Fixing the 25th Amendment

One of the many interesting hearings held by Senator Bayh's Subcommittee concerned the following proposal made in 1975:

JOINT RESOLUTION -Proposing modification of the twenty-fifth amendment of the Constitution of the United States.

SECTION 1. If an individual takes the office of Vice President under section 2 of the twenty- fifth article of amendment and subsequently becomes President under section 1 of that article at a time when more than twelve months remain in the term of the President, then-

(a ) there shall be a special election for the offices of President and Vice President,

(b) section 2 of the twenty- fifth article of amendment shall not apply to the vacancy in the office of the Vice President caused by such individual becoming President,

(c) such individual shall serve as President only until a President elected in such special election takes the oath of office of President,

(d) the Speaker of the House of Representatives, shall in addition to his duties as Speaker, act as Vice President, and perform the duties of that office with one exception that the President pro tempore of the Senate shall serve as President of the Senate with voting privileges, until a Vice President elected in such special election takes the oath of office, and

(e ) in the event the Senate shall be equally divided, the Secretary of State may cast a vote to break the tie.

SEC. 2. The provisions of this Constitution relating to the appointment of electors for President and Vice President shall apply in the case of special elections required by section 1 ( a ) . The Congress shall by law prescribe the date for such elections and such other matters relating to such elections as may be necessary to effectuate the purpose of this article.

SEC . 3. The individuals elected as President and Vice President in a special election required by section 1 ( a ) shall become President and Vice President upon taking their respective oaths of office. Nothing contained in this article shall affect the terms of the President and Vice President as prescribed by section 1 of the twentieth article of amendment.

One concern here was that we should not an unelected Administration for a significant length of time. The Ford Administration, of course, was completely unelected for over two years. The proposal also provided for a temporary Vice President when there was a vacancy under some circumstances, though with the questionable  idea that the Speaker would serve simultaneously as Vice President until the special election was held. Complicating things further, the Senate tie-breaking function would temporarily go to the Secretary of State. Under current law, there can be no temporary Vice President and the tie-breaking function cannot be delegated.

You can see this as a sort of parliamentary modification to the Constitution. Special (or early) elections are often part of a parliamentary system. Likewise, the mix of legislative and executive roles is par for the course there.

Antonin Scalia, representing the Ford Administration, testified against the proposal. He pointed out (1) this would create a caretaker President who would be, in practical terms, rather weak; (2) any special election would have to be held relatively quickly, which created its own problems; (3) this would increase the frequency of those elections, which was a drawback; and (4) the mixing of executive and legislative roles was undesirable. That said, Scalia did support some changes in the 25th Amendment to deal with contingencies such as what happens if there is a double vacancy with a vice-presidential nomination pending. Can the Speaker of the House (now the President) withdraw that nomination or must that nomination go forward? 

Anyway, more to go through on this.