Monday, August 29, 2011

No, Rebecca Kleefisch Should Not be Recalled as Part of a Package Deal with Scott Walker

This weekend the Journal-Sentinel decided to ask if Governor Walker is eventually recalled, does Lt. Gov. Rebecca Kleefisch go with him? It's a interesting question with a clear, though not necessarily obvious, answer: No.

I would be very surprised if Kleefisch is included in any efforts to recall Walker, even though I can see why there's confusion in the passages of state law cited by the MJS. Personally, I think this is much ado about nothing. Nevertheless, let's pretend that all the bickering lawyers in the world won't be able to answer this Sphinx's riddle tucked between the text of various state documents. Should that happen, and the existing guidance remain nebulous at best, it seems to me that there is ample instruction from other states on how to deal with this conundrum.

As I'm sure we all know by now, only two Governors have previously been recalled from office by their constituents: Grey Davis of California in 2003 and Lynn Frazier of North Dakota in 1921. In both states a Lieutenant Governor was elected separately from the Governor. (This is no longer the case in North Dakota, where the law was changed to create a unified ticket in the 1970s.) In both cases, the recalled Governors were replaced by other men in the subsequent recall elections while their Lieutenant Governor's remained in office.

(Back in the 1920s most Governors and Lieutenant Governors were usually elected to two year terms. North Dakotans were able to replace their Lieutenant Governor in an election the following year. The North Dakota example is also complicated by the fact that the state was essentially governed entirely by an extremely fractious GOP -- there was negligible opposition from Democrats -- so party affiliation doesn't tell the whole story. In California, however, Democratic Lieutenant Governor Cruz Bustamante remained in office under a Repubican Governor until his retirement four years and one election victory later.)

So both cases don't exactly conform to the situation Wisconsin currently faces. The only other remotely analogous circumstance occurred at the federal level with the potential impeachment of President Nixon. Even if Nixon had not resigned and was eventually impeached by Congress, the Vice President would have taken over the office, even though both men were elected on the same ticket. I know what you're thinking: But Nixon's VP wasn't elected on the same ticket at the time of his resignation since there wasn't a VP at the time. You're correct, but had Spiro Agnew not resigned in disgrace months earlier, Agnew still would have assumed the Presidency.

This, by the way, is an interesting constitutional question: the founders developed the levers of impeachment at a time when the Vice President was the consolation prize given to the first runner-up of the Presidential election (see Article II, section 1, clause 3.). The Twelfth Amendment, however, changed how we get a VP to the means we all know and love today, i.e. the Prez and the VP are elected on the same ticket. This means they are almost always from the same party (see Andrew Johnson for the notable exception to the rule) or at at least of the same agenda.

But the founders didn't change the method of impeachment, despite radically changing the structure of the executive branch with the Twelfth Amendment. The Constitution as it was originally written handed over power to an impeached President's political opposition, but as it was amended, the Constitution allows an impeached President to hand over power to a political ally. This is a pretty radical change in game plans and one that really doesn't discussed very much often (at least to my knowledge). It seems like this could be either an elegant correction to an initial mistake, a massively overlooked flaw or a sign of little they though of the VP's office.

But enough with the Constitutional Beta-testing. (I'm sure we'll come back to this at a later date.)

After gubernatorial recalls, we can look at the eight Governors that have been removed from office. They are, in order:

William Holden of North Carolina, 1871
He was impeached over his Reconstruction policies in what was more or less a power grab by his opponents. The North Carolina legislature posthumously pardoned Holden earlier this year. North Carolina elects Lieutenant Governors separately from Governors, but Holden's successor was also a member of the GOP.
David Butler of Nebraska, 1871 
Nebraska's first governor was found guilty of using state funds for personal gain shortly after entering office. Nebraska elects their LGs separately from their governors, but Butler's successor was also a Republican.

William Sulzer of New York, 1913
Sulzer was found guilty of using campaign funds for personal use, but his chief crime was not making the patronage appointments Tammany Hall ordered him to make. New York Governor and Lieutenant Governors share a ticket and following Sulzer's impeachment, his running-mate Martin Glynn succeeded him.

James Ferguson of Texas, 1917
Ferguson did not pay well with others when it came to dealing with several universities in Texas, but this was really just the final straw since he was also misusing funds for his own gain. Texas elects its very powerful LGs separately from it's governors, but a fellow Democrat

John Walton of Oklahoma, 1923
Walton, who should be something of a Progressive martyr and legend, was given the boot when he placed the entire state under martial law in order to curtail the KKK following the Tulsa race riots of 1921. Oklahoma elects their Govs and LGs separately, but his successor was also a Democrat.

Henry Johnston of Oklahoma, 1929
Now this is a really strange story: Johnson was convicted of  "general incompetence" and "neglect of duties" and it was widely believed that he was merely a puppet doing the bidding of his ... secretary! He was also followed by a fellow Dem.

Evan Mecham of Arizona, 1988
Mecham may have been the most blatantly corrupt person on this list: he loaned state funds to his car dealership business among other sketchy abuses of office.

Arizona does not have a Lieutenant Governor's office and the order of succession falls to the Secretary of State. In 1988 the Arizona legislature raced a voter recall effort to see who could remove Mecham from Office first. Impeachment won, but not before the recall effort delivered enough signatures to force a recall election (which was eventually abandoned when the state Supreme Court decided it ws no longer necessary).  This is the only instance where an official from the opposition party took over an office following a Governor's removal.

Rod Blagojevich of Illinois, 2009
Blogo was guilty of being Blogo. In Illinois, the LG and Gov run on the same ticket and Blogo's running-mate took over in the Governor's mansion upon his departure.

Only six states with Lieutenant Governors have impeached their chief executives and only two of those states elected their Govs and LGs jointly. In both cases, the LG took over once the Gov was impeached. This isn't to say that Kleefisch would take over in the event of a Walker recall (unless she ran in the subsequent election), but it does speak to how each state treated the LG's office and the Gov's office as independent entities under changing regimes.

One would imagine that the combination of LGs keeping their positions following successful recalls and succeeding their running-mates following impeachment would provide Kleefisch with a similar independence.

It's an interesting question, but ultimately one that's about as important as the Lieutenant Governor's office: that is, not very important at all. The Wisconsin LG is about as useless an office as one can imagine.

But should the Democrats successfully recall Walker, the LG could become a very interesting office, one that would essentially be using state funds to undermine the administration's message. But that's putting that cart way before the horse.

In any event, I hope the lawyers at the GAB are spending too much time on this issue. There are far more important things to worry about.

1 comment:

Ordinary Jill said...

I think the real question is, will a successful recall of Scott Walker result in Rebecca Kleefisch becoming Governor?