VACANY IN THE OFFICE OF LIEUTENANT GOVERNOR: TIME FOR CONSTITUTIONAL CHANGE

G. Terry Madonna, Center for Politics & Public Affairs, May,1992.

Governor Robert P. Casey's search for an interim United States Senator brought to light a genuine weakness in the Pennsylvania state constitution, a shortcoming in the way a vacancy in the office of Lieutenant Governor is filled. Article 4, Section 14, of the state constitution requires in the event of a vacancy that the President pro tempore of the Senate become Lieutenant Governor.
The practice of elevating the pro tem has deep historic roots reaching back to the 1790 constitution, when the "speaker of the senate exercised the office of governor" in case of death, resignation or removal. Neither the 1790 nor 1838 constitutions provided for the office of Lieutenant Governor. The office of Lieutenant Governor was created in the 1874 constitution, which contained a vacancy provision in which the "powers, duties and emoluments" thereof devolved upon the President pro tem of Senate. In the 1968 constitutional reforms, another change required the pro tem to succeed to the office itself.

The current vacancy process is flawed in at least two respects:

(1) it allows for the Lieutenant Governor to be from a different party than the Governor. Since

1968 it has been the clear constitutional intention that the Governor and Lieutenant Governor

be from the same party, when a constitutional amendment required each elector to cast one vote

for both offices.

(2) it provides for a legislator to assume a position in the executive branch without an

intervening election or the opportunity of the Governor to provide a replacement. This brings

into question the principle of separation of powers and the need to maintain the independence

and autonomy of both the executive and legislative branches.
A major corrective step would include amending the constitution to allow for an appointed Lieutenant Governor under a process similar to that employed in the 25th Amendment of the federal constitution.
(1) The Governor would nominate a Lieutenant Governor.

(2) The nominee would take office upon confirmation by a majority vote of both houses of

the legislature.

(3) Each chamber would have thirty days to reject the nominee, failure to reject would

result in de facto confirmation.
An important a priori assumption should prevail: the Governor has the right to choose a Lieutenant Governor whose politics and philosophy are consistent with his/her own. But both chambers should be part of the confirmation process because no electoral choice was ascertained for an appointed Lieutenant Governor.
The major advantage of the proposed change is that it provides for accountability and shared responsibility in the selection process. While emphasizing constitutional and procedural values at the expense of electoral concerns, it provides for an orderly and politically sensible way to fill the vacancy. A legislative consensus would provide support for the nomination and add legitimacy to it, while at the same time the thirty day requirement for action would prevent the legislature from delaying unnecessarily any confirmation.

As you may recall, the appointment provisions of the 25th Amendment were applied in 1973 for the first time, less than a decade after its enactment. Suddenly in 1973, Vice-President Spiro Agnew resigned from the vice presidency after he admitted evading payment of federal income taxes, and House Republican Leader Gerald R. Ford was appointed by President Nixon and confirmed under the new amendment. After his elevation to the Presidency following Nixon's resignation, President Ford appointed Nelson Rockefeller to the Vice Presidency. The 25th Amendment has worked reasonably well, and there has been no serious effort to modify the appointment section of it.

Additionally, there remains a potentially unresolved constitutional problem surrounding the issue of whether the President pro tempore retains his/her Senate seat upon becoming Lieutenant Governor. Article 4, Section 14, places the pro tem in the line of gubernatorial succession, and indicates in that eventuality the pro tem's Senate seat be filled by an election "as any other vacancy in the Senate". The constitution is silent on whether the pro tem gives up his/her seat upon assumption of the Lieutenant Governorship, however. Article 4, Section 6, of the constitution states "No member of Congress or person holding any office (except of attorney-at-law or in the National Guard or in a reserve component of the armed forces of the United States) under the United States or this Commonwealth shall exercise the office of Governor, Lieutenant Governor or Attorney General." It would appear that holding two offices such as Lieutenant Governor and State Senator would be unconstitutional, but a serious ambiguity exists in constitutional language that should be corrected to avoid constitutional challenge in the future.