Debate has intensified on Beacon Hill and across the nation over whether Gov. Deval Patrick should be granted the power to appoint a temporary short-term replacement for the late Sen. Edward Kennedy.

Shortly before his death, Kennedy urged state lawmakers to approve a proposal that would amend a 2004 state law that took away the power of the governor to appoint a temporary replacement to fill any U.S. Senate seat that becomes vacant in Massachusetts. Prior to 2004, the law stated that the governor would name a replacement who would serve out the remainder of the term and also be eligible to run for the seat at the next regular election. The 2004 law, now in effect, does not allow a temporary replacement to be appointed and instead requires that a special election be held within 145 and 160 days.

Kennedy's new plan would leave the special election in place but also allow the governor to appoint a short-term temporary replacement until a new senator is elected. Kennedy also urged that the appointee, as a condition of his or her appointment, promise not to run in the special election.

Supporters of the Kennedy plan argue that in light of Kennedy’s death, the state, under current law would not have a second senator for some five months. They say that the appointment power is necessary in order to ensure full and continuous representation for Massachusetts in the U.S. Senate. Some acknowledge that Kennedy's plan is also designed to ensure that the state has a second pro-health care reform senator in place during any future vote on changing the nation's health care system.

In the summer of 2004, the law taking away the governor's power and providing for a special election was approved by the House 122-30 and the Senate 31-7. It was supported overwhelmingly by all but seven of the House Democratic representatives and senators and opposed by all Republicans. Democrats at that time feared that then Republican Gov. Mitt Romney would have the opportunity to appoint a Republican to fill Sen. John Kerry's seat if Kerry won the 2004 November presidential election. That GOP appointee, under the pre-2004 law, would have served in the U.S. Senate for four years until the regular Senate election in 2008.

During debate on the 2004 law, supporters of repealing the appointment power said that the temporary appointment system was archaic and takes power away from the voters by allowing a governor to make a political appointment that could last for several years. They argued that the temporary appointee would have an unfair advantage as an "appointed incumbent." Opponents of repealing the appointment power said that repeal was sponsored by partisan Democrats who feared that Gov. Romney would appoint a GOP senator. They argued that holding a U.S. Senate election in a very short period of time would give an unfair advantage to incumbent Democratic congressman with huge war chests and make it difficult for lesser-known, underfunded citizens to mount an effective campaign. Some noted that Democratic legislators were being hypocritical because they have never proposed to change a similar law that allows the Legislature to appoint a replacement when the offices of attorney general, secretary of state or auditor become vacant.

On several occasions, there were various proposal filed by the Republicans to allow a temporary appointment by the governor until the special election is held. The most recent was in March 2006 when the GOP filed a bill that would retain the current law requiring a special election within 145 to 160 days but also allow the governor to appoint a short-term temporary replacement until a new senator is elected. The proposal was overwhelmingly defeated in the House on a 22-133 roll call. The bill did not come up in the Senate.

Some GOP legislators are now crying foul and criticizing Democrats who voted against the 2006 proposal and now support Kennedy's similar plan. They argue that some Democrats are singing a different tune now that Democratic Gov. Patrick is in the corner office and would have the power to appoint a replacement if the law is changed.

Some Democrats argue that the Republicans are living in the past and should consider the appointment power under current circumstances instead of harkening back to 2006. They argue that without the temporary appointment, Massachusetts citizens would unfairly be without a second senator representing them for some five months.

A bill that is similar to Kennedy's proposal was filed back in January by Rep. Robert Koczera (D-New Bedford). It would keep the special election intact but also allow the governor to appoint a short-term temporary replacement after the deadline for qualifying as a candidate in the special senate election has passed. The measure also prohibits the appointee from being a candidate in the special election.

Here are the two related roll call votes from 2004 and 2006:


2004 VOTE THAT TOOK AWAY THE GOVERNOR'S POWER TO APPOINT A TEMPORARY SENATOR

House 122-30, Senate 31-7, approved the 2004 law that took away the power of the governor to appoint a temporary replacement when a U.S. Senate seat becomes vacant in Massachusetts. The measure instead requires that a special election be held within 145 and 160 days. (A Yes" vote is for taking away the governor's power to appoint a temporary replacement and for establishing a special election. A "No" vote is against taking away the governor's power and against establishing a special election).

Rep. Thomas Calter, Was not yet elected

Rep. Daniel Webster, No

Sen. Robert Hedlund, No                            


2006 VOTE ALLOWING THE GOVERNOR TO APPOINT A SENATOR UNTIL THE SPECIAL ELECTION

House 22-133, rejected a bill allowing the governor to appoint a short-term temporary replacement to fill any U.S. Senate seat that becomes vacant. The bill would still require a special election within 145 to 160 days but would also allow the governor to appoint an interim senator until a new one is elected. (A "Yes" vote is for giving the governor the power to appoint a short-term temporary replacement. A "No" vote is against giving the governor the power).

Rep. Thomas Calter, Was not yet elected

Rep. Daniel Webster, Yes