The Superannuation Of Senator Ted Kennedy

[ Posted Thursday, August 20th, 2009 – 15:15 UTC ]

Let's start with the definition (I had to look it up, myself, I have to admit).

superannuate -- (1) to allow to retire from service or office on a pension because of age or infirmity. (2) to set aside as out of date; remove as too old.

This is a tough subject to write about, because Edward "Teddy" Kennedy, brother of John F. Kennedy and Robert F. Kennedy, has served Massachusetts in the United States Senate longer than I've been alive -- almost a half-century. Served, it hardly needs adding, with distinction. His nickname on Capitol Hill these days is "The Lion of the Senate," which just shows the respect and admiration many other politicians feel for the man.

It's also tough to write about because the Kennedy clan's history was seemingly written by a classical Greek tragedist in a particularly foul mood. And the timing, right after a matron of the family was just laid to rest, doesn't help either.

But facts must be faced, and the fact is that Ted Kennedy is nearing the end of his life. And the fact is also that he has not been an effective senator for his home state much in the past few months. The cause, of course, of this particular Kennedy tragedy, is medical. Kennedy is fighting a nasty form of brain cancer, which more than explains his continued absence from the Senate floor of late. But while this is a fact to be explained (and, one assumes, forgiven) by his constituents (who, for the most part, revere Kennedy) -- it is a fact nonetheless.

Everyone knows that Kennedy is hanging on in anticipation of casting a vote for a healthcare reform bill in the Senate, and a virtual guarantee that he will be prominently featured during the signing ceremony of such a bill by President Obama. Kennedy has devoted a large portion of his legislative life to working on healthcare, and if a bill is passed and signed, it will have come about in part through Kennedy's lifetime efforts on the subject. He deserves to be at that signing ceremony, in other words.

But there's no guarantee he will be. In the first place, a bill might not make it to the president's desk this year. And in the second place, Kennedy might not still be around. This is grim, but simply has to be faced up to.

Of course, everyone who supports healthcare reform is also hoping Kennedy will indeed make it to the signing ceremony. But this hope may not be fulfilled in the end.

Senator Kennedy made the news in Massachusetts today because a letter he sent to the governor and the legislative leaders was released to the press. In it, Kennedy calls for a process to guarantee that Massachusetts will have two senators, one assumes to avoid the ultimate tragedy of Kennedy's death leaving a vacancy -- and then having a bill die for want of one Democratic vote. This would be tragically ironic, and Kennedy is trying to avoid such a scenario.

Here is the full text of the letter:

Dear Governor Patrick, President Murray and Speaker DeLeo:

For almost forty-seven years, I have had the privilege of representing the people of Massachusetts in the United States Senate. I am proud of the contribution our Commonwealth has made to the great debates of our time and our national history. I believe the voices and views of those we have elected to the Senate and the House of Representatives have shaped America's progress -- from the days of John Adams and Daniel Webster to the present.

I am now writing to you about an issue that concerns me deeply -- the continuity of representation for Massachusetts should a Senate vacancy occur. In 2004, as you know, the law was changed to provide for a special election to choose a new Senator to serve for the remainder of an unexpired term. The law now mandates that the special election be held 145 to 160 days after a Senate seat becomes vacant. I strongly support that law and the principle that the people should elect their Senator; I also believe it is vital for this Commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election.

I therefore am writing to urge you to work together to amend the law through the normal legislative process to provide for a temporary gubernatorial appointment until the special election occurs. To ensure a fair election process, I also urge that the Governor obtain, as a condition of appointment of the interim Senator, an explicit personal commitment not to become a candidate in the special election.

Serving the people of Massachusetts in the United States Senate has been -- and still is -- the greatest honor of my public life. As I look ahead, I am convinced that enabling the Governor to fill a Senate vacancy through an interim appointment followed by a special election would best serve the people of our Commonwealth and country should a vacancy occur.


Edward M. Kennedy

On the face of it, it sounds pretty reasonable. But before we get to the reasonableness of Kennedy's request, first we have to take into account the history involved. Massachusetts, like many states, used to have a provision in its laws for the governor to appoint a replacement to any vacancies in the United States Senate. The power to appoint such a replacement was absolute, meaning all kinds of mischief was possible (see: Rod Blagojevich). The most common mischief would be a governor changing the party affiliation of the seat by his appointment. This was a very real possibility in 2004, which is when Massachusetts changed their laws. Back in 2004, if you'll remember, the other senator from The Bay State was running for president. And if John Kerry had won, he would have left a vacant seat in the Senate when he moved to the White House. The problem at that point was that Mitt Romney -- a Republican -- was governor of the state. Meaning he likely would have named a fellow Republican to the seat, as is just about expected -- for either party, mind you -- in this situation.

Democrats, who controlled the legislature, didn't like this prospect, so they passed a new law. This law is the one Kennedy is referring to in his letter. But Kennedy is being a bit disingenuous in describing the problem. The law (Chapter 54, Section 140 of Massachusetts General Law) does indeed lay out the timeline Kennedy says:

Upon failure to choose a senator or representative in congress or upon creation of a vacancy in that office, the governor shall immediately cause precepts to be issued to the aldermen in every city and the selectmen in every town in the district, directing them to call an election on the day appointed in the precepts for the election of such senator or representative. The day so appointed shall not be more than 160 nor less than 145 days after the date that a vacancy is created or a failure to choose occurs.

However, Kennedy fails to take into account the second half of the same key paragraph (a):

Filing a letter of resignation creates a vacancy under this section, even if the resignation is not effective until some later time, but the date of the election to fill a vacancy under this section shall be after the resignation is effective.

The difference is between "creation of a vacancy" (in the law) and "after a Senate seat becomes vacant" (from Kennedy's letter). They sound like the same thing, but they are not, as can easily be told by the clarifying sentence which ends the paragraph.

To put it quite bluntly: the problem Kennedy is describing would only happen if there were a sudden vacancy -- as when a senator dies in office, for instance. Because the legal definition, in this case, of "vacancy" merely means "a letter of resignation has been filed," and not, as Kennedy writes, a guarantee of the absence of one vote for "approximately five months between a vacancy and an election" -- unless the vacancy was sudden and unexpected. So Kennedy himself could avoid the problem altogether by signing a letter of resignation which stated that he would be resigning, effective 155 days from the date of the letter. This would mean the 160-day "clock" would start, but Kennedy would remain in office in the meantime. During the five-month period of the special election, Kennedy would still be in office and the Commonwealth of Massachusetts would have two representatives in the Senate for all but a few days. Problem solved.

Of course, this is a pretty heartless suggestion, which would mean (in essence) that Kennedy would have to fairly accurately predict when he was about to die. He obviously wants to hang around long enough to see healthcare legislation through, but at the same time he must also know that this will be his swan song, capping his life as a public servant. And critics will more than likely point out that for the past few months, Massachusetts has indeed only had one effective vote in the Senate, since Kennedy has been present for only a few votes this session -- which has left John Kerry as the only vote representing Massachusetts in the chamber.

So Kennedy would have to guess how much longer he can be an effective senator. If he resigns too early, it means he could have gone on for a while longer and will have to endure retirement instead. If he resigns too late, or dies suddenly, then there will indeed be a gap of representation for his state -- the big fear being that this period will happen right when healthcare legislation comes up for a critical vote, where Democrats need every single vote they can get.

As I said, it's a pretty heartless and crass calculation to ask anyone to make. But it is also part of the job. Any elected official's duty is to represent their constituents to the best of their ability. When an officeholder is unable to perform his or her responsibilities, then duty demands he or she step aside -- so someone who is up to the job can give the people the representation they are constitutionally entitled to. Otherwise the officeholder is shortchanging the people by not fully doing the job.

Now, I am not writing today to demand Senator Kennedy step down immediately, or indeed, at any point in the future. That sort of thing is for his constituents to decide, and not for me. And because he is (by his very nickname, quite literally) lionized by his voters, I don't really expect this sort of thing to happen any time soon. Kennedy is apparently taking quite seriously all possible outcomes, as evidenced by his writing this letter in the first place, so it's not like he is ignoring the problem at hand. But I do have to say that his call for changing the law may be asking too much, to solve a problem which he himself could eliminate if he chose to. In his penultimate paragraph, Kennedy doesn't explicitly call for this new law to require that an interim appointee agree not to run in the special election, instead this has the flavor of more of a suggestion for the governor to do so out of the goodness of his (and the appointee's) heart -- as evidenced by the term "personal commitment," rather than something like "legally-binding agreement." While it would be a good idea to put such a clause into the law Kennedy is calling for (rather than just trusting the governor to do what is right), I have to reluctantly say that the law Kennedy is calling for itself is not justified.

Minnesota just went through an eight-month period with a sole United States Senator. The world didn't come to an end. Neither did the Senate, for that matter. Sure, it was frustrating for everyone (most especially the folks in Minnesota, one assumes), but this interruption in representation was eventually rectified. And, I have to say, during this time period not a lot was said by Democrats in Washington on the subject. Al Franken fought his court battle, and eventually prevailed, without a whole lot of support from members of his own party.

But that is neither here nor there in this discussion. What is, though, is that Senator Kennedy seems to be suggesting a law for nothing more than his own convenience. It pains me to say it, but Kennedy is being just a tad bit self-indulgent here. Because he could arrange quite easily for a smooth succession, without any new laws being required. He could sign a letter of resignation tomorrow, which stated that he was resigning, effective January first (or some other date in January, to allow for an election to happen before Congress reconvenes after their end-of-the-year break). This would allow Massachusetts to schedule a special election in an orderly fashion, and would give Kennedy until the end of this year to continue to serve.

This may even have result of increasing the pressure behind the push to reform healthcare. Conventional wisdom inside the Beltway already is saying that if it doesn't happen this year, it is not likely to happen next year, in the heat of the midterm elections. Meaning that if Congress doesn't make the end-of-year deadline, Kennedy's chances for being around for a bill-signing ceremony shrink considerably anyway. Either way, it would be a gamble for him, throwing down a gauntlet which said: "Pass it now, while I am still alive."

But at the end of the day, Kennedy is right about one thing, when he says: "I also believe it is vital for this Commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate...." The people of Massachusetts do deserve two votes in the Senate. But they, in essence, only have one right now. If Kennedy cannot fulfill the duties of the office he was elected to, then at some point he's going to have to put this principle above his own sense of legacy, and take action to ensure that the people of the Commonwealth do have a full voice in the Senate. He can already do so -- and ensure the continuity of such representation -- right now, without any new legislation, any time he chooses to. All he has to do is sign one more letter. One which begins "Effective January 1, 2010...." He can superannuate himself, in other words, for the good of the people who elected him.


-- Chris Weigant


4 Comments on “The Superannuation Of Senator Ted Kennedy”

  1. [1] 
    Chris Weigant wrote:

    Notice to everyone:

    OK, I am working through the comment backlog, and apologize once again for my tardiness. I went back to "The Effectiveness of Yelling" and have worked my way up to two days ago. If you commented on anything in the past few weeks, go back and take a look to see if I've responded. I still have two columns (with LOTS of comments) left to tackle, but I'm taking a break to go watch the news, so they'll have to wait until later tonight.

    Just wanted to let everyone know, I'm getting fully back up to speed here again, and I have not been ignoring your comments in the meantime, I just haven't had a moment to respond, that's all.

    Today's column was a tough one to write, but it's been at the back of my mind for a while, and Kennedy's letter pushed it to the forefront.


  2. [2] 
    Michale wrote:


    Do you write for Fox News under the pen name, Dana Perino? :D

    Reading that, it sounds like it could have been written by you! :D

    Interesting reading.

    As far as the subject of the commentary. While I hesitate maligning someone so close to death, I have never been a fan of the Kennedys. I respect the achievements of Kennedy and recognize all his contributions. But, there is a definite aura of "royalty" about them. Like they are entitled to the afore mentioned respect, no because of what they have accomplished, but rather because of who they are.

    The "Windmill" saga is but one example of this and these latest actions simply confirm it. They push a law to cover one situation that benefits them and then ask that it be disregarded when it becomes inconvenient.


  3. [3] 
    Michale wrote:

    Interesting reading here, CW...

    You make the point a lot more diplomatically than the WSJ does (no surprise there) but both are dead on.

    Kennedy doesn't like the rules so he wants to change them.

    Which, in and of itself, is not that big of a deal. Until one learns that the rule in question is one Democrats insisted on back when it was to their benefit to do so.

    Hypocrisy, thy name is Democrat...

    To be fair, that should probably read, "Hypocrisy, thy name is 'Politician'" but the point couldn't be made as well. :D


  4. [4] 
    Michale wrote:

    Speaking of compassion..

    I am disgusted beyond words at the actions of the Scottish courts.

    Once again, it illustrates how those on the left are falling over themselves, showing compassion to scumbag terrorists, while flipping the bird to the victims of terrorists.

    Disgusting. Purely disgusting.


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