambiguities and smooth out the rough edges.
IMHO, both have their plusses and minuses.
The second issue, is that to make the kind of change you're discussing would require a Constitutional amendment. Given the time, effort and political capital necessary to pass a Constitutional amendment, there are literally dozens of Constitutional amendments that would (IMHO) be more useful.
The entire "problem" in Illinois is not really a structural problem--but rather a failure of resolve by the Illinois legislature.
Prior to the appointment, the legislature could have done two things to prevent the current situation. They could have stripped the Governor of his power to appoint a successor and/or they could have scheduled a quick special election to fill the seat.
They can still do the second, but AIUI, the fact that there are only two years remaining in the term and the cost/timing as well as political issues are holding them back. I'd suggest this isn't a problem with the Constitution, but rather with the Illinois legislature.
I would go a little farther than Philistine and say that in the overwhelming majority of senate primaries for an incumbent senator there is effectively no other candidate. I say "effectively" because anybody can run, and sometimes "anybody" does run, but the kinds of people who are on the bottom side of a 98%-2% stomping are usually not the kinds of people that you would want to send to Washington. I would think that there would need to be some minimum to "count"--say 5% or 10%.
Problems occasionally happen with the appointment system, but they aren't frequent enough to create any sentiment that the system need to change. Where the problems do happen, the context is usually long-standing, well-known corruption. Where voters continue to allow corruption, I'm not sure that losing representation in the Senate for a few weeks is a bad price.
__________________ --Be merciful to those who doubt. Jude 22.
I don't think the 17th Amendment broke down. Gov. Blagojevich was arrested, but not indicted. The federal prosecutor claims to have evidence, but he has not presented it in court. Neither has the IL legislature voted for impeachment. For all practical and legal purposes, Rod is still the legal governor of Illinois. His enemies would like him to resign and make all this easier on them, but he has smartly refused.
Also, since the federal prosecutor has refused to give the IL legislature unfettered access to his evidence against the governor, there is no guarantee Rod will be impeached any time soon.
I don't like Gov. Blagojevich, but he does have some chuzpah. After all, this guy used to be a bookie for the mob... he ain't scared of an old man from Nevada.
The constitution - being just a thin piece of paper, has no protective powers of its own. It's not fire-resistant nor could it stop a knife, much less a bullet. Also, I doubt a mugger would even think twice if you wadded it up and threw it at him.
Thanks for making my point, you are in essence restating the first part of my post.
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Originally Posted by OROD
On the other hand, the Constitution outlines our system of separation of powers. Apparently you've not heard of this, so let me explain it to you.
Actually I have, part of my English lessons in 4th grade was to read the entire US. constitution and have it explained to me, with the teacher making sure that I had got the gist of it. I have to thank the taxpayers of this particular European country for its public education system.
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Originally Posted by OROD
See, here in the U.S. we have 3 branches of government. In the Senate they make laws. The President is in the executive branch, he does not make laws.
Well, his signature is necessary to make the law come into effect.
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Originally Posted by OROD
Having one person being the President and also in the Senate would violate this principle, which is set up to protect the citizens of the United States.
I know full well what separation of powers is, it just does not strike me as particularily dangerous if one person were both senator and president, provided that he has won both elections fair and square. If someone is well liked by the voters, why should they not have the opportunity to vote him in all over the place?
But OK, that specific limitation is not in an of itself something that is a big drawback. Upon rereading, you will notice that I mentioned it in the threadstart in the context of an aside.
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Originally Posted by OROD
I can understand that this does not matter to you since you are in Sweden, which is a Constitutional Monarchy, and so I'm sure the notion of having a king might seem like a good idea to you.
Have a swell time!
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1. Constitutional issues are something that matter to me, as any reasonable person would notice upon looking through the number of threads concerning such matters that I have started.
2. The Swedish King is such a weak example in an argument for separation of powers so that one wonders what exactly compelled the putting forward that argument to not find any better one. Heck, the Swedish King has much less proportion of the total political power in Sweden than the corresponding proportion of power wielded by any US. Senator! (As a further aside) That has been the case since the early 1900eds, and the last time that any Swedish King miswielded his power to any real lasting degree was in the first decade of the 19th century.
3. If one were to compare to a King with real kingly powers to a posited president with an additional senatorial seat, one will notice that the former has much more power than the latter. Put otherwise, if someone would get both seats they still would have less power than the one you seem to fear.
4. If you really want to berate me for any percieved gaps in knowledge on the US constitution, then your position would be stronger if you could show yourself to know more about the Swedish constitution than me. I am still waiting.
Thanks for making my point, you are in essence restating the first part of my post.
And your point was what exactly? That the constitution is not a person, legal or otherwise? Well thank you very much, I wasnt aware of that. And since you apparently didnt understand my point, let me restate it. The Constitution, while not a person, can be said to have certain interests, figuratively speaking. One of those interests is the preservation of the separation of powers that it outlines. Having a president that is also in either the legislative or judicial branch goes contrary to that. Secondly, you either didnt get my sarcasm or are just being obtuse.
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Originally Posted by PeterGustafsson
Actually I have, part of my English lessons in 4th grade was to read the entire US. constitution and have it explained to me, with the teacher making sure that I had got the gist of it. I have to thank the taxpayers of this particular European country for its public education system.
In that case you are already ahead of most U.S. high school graduates.
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Originally Posted by PeterGustafsson
Well, his signature is necessary to make the law come into effect.
Not true. The President can veto a bill, but Congress can then override the veto and still pass the law.
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Originally Posted by PeterGustafsson
I know full well what separation of powers is
I dont think you do.
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Originally Posted by PeterGustafsson
it just does not strike me as particularily dangerous if one person were both senator and president...
I got that from your previous post. The writers of the U.S. Constitution, however didnt agree with you.
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Originally Posted by PeterGustafsson
...
I didnt really claim any special knowledge about the Swedish King or it's constitution, although I do know that he is not the real power in the country. Again, you either missed my point or are being obtuse here as well.
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__________________ . "I don't mind being the smartest man in the world. I just wish it wasn't this one." - Ozymandias .
The problem with game theory is that it usually assumes rational participants.
Not entirely the case here; I - when I come up with these ideas - try to figure out something that is as robust as possible against irrationality. If people are totally hopping mad all of the time then no system can work, but I try to figure out something that will work as well as possible when one has people who are only sometimes irrational, never delusional, and at least want to project an image of being rational.
I know full well what separation of powers is, it just does not strike me as particularily dangerous if one person were both senator and president, provided that he has won both elections fair and square.
What happens when two people do this? Then four? Then three quarters of the legislature is also in the executive branch, and has unbalanced power?
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Originally Posted by PeterGustafsson
If someone is well liked by the voters, why should they not have the opportunity to vote him in all over the place?
Why should they not have the opportunity to vote him king?
A good deal of what the constitution does is protect voters from themselves.
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