Time For A New Replacement Strategy?
Americans are justifiably proud of our relatively stable political system and our ability to more-or-less continuously (there was that Civil War) operate a more-or-less democratic polity for over two centuries. Expansions in civil and political rights have occurred within the system rather than through violent disruptions. Every now and again, however, comes an incident that reminds us that this continuity comes with a cost. We're a modern -- in many ways the modern -- country running atop a creaky and antiquated constitutional system.
Thus, last week all of liberal Washington found itself fervently praying for the good health of Senator Tim Johnson, a man most of us couldn't have cared less about a month ago. Conservative Washington, meanwhile, found itself in the odd position of needing to do what no decent person would ever want to do: hoping to see a sick man grow sicker, or even die.
Obviously, this isn't because liberals are dishonest in our concern or conservatives are bad people. Control of the U.S. Senate teetered in the balance along with Johnson's health. If a senator dies or resigns, his state's governor gets to appoint a replacement. Johnson, a Democrat, is from South Dakota where the governor is a Republican. So if he leaves office, he'll be replaced by a Republican, switching the Senate from 51 Democrats and 49 Republicans to 50 Democrats and 50 Republicans and giving Vice President Dick Cheney the tie-breaking vote. Meanwhile, South Dakota, like most states, makes no provision for an expedient special election to eventually fill the seat with a democratically-elected Senator.
This fundamentally unsound method of replacing senators is merely a legacy of the fact that for the majority of our country's existence, senators weren't elected at all. That, in turn, was part-and-parcel of the founding generation of political leaders' basic hostility to democracy. The same basic hostility that's given us a Senate where senators represent political sub-units rather than citizens. Thus, the 151 million or so Americans living in California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, Georgia, and New Jersey have the exact same number of senators as the fewer than nine million living in New Hampshire, Hawaii, Rhode Island, Montana, Delaware, South Dakota, Alaska, North Dakota, Vermont, and Wyoming. And let's not get started on the electoral college.
Realistically, the fundamentals of our constitutional system are unlikely to change in the near future, but we can tinker around the margins to entrench the most obvious flaws.
Replacement of dead or incapacitated legislators should be high on the list.
The problem in the Senate is the absence of voter input. It would be easy enough to adopt a more House-like system where a vacancy is filled by a special election held on a reasonably expeditious date. Even the House system, however, is not without its flaws. In particular, it fails to take into account the possibility of a mass casualty incident due to terrorism, war, or simply accident that would put a large proportion of the House out of commission.
Under those circumstances, the operations of government would need to continue. Indeed, in case of war or terrorism there would presumably be demand for a response that was both rapid and fairly dramatic. The Congress overseeing the response, however, would not be the nationally representative and democratically legitimate one that was elected. Rather, you'd get an arbitrary sub-set of whichever members happened to have survived more or less unscathed. You could see a dramatic swing in ideological or regional influence and the executive branch would be tempted to simply sweep the rump Congress aside and govern unilaterally.
Even worse, current law places Congress in the order of presidential succession. Were the president and vice president to die simultaneously, the Speaker of the House of Representatives would move into the White House.
That could mean a dramatic change in partisan control. In case of a truly disastrous incident that killed the president and vice president along with many members of the House (an attack on a State of the Union address, say) it would leave the rump House to choose a Speaker who would then become president.
All this could be fixed fairly easily. Special elections should be held for "normal" Senate vacancies and special provision could be made for forming a temporary House or Senate of appointed members in case of a catastrophic attack. Senators and Congressmen could pre-designate successors rather than leaving these things in the hands of governors who may be political rivals. Succession to the presidency should be kept within the circle of people the president has appointed to the cabinet rather than involving congressional officers -- not only the Speaker of the House, but the President Pro Tempore of the Senate, often one of that body's very oldest and most infirm members.
These are the sort of things that would naturally be taken into account were one organizing the machinery of government from scratch in the present day, they're consistent with the basic constitutional system, and they don't play to the long-term advantage of any particular party, region, or ideological group. The odds are against any of these problems arising at any particular time, but it's better to make provision in advance. By the time the general public gets concerned about this sort of thing, it would be far too late.
By Matthew Yglesias
Reprinted with permission from The American Prospect, 5 Broad Street, Boston, MA 02109. All rights reserved