January 10, 2008

Sen. Kyle's Coup

State Sen. Jim Kyle wants to give the governor the power to appoint temporary replacements for sitting legislators who are "unable to fulfill the duties of that member's office." Kyle, a Memphis Democrat, has filed legislation that would authorize a sitting legislator in that scenario to voluntarily appoint their own temporary replacement, or to be involuntarily temporarily replaced by the legislature and governor.

The legislation even would give the legislature the power to prevent the elected legislator from resuming his or her duties. Here is the text of the legislation:

SECTION 1. Tennessee Code Annotated, Title 3, Chapter 1, Part 1, is amended by adding the following as a new section thereto:

3-1-121.
(a) If any member of the general assembly is temporarily unable to perform the duties of the member's office:

(1) Such member may make a written request to be filed with the chief clerk of the house to which the member was elected that a temporary replacement be appointed until the incumbent member is able to perform the duties of that member's office, or a vacancy occurs in such office or until the next election, whichever occurs first; or

(2) Any member of the house to which the incumbent was elected may bring a resolution requesting that a temporary replacement be appointed until the incumbent member is able to perform the duties of that member's office, or a vacancy occurs in such office or until the next election, whichever occurs first.

(b) Any person serving as a temporary replacement appointed pursuant to subdivision (a)(1) shall be appointed by the incumbent member. Any person serving as a temporary replacement appointed pursuant to subdivision (a)(2) shall be appointed by the governor.

(c)(1) When the general assembly is not in session, any member who had a temporary replacement appointed and who is then able to perform the duties of office shall automatically be restored to such office upon written notice to the speaker of the appropriate house.

(2) When the general assembly is in session, any member who has a temporary replacement appointed shall file notice with the chief clerk of the appropriate house who shall inform the body that such member is now able to fulfill the duties of office and intends to return to such duties. Any member of the house to which the incumbent was elected may file an objection to such member's return within three (3) legislative days of the notice being given by the clerk. If no objection is filed, such member may return after the three (3) legislative days have passed. If an objection is filed, the incumbent member's house shall vote on whether or not to allow the member to return to the duties of the member's office. For the objection to be sustained, it shall take a two-thirds (2/3) vote of the entire membership of the incumbent member's house. A member shall not be allowed to file a notice of return more than three (3) times in a legislative session.

(d) Nothing in this section shall be construed to amend or repeal existing laws relating to filling vacancies in the general assembly.

Kyle wants Sen. Ford replaced, whether she wants to be forced out of office or not.

The legislation is an appaling affront to the principle of self-determination in a representative form of government, and the people of Sen. Ford's district, Senate District 29, should be highly offended at Sen. Kyle's attempt to authorize a legislative coup.

Beyond District 29, Kyle's legislation would allow partisan monkey business when the governor and the majority in the legislature were of the same party. Kyle's legislation would enable them to collude to remove legislators of the opposite party and replace them with "temporary" replacements from their own party.

The people of Senate District 29 elected Ophelia Ford and despite the fact that her health prevents her from fully participating in the senate session this year, they have not called for her to resign.

Beyond the boundaries of District 29, Tennesseans of all political stripes should be offended at Kyle's proposal. Consider this: If Kyle's legislation was law and one party controlled both the legislature and the governor's office, that legislature and governor could use Kyle's law to declare legislators of the opposite party to be "unable to perform their duties" and remove them and replace them with "temporary" replacements from the governor's political party.

Although the Ophelia Ford case involves her medical incapacitation, the legislation sets no definition of "unable to perform their duties" - presumably, the law could be invoked for any reason chosen by the majority party and governor. A future Republican legislature could declare Sen. Kyle "unable to perform" if he fell asleep during a committee hearing, and have a Republican governor replace him with a wide-awake Republican.

It's a silly example, to be sure, but it would be entirely legal if Kyle's legislation became law. (At a minimum, the legislation should allow the governor only to appoint temporary replacements for legislators from his own party, but if the member being temporarily replaced is of the opposition party, that party's House or Senate leader or party chairman should have the authority to pick the replacement.)

Kyle's legislation, thankfully, has no sponsor in the state House.

I spoke too soon. The Memphis Commercial-Appeal reports that Senate Democratic Caucus chairman Joe Haynes of Nashville and House Democratic Leader Gary Odom of Nashville both said they support the bill. Odom will sponsor it in the house.

Update: C-A reporter Rick Locker has done a write-through of the above-linked web story to include comments from Republicans and other legislators, and now Locker is reporting that Odom has not agreed to carry Kyle's legislation in the House, but is "interested in reviewing it."

Update: Here is the Chattanooga Times-Free Press reports on Kyle's legislation.