Two important stories from last week were the hospitalization of U.S. Senator Mitch McConnell and the death of U.S. Senator Lindsey Graham. While both events are serious and sorrowful, what is interesting from the perspective of this column is how our Constitution addresses each situation.
We know what happens if a president dies or is incapacitated. Article II, Section 1 of the Constitution reads, “In Case of the Removal of the President from Office, or of his Death, Resignation, or Inability to discharge the Powers and Duties of the said Office, the Same shall devolve on the Vice President.” Later, in 1967, the 25th Amendment was ratified. It states, “Whenever the Vice President and a majority of either the principal officers of the executive departments or of such other body as Congress may by law provide, transmit to the President pro tempore of the Senate and the Speaker of the House of Representatives their written declaration that the President is unable to discharge the powers and duties of his office, the Vice President shall immediately assume the powers and duties of the office as Acting President.”
As we have seen several times, when a president dies, the vice president becomes the next president and the government continues to run smoothly. We never have seen a president removed because of incapacitation, but there are constitutional rules in place to do so.
The rules for senators are very different from those for the president. According to the 17th Amendment, “When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.”
Only five states today hold a special election to choose a temporary senator: Kentucky, North Dakota, Oregon, Rhode Island, and Wisconsin. Because of the cost and difficulty of holding a special election, the remaining 45 states allow the governor to appoint a replacement. In most states, the governor can choose anyone who is constitutionally qualified, but in 10 states the temporary senator must come from the same political party as the senator being replaced. In South Carolina, the governor appointed Senator Graham’s sister to be his replacement.
Yet there is no constitutional equivalent of the 25th Amendment for members of Congress. A governor cannot appoint a temporary senator if a senator is incapacitated. The governor of Kentucky cannot do the same thing with Senator McConnell, even if, as was originally speculated, he were brain dead. He would remain a senator whether he could perform his duties or not.
Article I, Section 5 of the Constitution does provide a way to remove a member of Congress. It allows two-thirds of either house to vote to expel one of its members, but this has never been done due to incapacitation, only for misconduct. Historically, this constitutional gap is perhaps best illustrated by the case of Senator Karl Mundt.
Mundt served as a Republican representative and later senator from South Dakota from 1939 to 1973. As the ranking member of the Committee on Government Operations and its Permanent Subcommittee on Investigations, Mundt worked to expose communists in the government. As an ally of Senator Joseph McCarthy, Mundt chaired the Senate investigations into the Army during the McCarthy hearings.
In 1969, Mundt suffered a stroke that made it impossible for him to attend sessions of Congress during the last three years of his term. During this time, many called for his resignation, but his wife refused. She took a page from Edith Wilson, who effectively managed many of President Woodrow Wilson’s affairs after his debilitating stroke during the final months of his presidency. In 1972, Republican senators voted to remove Mundt from his committee assignments, but they did not remove him from the Senate.
Like Mundt, Senator Tim Johnson of South Dakota suffered a life-threatening brain hemorrhage in 2006 that left him unable to perform his Senate duties for several months. Although he was absent during his recovery, he also could not be removed from office. Johnson eventually returned to active service and completed his term, further illustrating that senators remain in office.
There is another example that is interesting and a bit different. Democratic Representative Gladys Noon Spellman served in the House from 1975 to 1981. In 1980, she suffered a severe heart attack that left her in a coma, but because of her name recognition she still won reelection. The difference in her case was that she was unable to take the oath of office for the new Congress. As a result, the House declared her seat vacant in 1981. Unlike Mundt and Johnson, who had already been sworn into office, Spellman had not begun her new term, making her case a rare exception.
These cases highlight a constitutional gap regarding lawmakers who become permanently incapacitated while in office. Unlike the president, the Constitution provides no process for removing a senator solely because he or she is unable to perform the duties of the office. Unless a senator resigns, dies, is expelled for misconduct, or reaches the end of the term, the seat remains occupied even if the senator is permanently unable to serve.
James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.
