Before health concerns, Kentucky GOP protected McConnell’s seat

The U.S. Senate minority leader advocated for a change in how vacancies are filled.
U.S. Senate Minority Leader Mitch McConnell, (R-Ky.) center, returns to his press conference after the 81-year-old GOP leader froze at the microphones and became disoriented, at the Capitol in Washington, Wednesday, July 26, 2023. (AP Photo/J. Scott Applewhite)

U.S. Senate Minority Leader Mitch McConnell (R-Ky.) appeared to freeze during a press conference in his home state on Wednesday, renewing concern for the wellbeing of the longest-tenured party leader in Senate history — and raising the prospect that McConnell may not be able to serve out a term that ends in January 2027.

But McConnell, 81, has a reputation for thinking several moves ahead. And while staffers and advisers have downplayed or refused to discuss his health and his chances of finishing his seventh term in office, McConnell took steps years ago to protect his seat should he ever have to step down.

In most states, it is left to a governor to fill a vacancy in the U.S. Senate. Until 2021, that was the case in Kentucky, where Gov. Andy Beshear (D) holds the governorship — and where he would have held the authority to fill an empty Senate seat.

But that year, months after McConnell won re-election by a comfortable 19-point margin, the senator urged his allies in Frankfort to approve legislation making Kentucky one of the few states to place limits on how a governor fills a vacancy.

The law legislators approved that year requires the governor to fill a vacancy with a member of the same party as the seat’s previous occupant, from a list of three names selected by the previous occupant’s party.

“In the most recent election for that position, the state chose to pick the individual from that party, and it should be replaced by somebody from that party,” Senate President Robert Stivers (R), the bill’s chief sponsor, said at the time.

He pointed to the U.S. Constitution, which requires members of the House of Representatives to be elected by the people, even in case of a vacancy. The Constitution places no such limits on appointments to the Senate. For more than a century after the nation’s founding, state legislatures elected members of the U.S. Senate, until the 17th Amendment handed that power back to voters in 1913.

“A House seat goes to a special election and the vacancy is open until the special election.That is not what the federal constitution requires of us when there is a vacancy in the United States Senate,” Stivers said.

Republicans hold veto-proof majorities in both chambers of Kentucky’s legislature, and the measure passed largely along party lines. Beshear vetoed the measure, which he said “improperly and unconstitutionally restricts” his power.

“The purpose of the Seventeenth Amendment to the United States Constitution was to remove the power to select United States Senators from political party bosses,” Beshear wrote in his veto message. The law approved by the legislature “violates the very purpose of this amendment by returning that power to political parties in case of a vacancy.”

Beshear also argued the law is unconstitutional under Kentucky’s own constitution, which gives the governor the authority to appoint replacements to vacant statewide office.

The legislature easily overrode Beshear’s veto. But a lack of vacancies to fill has meant the law — and Beshear’s theories about its violations of the state and federal constitution — have not been tested in court.

Kentucky is one of 11 states that limit a governor’s authority in filling a vacancy. Seven of those states — Hawaii, Maryland, Montana, North Carolina, West Virginia and Wyoming, along with Kentucky — require the governor to choose from a list of the previous occupant’s party. Utah requires the governor to choose from a list of candidates submitted by the legislature, while Arizona and Oklahoma require the governor to choose a member of the previous occupant’s party without narrowing that choice to a specific list.

In Connecticut, the governor may only fill a vacancy if there is less than a year remaining in the departed senator’s term, and only with the two-thirds consent of the legislature.

State laws in Oregon, North Dakota, Wisconsin and Rhode Island preclude a governor from appointing anyone to fill a vacancy at all. Instead, voters have the chance to fill a vacancy through a special election.

The remaining 35 states allow a governor to select any temporary successor, with no restrictions.

Twenty-four seats in the U.S. Senate have become vacant at some point in the last two decades, and only two of those vacancies — caused by the deaths of then-Sen. Craig Thomas (R-Wyo.) and Frank Lautenberg (D-N.J.) — have taken place in states where the governor was a member of the opposite party.

In Wyoming, then-Gov. Dave Freudenthal (D) was handed a list of three potential replacements by the state Republican Party. Freudenthal chose Sen. John Barasso (R) over Cynthia Lummis, a fellow Republican who is now Barasso’s colleague in the Senate.

In New Jersey, then-Gov. Chris Christie (R) had the authority to appoint any candidate he chose to replace Lautenberg. Christie turned to Jeffrey Chiesa (R), whom he had previously appointed to serve as state attorney general.

Chiesa served just 146 days in office before he was replaced in a special election by Sen. Cory Booker (D).