Monday, August 31, 2009

Never mind no cable, what would no Seventeenth Amendment have meant for Ted Kennedy?

Chicago Tribune columnist Eric Zorn mused recently that if there had been cable news and politically charged talk radio in 1969, Teddy Kennedy might not have been reelected the following year, due to nonstop coverage of the incident at Chappaquiddick. Zorn writes:

"If we'd had insatiable 24/7 cable news networks in July 1969, the accident on Chappaquiddick Island in which a passenger in a car driven by Sen. Edward Kennedy drowned would likely have dominated the national consciousness for months....

'Politically, Kennedy wouldn't have survived that kind of media bombardment,' said Bruce DuMont, president of Chicago's Museum of Broadcast Communications and host of "Beyond the Beltway," a national weekly talk-radio show. 'It wouldn't have just been a spotlight, it would have been a heat lamp. On him, on all the investigators, on everyone connected to the story'...

Chappaquiddick was a big story anyway and badly damaged the reputation of the man then seen as the surviving prince and heir apparent of American politics.

But, as DuMont said, there were just three broadcast networks in 1969 offering half-hour newscasts that seldom dwelled for long on any one story. Technological limitations made live remote broadcasting very cumbersome.

'And most talk radio was local and fluffy' under fairness-doctrine restrictions, DuMont said. 'So you didn't have nationally syndicated partisan hosts banging the drum day in and day out saying Kennedy had to go.'

And perhaps therefore, he didn't go. The following year Massachusetts voters resoundingly re-elected him to the Senate. Though the Chappaquiddick scandal probably kept him out of the White House, it never cost him the seat he held until his death this week at age 77."

Okay, but as long as we're playing "what if?" let me bring up a constitutional angle. What if the Massachusetts voters in 1970 never got the chance to "resoundingly re-elect" Kennedy? What if the Constitution had never been changed through the Seventeenth Amendment, which provided that henceforth senators would be "elected by the people thereof"?

Before the 1913 amendment, United States senators were, under the terms of Article I, Section 3, "chosen by the Legislature thereof." In other words, in the early days of the republic, we didn't have popular election of senators, the man filling the seat was chosen by the representatives assembled in that state's capital.

Some states found a way to give the voters a voice in who the senator would be before 1913. To delve into that is beyond the scope of this article; if you're interested see Amar, America's Constitution: A Biography, 2005 pp. 409-15.

But anyway, let's just pretend that in 1970 the question of retaining Teddy Kennedy in office was not one submitted to the electorate, but just to the state legislators. Would Kennedy have kept his senate seat?

I think Teddy might very well have been out of a job, even with the advantage of the Kennedy family name. It seems clear to me that right after Chappaquiddick, a contingent would have developed of legislators believing that it would be preferable for Kennedy to retire and for someone else to take his seat. Obviously, among the legislators themselves there would have been men with designs on the senate, and it's likely someone would have emerged as a leading choice to replace Kennedy. Perhaps the contingent would have failed and Kennedy would have kept his seat in 1970. But remember, it would have been a lot easier to convince enough people among a select group of elected officials that Chappaquiddick made Kennedy an untenable candidate than to make that case to the voters at large in a big state like Massachusetts.

I'm glad we now have the power of direct election of senators, but the downside of it is that today millions of dollars that could be better employed get spent in senatorial campaigns. That problem wouldn't exist if we still let the men and women at the state house make the call. If you're running for U.S. senate you need to pay for TV commercials to try to convince tens of thousands of people to vote for you; you don't need to do that if you just need a hundred other politicians to give you the nod. Under that system, it would have been far simpler for someone in '70 to successfully challenge Kennedy.

Well, we don't have a parallel universe to experiment in, so we'll never know if Ted Kennedy would have been reelected in 1970 if the rules of John Adams time were still in play. But there is one more point I want to make about this. What Zorn writes about Kennedy being "resoundingly" reelected is a tad misleading. Look at the results of the 1970 Massachusetts vote compared to Kennedy's numbers in 1964, the election before Chappaquidick, and 1976, the second election after the incident. Kennedy got 74.26% of the vote in 1964 and he missed 70% of the vote by a whisker in 1976.

What did he get in 1970, with the death of Mary Jo Kopechne fresh in every one's minds? He got less than 63% of the vote. Sure, that's still a landslide, but it's a hell of a lot less support than Kennedy received in '64 or '76.

And it's not too hard to imagine that out of those votes Teddy lost in 1970, a good number of them were people who just couldn't see keeping the man around after what he did that summer night the year before.

One other thing in conclusion. Do you find it as hilarious as I do that on the page I've linked they apparently couldn't find a photo of the Republican who challenged Kennedy in 1970--but they could locate a photo of the Prohibition Party candidate seeking the seat? How would you like to run against a Kennedy AND against booze? What would your campaign slogan be, "Eliminate liquor or you'll be like the Kennedys"?

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