The indictment of U.S. Sen. Robert Menendez on corruption charges was not unexpected — we’d been hearing about it for weeks via anonymously sources stories tied to the senator’s history of questionable conduct. But it hit yesterday like a bomb.
Senate Democrats have remained quiet, aside from fellow N.J. Sen. Cory Booker, though New Jersey’s Democratic establishment has been quick to jump to Menendez’s defense (I received a slew of press releases yesterday). The Star-Ledger was quick on the draw, calling in an editorial for the senator to resign, as was The Asbury Park Press. (The Record says it is too early to make that call.)
I’m conflicted — having a senator stay in office while he fights corruption charges means the state will lack strong representation, but pushing him out the door before he gets his day in court means we would be convicting him before a trial. For now, I think I agree with The Record — not today, but not necessarily never.
The split between the GOP and Democrats on this is not surprising — though it may reflect issues that reach beyond Menendez’s alleged conduct and instead be a response to this question: What happens if Menendez resigns? The process is less than straightforward — as this NJ Spotlight story by Mark Margyar following Frank Lautenberg’s death points out:
Republican Gov. Chris Christie, who led the state’s political establishment in eulogizing Lautenberg’s accomplishments yesterday, has the right to appoint an interim senator to succeed the self-made multi-millionaire from Paterson who has represented New Jersey in the Senate for 28 of the past 30 years.
But it is not clear from the language in New Jersey’s election statute whether Christie’s choice can serve for 17 months until November 2014, as Christie would prefer, or will have to run in November, as Senate President Stephen Sweeney (D-Gloucester) and Assemblyman John Wisniewski (D-Middlesex), the state’s Democratic chairman, are already demanding.
The key issue, Magyar writes, is “conflicting statutes”:
Both the U.S. Constitution and N.J.S.A. 19:3-26 allow Christie to appoint a successor to Lautenberg who would serve until the next general election, which is scheduled for November. However, N.J.S.A. 19:27-6 holds that if the vacancy occurs in the 70 days before a primary election — as is the case with Lautenberg’s death the day before today’s primary — the new appointee can serve until the second succeeding election, which would be November 2014. Under that statute, the governor has the right to call a special election, but is not obligated to do so — an interpretation that the nonpartisan Office of Legislative Services agreed with in an advisory opinion issued yesterday.
Christie ultimately appointed his attorney general, Jeffrey Chiesa, and scheduled a special election for three weeks before Election Day — when he was atop the ballot and seeking re-election. It was widely speculated at the time that Christie’s decision was designed to appease Democrats while limiting the Senate race’s impact (the assumption was that Booker would draw more Democrats to the polls and eat into Christie’s likely margin of victory). Little thought appears to have been given to Republican politics.
That is not likely to be the case this time, if Menendez resigns. We have no way of knowing what Christie might put on the table, but one can assume that his presidential aspirations — and the need to appeal to conservatives — will create a different calculus this time out. Republicans control the U.S. Senate 54-44, with two independents caucusing with the Democrats, and adding a 55th to the tally can only help the GOP cause. His audience has shifted, which could alter his approach.
Has this played into the Democrats’ thinking? We can’t know for sure, but it wouldn’t surprise me if it has. After all, a neutered Menendez is better for the Democrats than a GOP replacement, even if the replacement will only serve temporarily.
The situation may be rare — a confluence potential senate vacancies and divided government — but it also is problematic: On the one hand, the state is left with a compromised senator; on the other, the state gets an unelected senator from the opposing party who is serving primarily to further the national ambitions of a sitting governor. Given the choice, it’s easy to see why the Democrats are rallying around Menendez.
Were this a state senator or assembly member — or even a local council member — the vacancy would be filled temporarily by someone of the same political party, as spelled out by the state constitution. Is this perfect? No. But it comes closer to respecting the wishes of the electorate than what exists now and might remove the disincentive currently in place.
As the National Council of State Legislatures points out, there are numerous ways this can be done, ranging from pure gubernatorial appointment to the calling of a special election. And it’s not like the current arrangement is writ in stone — it is based on conflicting statutes and can be changed, as the creation of a lieutenant governor’s position shows.
Nothing is going to change in the short-term — the political interests of both sides are too great. That doesn’t mean it can’t change down the road.
Send me an e-mail.
Hank Kalet 