A reality based independent journal of observation & analysis, serving the Flathead Valley & Montana since 2006. © James Conner.

26 December 2015

Bullock not constitutionally required to quickly appoint a new LtGov

Over at Logicosity, Edward Burrow noted on Christmas Eve that 24 days had elapsed since Angela McLean announced she was resigning as lieutenant governor, but there was still no new number two.

Montanans, a normally-patient lot, may soon begin asking, “Is it soup yet?”

The viewers of that wildly popular ad campaign in the early 1970’s, were left to wonder if soups that took longer to prepare had better ingredients than the goopy, canned stuff Campbell’s was peddling.

Burrow thinks Gov. Bullock may have selected McLean’s successor weeks ago.

The delay and silence in selecting a New 2 may be intentional, an attempt to convince observers there is some genius afoot, that Governor Bullock and others have been toiling to find just the right ingredients.

That may have happened before. Burrow provides a link proving that Bullock decided to tap John Walsh to the U.S. Senate long before he announced the appointment.

Two days before Burrow’s post, I wrote:

Expect Gov. Bullock to run out the clock on appointing a new lieutenant governor. Even if he’s already made his selection, and it’s possible he has, waiting until 31 December to announce the lucky person presents the image of great and careful deliberation and vetting, which will help some if this appointment also goes awry. It won’t be lost in the holiday news, as Montana’s reporters will be all over it as soon as they recover from their breaking in the New Year hangovers. As as a humanitarian gesture, it will give Angela McLean a paycheck through the end of the year.

Whether running out the clock is smart politically can be debated. What cannot be debated is that it’s constitutionally permissible. Section 6 of Article VI, The Executive, Vacency in Office, provides:

  1. If the office of lieutenant governor becomes vacant by his succession to the office of governor, or by his death, resignation, or disability as determined by law, the governor shall appoint a qualified person to serve in that office for the remainder of the term. If both the elected governor and the elected lieutenant governor become unable to serve in the office of governor, succession to the respective offices shall be as provided by law for the period until the next general election. Then, a governor and lieutenant governor shall be elected to fill the remainder of the original term.

  2. If the office of secretary of state, attorney general, auditor, or superintendent of public instruction becomes vacant by death, resignation, or disability as determined by law, the governor shall appoint a qualified person to serve in that office until the next general election and until a successor is elected and qualified. The person elected to fill a vacancy shall hold the office until the expiration of the term for which his predecessor was elected.

Although the governor must appoint someone to serve the remainder of the lieutenant governor’s term, there’s nothing in the constitution to prevent the governor from waiting to make the appointment on the last day of the term. Nor is there any penalty for not appointing a new lieutenant governor. Presumably a first term governor who fails to fill a lieutenant governor vacancy could be impeached during his second term, but as a practical matter I suspect the only deterrent is the prospect of unfavorable publicity during the governor’s re-election campaign. And if a second term governor failed to appoint a replacement lieutenant governor, he’d probably get away with it, suffering only a bit of bad publicity.

The authors of the 1972 constitution evidently expected the governor could be trusted to make an expeditious appointment. I would amend the constitution to require making the appointment within 30 days, with automatic removal of the governor from office as the penalty for not meeting the deadline.