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Continuity of government

Submitted by Simon on Wed, 01/28/2009 - 9:53am

Senator Feingold is proposing a Constitutional amendment that would eliminate state legislatures' authority to empower Governors to make temporary appointments to the U.S. Senate. One realizes that in every Congress, dozens of amendments are introduced as a matter of course before suffocating in committee, and regular readers may recall that I have a highly skeptical view of the circumstances in which amending the Constitution. By any measure, however, this hasty and harebrained move is outstandingly reprehensible. Not only is it unnecessary (nothing in the Seventeenth Amendment requires state legislatures to permit gubernatorial appointments, so, if we really want to do away with them, we can do so without amending the Constitution), not only is there no good reason to do this (that a Democratic governor embarassed the party fails dismally in the mustard-cutting stakes), but there is at least one very good reason not to do it.

Think of the issue through the lens of continuity of government, an issue debated ad nauseum after 9/11. What happens in a crisis where a significant fraction of Congress has been wiped out? Consider, for example, the Tom Clancy scenario where a plane is flown into the Hall of the House during the President's state of the union speech. What happens next? Congress as a legislative body drops out of the equation, because the House, unlike the Senate, lacks any kind of survival mechanism. Whereas vacant seats in the Senate can generally be filled by gubernatorial appointments, allowing it to get back on its feet fairly quickly, there is no comparable process by which the House could be reconstituted, because vacant House seats can only be filled by special election. In the chaos following the sort of attack that wipes out Congress, such an election could take months, leaving us with no functioning legislature in the meantime.

That's a horrible result, particularly for those (supposedly including Feingold) who are skeptical of unchecked executive power. It would be absurd to suggest that the nation hold its breath and wait for Congress to get back on the rails; in such a scenario, the President would not - frankly, could not - wait months for Congress to provide a statutory response. The President would act as necessary, and to the extent that she could not do so within the system, she would do so outside of the system. That is obviously suboptimal: systemic norms then become irrelevant and lose their power to constrain. While extraordinary times always engender extraordinary measures, an optimal system has processes built in that minimize the extent to which a crisis forces us out of its normal operation.

Feingold would make a bad situation worse. In the event of the kind of catastrophic attack that we're contemplating, it seems likely that much of the cabinet may have been wiped out, also. Because of the Senate's appointive survival mechanism, however, it would be quickly reconstituted, and this has obvious value. Even without a House to allow the passage of legislation, the survival of the Senate would allow something close to normal (albeit, given the circumstances, one supposes highly deferential) evaluation of the President's replacement appointees, as opposed to the President simply appointing whoever seemed appropriate, and at least some legislative oversight of the executive's response. Feingold's dimwitted and shortsighted proposal destroys the flexibility that makes this scenario possible. If it passes, Senator Feingold's legacy will be that in the event of a catastrophe, our nation's future will be 100% in the hands of whichever man or woman is the senior surviving member of the Presidential line of succession. Paging Lord Acton.

The temporary appointment power was not designed with such eventualities in mind, but as with the electoral college, it has a value that transcends the purpose for which it was invented. It operates as a safety valve, and anyone who is seriously concerned with executive power would recognize it as paramount. I cannot understand how Feingold, who styles himself a critic (indeed, scold) of the robust executive, who thought that the Patriot Act was a bad result of crisis, could put petty vengeance for embarrassing the party over the survival of the Republic.

Post facto:
Feingold's amendment: the worst kind of pig-ignorant populist nonsense (8/20/09)

Me either.

I cannot understand how Feingold, who styles himself a critic (indeed, scold) of the robust executive, who thought that the Patriot Act was a bad result of crisis, could put petty vengeance for embarrassing the party over the survival of the Republic.

Feingold's a smart guy, so I'm surprised that he would miss the mark so cleanly on this. The only thing that I can think of is that he has allowed himself to lose sight of of the clear recklessness of such a move. This isn't just "lustily eyeing the branch (to borrow your phrase)," and cutting it of without regard to the consequences. This is just panicking at a one-time result (stupid behavior by governors), and cutting wildly, without even looking.

Shame on you, Russ. You should know better.

Shameless...

One would think that Russ might have better issues to fight about considering Obama's push for the military to "help" NASA. Perhaps, Russ might connect the dots.

" (2) Negation. Active and offensive measures to deceive, disrupt, deny,
degrade, or destroy an adversary’s space capabilities. Negation includes actions against
ground, data link, user, and/or space segment(s) of an adversary’s space systems and
services, or any other space system or service used by an adversary that is hostile to US
national interests."

This stuff above, as Simon points out is silly.

what a waste of time and energy

What a waste of time and energy. The only explanation for Feingold's stand is that he has found a great issue for grandstanding. Letting governors keep making such appointments has no group of core supporters outside of pols themselves, after all.

And while I don't always buy the "congress has bigger fish to fry" argument, I think it's fair to say that this issue is one of very little import compared to other more pressing issues. Obama and Clinton have been replaced in the Senate, there was some sturm and drang, and the republic has endured. In the final analysis, don't these appointments deserve a hearty "whatever?"

It's up to each state to decide how to appoint replacements. IF a given state's methodology is flawed, it's up to the given state to fix it. If one has a hair acrost one's rectum about it, instead of making it fed biz, why not get together a group to come up with a good way for each state to appoint replacements democratically but without great extra expense and effort, and then lobby the states to all make such a change? That preserves state prerogative.

If there is any argument in favor of a federal solution, it's the ample proof of state-level inertia on the matter. The people in power in each state have no real motive to cede the power to choose a replacement to the people, where it arguably belongs in a representative democracy. And that's a shame. But it's really not that much of a shame. On the infrequent occasions when senators bail, governors appoint replacements, and life goes on. So again, whatever.

Don't forget the cost.

The economic dynamic is of a much larger concern. In a short search, I surprisingly had some difficulty in tracking down firm cost numbers. However, there has to be a huge difference in the actual cost to government of holding a special election in a single house district versus holding them for a statewide seat such as a Senate seat. Especially with the cost of meeting the continuing wave of unfunded mandates to change the election systems themselves. I suspect the economic argument, especially in this budget conscious time, will be the ultimate downfall of this idea.

Plus, an actual amendment that is not widely supported is about impossible in this day and age. I have trouble seeing state legislators going for this.

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