Senate Minority Leader Mitch McConnell, the man we all know and don’t love, appears to be engineering his exit from the U.S. Senate, maybe. In short, he’s supporting a bill proposed by the Kentucky legislature that would require the governor to select a replacement senator from the same party as an outgoing senator. Fishy.
Indeed, it makes sense that McConnell would support this in any case, but why now? Notably, Kentucky Governor Andy Beshear is a Democrat. McConnell, of course, is a Republican. McConnell is also 79 years old and his wife is in some hot water, to say the least. For McConnell, an exit from the Senate might finally seem sensible.
But I don’t want to focus on McConnell — I want to focus on Governor Beshear and the proposed bill that would curtail his power. As Kentucky’s Executive, Governor Beshear would need to sign the bill for it to become law. He must refuse to sign it, period. There are plenty of excellent reasons for him not to sign it—ethics, the fact the people elected him democratically and that this is part of his job, the fact the Republicans are trying to deconstruct democracy—but perhaps most importantly, at least for the moment, not signing the bill would put enormous pressure on the Kentucky legislature and, of course, McConnell himself. To be sure, not signing the bill would be a power move for Governor Beshear, but it really is the right thing to do.
But what’s more, I don’t even think the bill would be constitutional. In other words, I don’t think they could even pull off this power grab.
Here’s my legal analysis, for what it’s worth: The Seventeenth Amendment of the U.S. Constitution vests state legislatures with the power to give the governors of that state the power to appointment a temporary U.S. Senator who can sit for that state until the governor calls a special election to fill the vacancy. The power the Constitution grants to the legislature, at least in my opinion, appears to be binary: the legislature can either give the governor the power to appoint a temporary Senator or not.
I think there’s a problem with the proposed bill here in that it would abridge the governor’s power and force him or her to make a political decision. The legislature only gets its power to allow a governor to make temporary appointments from the U.S. Constitution (the law of the land). The discretion it gives the legislature does not seem to be a political one—it seems to be a procedural one. It turns out that at least one state already has a similar law to the one proposed in Kentucky—Wyoming. The constitutionality of that law is questionable and as far as I can tell, untested in the courts (feel free to correct me in the comments if I’m wrong). Let’s see where McConnell and his lackeys in the Kentucky legislature try to take this, but I don’t think they’re going to get what they want out of it.
Democracy thrives in snarkiness