How to Fix the "Appointment" Process

Lt. Gov. Michelle Fischbach (R-MN)

I don’t oftentimes agree with Republicans.  Particularly in 2018, with even the most moderate of Republicans like Susan Collins causing me nothing but heartache in the past year, it’s not often that I agree with Republicans, and in particular twice in a row, but recent actions in Minnesota and Alabama are showing that principle (on my part, not always theirs) occasionally trumps party, and that we need to figure out a better way to address political appointments.

Both Alabama and Minnesota have, in the past two years, had Senate vacancies that caused a lot of stir.  The former’s was Republican-induced, with President Trump appointing then-Sen. Jeff Sessions to head the Justice Department, and which resulted in a stunning victory for the Democrats by US Attorney Doug Jones.  The latter’s was a result of the resignation of Sen. Al Franken, something that has left a bitter taste in the mouths of many progressives who adored Franken, particularly amid allegations of a Roger Stone conspiracy, coupled with accusations that he was sacrificed to make it easier for Jones to beat Roy Moore in Alabama or to boost Kirsten Gillibrand’s presidential prospects.  I don’t want this to get into a discussion on Franken specifically, but I will state that I supported, and still do support Franken’s resignation as I felt that being represented by him was not something I was comfortable with (I was no longer willing to vote for him in a primary after that), but I particularly think it’s time to move on and idiocy to punish Tina Smith with Trump still in 2018 (we will need all of the fighters we can get for the back half of his first-term, and Smith is one of them).

But again, that’s not the point here-the point is what happened after these vacancies, and specifically how both were filled with Democrats.  The Alabama state legislature looks set to pass a law requiring that a special election be held only in regularly-scheduled federal elections rather than having an off-election, which the Republicans blame on how Jones beat Moore (ignoring the fact that Roy Moore overwhelmingly won their primary and was just the worst candidate you could possibly imagine running for this seat).  In Minnesota, Gov. Dayton’s decision to pick his lieutenant governor left her office open, and the line of succession mandated that State Sen. Michelle Fischbach take her place, with the Republicans now suing to let Fischbach hold her critical State Senate seat even while LG, even though Minnesota Attorney General Lori Swanson has stated she can’t do that.  The Republicans even proposed having a special session to elect a new Democratic State Senate President to allow Dayton’s LG to be of his own party, but Democrats balked at this, primarily because Fischbach’s resignation (or potentially them winning her seat) would flip the State Senate over to the left.  Republicans obviously don’t want this to happen, particularly over a largely ceremonial office for a term that will end in just 11 months.

The thing is, here, that the Republicans are actually right on both counts.  I think they are bad sports and horrid for choosing this time in particular in Alabama to pass such a law, but it didn’t actually “need” to have an election immediately to fill Sessions seat.  Other public figures have been replaced by Democrats without us batting an eye about them getting a full two-year-term in office; you can look as recently as 2009 for a clear example.  That year the nation elected two Democratic senators to the White House (Barack Obama and Joe Biden) and they in turn appointed two more to their cabinet (Hillary Clinton and Ken Salazar).  All four were replaced by Democrats (Roland Burris, Ted Kaufman, Kirsten Gillibrand, and Michael Bennet, respectively), and all four served until the next regularly-scheduled federal election with little issue.  While I think that a special election winner should be seated pretty much immediately (the tax bill should have been forced to have a vote with elected Doug Jones, not appointed Luther Strange), I don’t have a problem with them avoiding an expensive special election, particularly if the party the people chose to begin with is being represented still.  It’s worth noting that the Democrats tried something similar to Alabama in the run-up to the 2004 election in Massachusetts to prevent Mitt Romney from appointing the replacement to a hypothetical-President John Kerry, a move that ended up being foolish in hindsight when Scott Brown pulled off a shocking upset over Martha Coakley in 2009.

Similarly, the Fischbach situation seems to reek of opportunism on the part of the Democrats.  Fischbach clearly doesn’t want to be lieutenant governor rather than a state senator, and only was Senate President to do the other roles of the position.  Considering she doesn’t want to give up her seat, and picking up her State Senate seat is a longshot, it would make more sense for the Democrats to simply elect one of their own as a State Senate President (perhaps a state senator from a safe blue seat that was going to retire anyway), and have he or she serve out the remainder of Smith’s term as a career-capper.  It’s worth noting, of course, that Democrats are playing with fire here in a way they aren’t in Alabama (where Jones was nothing but upside); if Dayton were to die or have to resign (he does have cancer and is in his 70's, after all), Fischbach would become governor, thereby giving entire control of the Gopher State to the Republican Party.  Even with a few short months in charge, they would be able to have an enormous impact.

Honestly, I think the entire appointment process should be changed to mirror Wyoming’s Senate process, where if a senator dies or resigns, he or she is automatically replaced by someone of the same party; the state party of the departed senator chooses three candidates, and then the governor chooses one of those three.  This way, the seat doesn’t exchange hands from the people’s will (at least in terms of partisan makeup) until the next federal election.

This would cause situations where a senator who is clearly unable to serve properly could resign without it disrupting control of the Senate.  Look at Tim Johnson or Mark Kirk, both senators who suffered strokes and missed months of work (leaving the people of their state without representation for dozens of votes), who stayed on in at least some part due to the fact that they had governors of the other party who would choose their successor.  This is wrong, and disrupts the will of the people; Johnson & Kirk forfeited the rights of millions of people to have a voice in Congress in large part due to the fact that it would have cost their party too much to have them resign.  In a perfect world, a senator would be selected of the same party, and then have to stand in the next scheduled federal election.  This would be a fair solution to alleviate at least some of the “win at all costs” mentality in Washington.