The future of legislative appointments (Updated)

The pathology that is Rod Blagojevich to one side, we are going through a rare period in which federal legislative appointments (i.e., gubernatorial appointments to fill vacant seats in Congress) are in the public eye. Four seats (NY, Illinois, Delaware, and Colorado) have become vacant simultaneously, something that I would guess never has happened since passage of the Seventeenth Amendment (does anyone know for sure?). And to call the current time a circus does not capture the insanity.

The events in Illinois have been well-documented. In New York, we have one potential candidate actively campaigning for the job, with her strongest apparent qualification being her last name. Meanwhile, we have the governor tossing around the idea of seeking out a "caretaker" or "placeholder" appointee (names being tossed around include Bill Clinton and Mario Cuomo)--someone who will accept the appointment on a promise or understanding that he will not run for the position (thus reaping the benefits of incumbency or name recognition) in the special election. In Delaware, the first idea floated was to appoint the son of the current seat holder. And in Colorado, it appears the governor is going to surprise everyone by appointing an unknown local official--the superintendent of Denver schools, who purportedly has earned high marks for his work with the Denver school system, but who otherwise lacks name recognition, experience running for office or raising money, and legislative experience.

The reportage on these appointments reflects a media (and perhaps popular?) discomfort with the idea of appointed legislators, a sense that appointments are undemocratic and thus somehow inappropriate, demanding strict limits on who can be appointed and how the appointment can be made. Sandy Levinson pointed to one example.

I find this attitude towards appointments unfortunate for two reasons.

First, it ignores that the alternative is no (or unequal) representation for some portion of the public for the period of time it takes to organize and hold an election--anywhere from three months to two years. Since it is hard to imagine a large state (such as New York or Illinois) being able to hold a statewide election in less than three months, eliminating appointments means the People of that state are deprived of their constitutionally guaranteed equal representation in the Senate during that time. Which is less democratic--an appointed representative or no representation at all? I would suggest the latter. And if appointments are the more democratic approach, doesn't it make the most sense to give the governor full reign to select the best available person? And that should include someone who might be willing and able to seek election and continue to serve in the seat. Because while a placeholder appointee will be unable to use the advantages of incumbency in the subsequent election, neither will he be able to bring the experience and expertise he has gained while filling the seat (and at least in Illinois, the appointee will serve until the next scheduled congressional election, meaning until late 2010).

Second, this attitude carries consequences for efforts at ensuring the continuity of Congress in the event of a catastrophic event. I have written and testified on this subject before. What happens if a terrorist attack kills a critical mass of Senators and House members--say only 100 House members and 25 Senators remain? Accepting that so many elections cannot possibly be held sooner than 45 days (and it likely would take closer to three or four months or more), a working Congress can be re-created in the meantime only through appointments.

Of course, appointments only are allowed in the Senate, not the House. I have argued, in writing and in legislative testimony (one time at a hearing alongside Professor Levinson), for a constitutional amendment empowering states to provide for appointments to the House, at least in the case of mass vacancies. Proposals have gone nowhere, however, in part because House members such as Rep. Sensenbrenner of Wisconsin (who chaired the House Judiciary Committee prior to the 110th Congress) believed such appointments, even in an absolute emergency, destroyed the essential democratic character of the House. Given the shenanigans surrounding the latest round of Senate appointments and the emerging attitude towards the appointment power generally, the Sensenbrenner view of House appointments is unlikely to change. And the attitude towards Senate appointments is somewhat poisoned.

But again, consider the alternatives: In the mass-vacancy context the generally recognized alternatives are as follows:

1. there is no functioning federal government to respond to the crisis for a matter of months because only the Senate can be quickly brought up to full strength, but the Senate cannot legislate by itself*, meaning there can be no new legislation, no declarations of war, no funding for various efforts, etc.;
2. there is no functioning Congress, so the executive acts on her own, resulting in what Levinson decries as a "constitutional dictatorship of the Executive Branch";
3. the rump House acts as functioning body so long as a quorum of those living members is present (and we could play a "how-low-can-we-go" on this--what about a rump of 50? 20? 10?)**

So now consider again which is least democratic--a few months with appointed House members or a few months of the alternatives of 1) no working federal government, 2) a constitutional dictatorship of the Executive Branch, or 3) legislation enacted by a body that lacks "representation" of more than 3/4 of the people of the United States? I would prefer a few months with an appointed congressmen. But maybe that is just me.

• But Cf. the various works of Seth Barrett Tillman, who argues in a number of articles that a full Congress now could delegate to a post-attack Congress the power to enact legislation through only one house (the Senate, reconstituted via appointments) in the interim.

** There is an open question of constitutional quorums here. For the moment, I am assuming that a house could, as both presently do, define their quorums as majority of members chosen, sworn, and living, such that a majority of the rump could constitutionally act. If I am wrong in that assumption and the Constitution requires a majority of authorized seats, then we are back to situation # 1 or # 2--no House activity, thus no congressional activity and either no government activity or executive unilateralism until elections can be held.

Updated and Moved to Top: Sunday, 3 p.m.:

On a slightly related point, Stuart Benjamin offers some thoughts on Michael Bennett, the Denver Schools superintendent who will be appointed to the vacant Colorado seat and who was Benjamin's law school classmate. Benjamin says that Bennett's personality is very different from that of the typical politician, suggesting that he might not have run for Senate on his own and only would come into office via appointment. This gets into the question of the relative merit and qualifications of elected as opposed to appointed officials.

This ties to my broader point about who governors should appoint under the Seventeenth Amendment: As I said, I do not like the idea of a "placeholder" appointee who is not positioned to run for the seat; governors should try simply to find the "best" person for the position, including someone who might then run, as an incumbent, to keep the office. And to the extent the temporary appointment produces a good office holder who might have fallen through the cracks otherwise, who then might benefit from experience and incumbency, so much the better.