I Have an Idea

When weighing the appropriate response to accusations of impropriety, criminality, or other wrongdoing by members of Congress, it is nearly impossible to avoid grubby, instrumentalist politics, even if one imagines one is operating purely on principle or ethics. To wit: Most of the Democrats, liberals, and leftists who called for the resignation of Senator Al Franken have been largely silent on the question of what to do with New Jersey Senator Bob Menendez, who, mistrial or no, is plainly corrupt in a way that has much clearer and more direct bearing on his work as a senator than Franken’s misconduct did.

Menendez obviously should not be in the United States Senate. But New Jersey’s governor is a Republican—at least until next month, when New Jersey’s governor will become a Democrat, at which point I expect we might suddenly start hearing that it is time for Menendez to step aside.

In a column specifically about accusations of sexual harassment and abuse, Matt Yglesias makes the point that partisanship is an entirely defensible reason to occasionally exhibit this sort of hypocrisy, because winning and maintaining power is, it turns out, the point of doing politics. He’s not wrong, but it would certainly be better for our country, our politics, and our consciences if we weren’t regularly forced into exhibiting this hypocrisy, because of completely arbitrary rules about political succession.

Senate vacancies are mostly filled by gubernatorial appointments, which is why Franken, from Democrat-controlled Minnesota, was “OK” to force out, but Menendez, for now, isn’t.

There’s a pretty simple fix for this: Take governors out of the equation. When there’s a partisan mismatch between governor and senator, partisans have an incentive to forgive or ignore malfeasance. If it were revealed tomorrow that Sen. Richard Burr is running a dog-fighting ring, his Republican colleagues would defend his integrity and ethics for so long as Roy Cooper, a Democrat, remains the governor of North Carolina.

Some have suggested merely requiring that replacements be members of the same party as departing members, as a few states already require. This seems a simple enough fix, but it has some flaws: It doesn’t quite work with independent politicians, and it would be fairly easy for a malevolent governor to pick a party member “in name only” to replace a reliable partisan—imagine, for example, Menendez getting replaced with Pat Caddell or some other Fox News Democrat.

No matter what, voters are left being represented by someone they didn’t choose. There’s obviously no way to avoid that when dealing with unplanned Congressional departures, but I think it can be ameliorated. Here’s my proposal:

In the event of a resignation, expulsion, or death of a senator, the departing senator’s chief of staff or legislative director (the member can choose which, maybe? I haven’t worked this part out yet) will take the seat on a purely interim basis until a special election is called.

This doesn’t just guarantee partisan continuity. It also goes a long way toward guaranteeing that the member’s temporary replacement will act and vote broadly in line with how the former senator’s constituents expected their representative to vote. These high-level staffers are qualified (they’re probably better-informed than their bosses, in most cases) and already in touch with the needs and concerns of the constituency they would represent. This would also provide more incentive for everyone, in both parties, to fully investigate and expose malfeasance, because it reduces the chances that an ousted member of Congress will be replaced by someone from an opposing party—or even by someone on the other end of that party’s ideological coalition.

And it would free up senators to do things like take positions in incoming administrations, or act as presidential running mates, without worrying about who would be appointed to replace them. (We could’ve had Clinton/Brown instead of Clinton/Kaine!)

It also should be fairly easy to prevent this system from being abused. I think you’d really only need a couple rules to prevent blatant corruption or nepotism:

• The interim representative can’t be a close family member or business partner of the departing member.
• The interim representative will be ineligible to run for the seat in the special election to serve out the term (but eligible to run whenever the next regular election is held).

The second rule in particular is important: A corrupt senator could install his or her preferred successor as chief of staff right before a resignation, but that wouldn’t mean very much if that successor wasn’t allowed to keep the seat for more than a year or so.

Obviously my plan could have some issues with eligibility and qualifications, including the minimum age requirement for senators (which, while we’re on the subject, is stupid and archaic and should be replaced with a maximum age limit). Another problem is the Seventeenth Amendment, which, in laying out the rules for filling Senate vacancies, says only that state legislatures may give governors the right to appoint replacements. There are indeed already a few states whose legislatures require governors to appoint replacements from the same party, so my Good Idea is still possible, but it might have to be done through state legislatures, where Good Ideas go to die.

The Constitution is also the main hindrance to implementing this plan in the House, where it would also be an improvement over the status quo, though not one quite as urgently needed. House seats simply remain vacant until governors call special elections, and governors, as you can probably imagine, routinely abuse this rule for partisan purposes. (John Conyers’s former seat will go unfilled for nearly a full year, thanks to the Republican governor of Michigan. Trent Franks’s safely Republican former seat will be vacant less than half as long.)

So the solution, in lieu of a constitutional amendment, might be to take a quasi-constitutional approach: Make temporary replacements not senators and representatives, but “delegates,” or some other alternative term, temporarily granted full voting rights until duly elected senators and representatives can replace them.

Perfect. Let’s do it. Call your senator and ask him to do this now, before he is forced to resign for something you don’t know about yet.