A Proposed Constitutional Amendment on the Selection of Pennsylvania’s Lieutenant Governor Would Violate the Separation of Powers

           A proposed constitutional amendment to the process of choosing Pennsylvania’s Lieutenant Governor is based on a misunderstanding of the federal process that it is inspired by as a model, and, therefore, draws a false parallel to it.  It thus would violate the Separation of Powers by constitutionally discouraging the Lieutenant Governor, whose office is primarily legislative, from being a check on the Governor, as intended by the Framers of the Commonwealth’s Constitution, by effectively making the holder of the office a deputy governor. 

In addition, the proposed amendment to Pennsylvania’s Constitution would recognize political parties under the Commonwealth’s Constitution and mandate a constitutional role for them, thereby making them agents of the state and thus possibly subjecting them to relevant rules for public officials and meetings, while subordinating the parties to their gubernatorial nominees. 

The proposed constitutional amendment is intended to eliminate the possibility of disagreement between the Governor and Lieutenant Governor by giving the gubernatorial nominee of political parties a constitutional role in choosing a running mate.  Governors and Lieutenant Governors are elected on the same ballot under the Pennsylvania Constitution.  Gubernatorial candidates in primary elections are free to suggest a preference for a running mate among candidate for the nomination for Lieutenant Governor, but most do not, leaving the decision out of humility or deference to the party’s primary election voters.  The proposal amendment is intended to remedy the supposed problem of disagreements between the two officeholders by taking the federal model for choosing presidential and vice presidential tickets.  However, there are differences both in the way parties select their nominees for President and Vice President and the way they are elected to office to the way parties would select their nominee for Lieutenant Governor and the way the federal officeholders are elected versus the state officeholders, beyond the superficial similarity of their names appearing on ballots together in the General Election.

The proposed amendment empowers the gubernatorial nominee to select the party’s nominee for Lieutenant Governor, with the approval of the state party, but presidential nominees do not select their party’s vice presidential nominees.  Despite the recent practice of presidential nominees suggesting their own running mates, the actual nomination for the party’s nomination for Vice President is made by the party’s Convention Delegates.  The presidential nominee is free to decline to suggest a vice presidential nominee, while the party is free at its convention to select a different nominee.  The proposed amendment to the Pennsylvania Constitution would mandate a party’s gubernatorial nominee to make the nomination and the state party, which would be under constitutional and political pressure to acquiesce to its gubernatorial nominee’s choice, would not be free to nominate a different candidate.

The federal model for the election of the President and Vice President is not applicable to the state model of the election of Governor and Lieutenant Governor, despite the appearance of their names on the same General Election ballot.  The President and Vice President are not elected together in a popular election, but are elected by the Electoral College in separate ballots for each office.  Furthermore, if the Electors do not reach a majority, the President and Vice President are elected by separate chambers of Congress.  The House of Representatives elects the President and the Senate the Vice President.  The reason the offices are elected separately is because of the principle of the Separation of Powers.  The President is the Chief Executive, the head of the Executive Branch while the Vice President’s only constitutional duty is as the President of the Senate, which is upper chamber of the legislature.  As such, the Vice President is strictly one of the leaders of the Legislative Branch, the current practice notwithstanding of Vice Presidents acting as deputy presidents.  The Branches were intended by the Framers of the Constitution to check and balance each other.  The Vice President was not envisioned as a sycophant to the President, but as a check on the President. 

Similarly, the Pennsylvania Constitution grants only two powers to the Lieutenant Governor: the legislative role of presiding over the Senate and the quasi-executive role of serving as the Chairman of the Board of Pardons, the current practice of Lieutenant Governors serving as deputy governors notwithstanding.  As such, the Lieutenant Governor is, as one of the leaders of the Legislative Branch, intended to serves as a check on the Governor, who is the head of the Executive Branch, not as a sycophant to the Chief Executive.  

It would not have been reasonable for the federal or state Framers of their respective Constitutions to have created an office whereby the occupant is not expected to exercise independent judgment in the best interests of the government and the people, but instead to serve only the Chief Executive.  If the Framers wanted some kind of a deputy chief executive, they would not have given the legislative power to preside over the upper chamber of the legislature to that officeholder.  They could have given an affirmative tie-breaking vote to the Chief Executive without any need for creating a President of the Senate subordinate to the Chief Executive.

The proposed constitutional amendment would expressly recognize political parties for the first time in the Commonwealth’s Constitution.  It not only legitimizes them constitutionally, but establishes them as agents of the state who are mandated to perform a constitutional role.  As such, the party officials and their meetings could be subject to the same state laws that govern public officials and their deliberations and meetings.  Moreover, the amendment would constitutionally subordinate the party to its gubernatorial nominee because it can only accept or reject its gubernatorial nominee’s choice, which it would be under pressure to accept, without the ability to make alternate nominations.  It is neither appropriate for the Constitution to elevate parties or to interfere with them internally.  It is worth considering that the amendment is being proposed and voted on by Legislators who are all members of major political parties.  It was the influence of parties that has turned the offices of Vice President and the Lieutenant Governor into something not intended by the Framers, which the proposed amendment would exacerbate. 

It is also unclear if write in votes of different candidates for Lieutenant Governor would be allowed under this proposed constitutional amendment. 

The proposed amendment not only violates the principle of the Separation of Powers, but does nothing to address an even more flagrant violation of that doctrine inherent in the Pennsylvania Constitution in the succession clause, whereby the President pro tempore of the Senate can act not only as Lieutenant Governor, but also as Governor.  

There are other ways to remedy the supposed problem than this proposed constitutional amendment is intended to address, such as by making the Lieutenant Governor a deputy governor and stripping the Lieutenant Governor of the role of President of the Senate, or by electing the President of the Senate separately in order to guarantee better that the officeholder would be a constitutional check on the Chief Executive in keeping with the principle of the Separation of Powers.