The openly partisan case for returning the power to fill Senate vacancies to the Governor

It is being widely reported that Senator John Kerry is the top prospect for Secretary of State in President Obama’s second term. Accordingly, many expect such a development to provide Scott Brown with a back door route back into the U.S. Senate as a strong contender in another low turnout, off year “special” election.

The reason why we had a special election to fill Ted Kennedy’s seat in the first place was that John Kerry was expected to be the winner of the 2004 race for the White House, which would have empowered then Massachusetts Governor Mitt Romney to appoint a Republican to finish Kerry’s senate term. The Massachusetts state legislature prevented this possibility in 2004 by relieving the governor of this power and requiring a special election to fill the vacancy. In 2009, realizing that they had created an opportunity for a Republican to contest for Kennedy’s soon to be vacated seat, the Democratically-controlled state legislature attempted to repeal their previous changes to the process for filling Senate vacancies, but the effort failed due to enough members balking at the public relations problems of such an overtly partisan manipulation of the law.

If Senator Kerry really is on the short list for Secretary of State, the Democratically-controlled Massachusetts legislature should once again consider restoring the power of the Governor to fill U.S. Senate vacancies. This time, the argument for such a transparently partisan maneuver has much more going for it. The state’s 2010 experience with the special election option appears to have produced a result that was out of step with the preferences of the overall electorate, in part because of the inconvenience and reduced voter education opportunities afforded by the special election calendar. The decisive rejection of Senator Brown by the state’s voters in the 2012 election supports this conclusion. As for the public relations problems of engaging in transparently partisan manipulation of electoral procedures, I think it can be argued that the results of the 2012 Massachusetts elections, in which Republicans were defeated and turned out in races up and down the ballot, constitute the electorate’s ascent to such a maneuver. Furthermore, since the Republican manipulation of the rules of debate in the US Senate have been a major obstacle to the fulfillment of President Obama’s legislative agenda, and the voters of Massachusetts have overwhelmingly supported President Obama’s election in both 2008 and 2012, it could be argued that the prevention of increased Republican power in the US Senate would be quite consistent with the clearly demonstrated preferences of the state’s voters.

Allowing Senator Brown to exploit the more politically favorable conditions afforded him by a special election in 2013 could be understood as both unfair and inconsistent with the expressed will of the most fulsome assemblage of the state’s voters. The re-investment of the power to fill senate vacancies in the governor can be justified as a way to avoid both election fatigue and sub optimal public participation in the state’s electoral process. The 2012 election results made it quite clear that the majority of Massachusetts voters prefer Democratic US Senators and Representatives. [Besides, this maneuver would have the added benefit of sending Bay State conservatives into a hell of a tizzy which, you have to admit, would be fun to watch.]

I think the change in 2004 was a mistake and I think sufficient time has passed and sufficient adverse consequences have been realized to justify the return of the power to fill US Senate vacancies to the Governor of the Commonwealth. If, however, full restoration of this gubernatorial prerogative is a political non-starter, I would support an effort by the state legislature to give the Governor back his appointment power, but also to require that whoever the Governor appoints to fill a Senate vacancy be prohibited from seeking election to the seat in his or her own right until after one regularly scheduled election to fill the seat for a full term has passed.

About Jerold Duquette

Jerold Duquette is an associate professor of political science at Central Connecticut State University. He is the author of Regulating the National Pastime: Baseball and Antitrust and has published articles and book chapters on campaign finance reform, political parties, Massachusetts politics and political culture, public opinion, and political socialization. Professor Duquette lives in Longmeadow, MA with his wife and four children.
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