Sen. Ted Kennedy has asked Massachusetts legislative leaders to change state law, which currently leaves a U.S. Senate seat vacant upon the death of a senator until a special election can be held. Kennedy, whose interest in this matter surely derives from his battle with brain cancer, would prefer that -- should a vacancy occur in the middle of a Senate term -- state law empower the governor to appoint a temporary replacement to serve until the special election.

As the New York Times story makes clear, Kennedy is concerned that his death and the months-long vacancy until the special election would leave Democrats down a vote, possibly when crucial votes will be taken on universal health care, which has been a passionate goal of his career. Kennedy's devotion to the cause, especially as he contemplates his own death, is touching.

But Republicans surely view Kennedy's request for a caretaker senator bill as an attempt to change the rules for partisan gain. And they're right. The current Massachusetts governor, Deval Patrick, is a Democrat and close friend of President Obama. He would use the opportunity to put a Democrat and an Obama ally into the vacancy.

The case for partisan motives becomes witheringly clear with this paragraph from the Times story:

"Until 2004, state law called for the governor to appoint a temporary replacement if a Senate seat became vacant. But when Sen. John Kerry, a Democrat, was running for president that year, the Democratic-controlled state legislature wanted to deny the governor at the time — Mitt Romney, a Republican — the power to name a successor if Mr. Kerry won."

The 2004 bill was vetoed by Romney, overridden on a party-line vote. The previous law, permitting temporary replacements, had been on the books for a century.

Sen. Kennedy strongly supported that 2004 bill, which puts him in a poor position to now claim that he is motivated to change the law back by, as he put it in a letter to legislative leaders, his belief that "it is vital for this Commonwealth to have two voices speaking for the needs of its citizens and two votes in the Senate during the approximately five months between a vacancy and an election.”

Rising above

Most of us, I suspect, want to believe in the possibility of politicians rising above partisanship and political opportunism, and there have been occasional sightings of this phenomenon in our history. But, at the risk of understatement, those "rising above" phenomena are not the norm. Reading about the Kennedy request, I was reminded of "A Magnificent Catastrophe," historian Edward Larson's recent book-length portrayal of the famous presidential election of 1800, in which Thomas Jefferson narrowly defeated the incumbent, John Adams, at a time when the Founding Fathers' naive hope that American politics could be organized without political parties was quickly disappearing.

"Magnificent Catastrophe" provides constant reminders that, to its practitioners, "all's fair in love and politics." Even when we are dealing with such demigods as Jefferson, Adams and Alexander Hamilton, both sides in this race employed bare-knuckled tactics. Jefferson was routinely denounced in the pro-Adams newspapers as an atheist and a radical. Adams was characterized as a monarchist.

But the particular tactical move that came to mind from the Kennedy request was this:

Back then, the Electoral College system of choosing a president was a new-fangled contraption. Considering that the first two presidential election had been unanimous affairs in favor of George Washington, sharp political operators hadn't yet found all the angles. The Constitution left it entirely up to the state legislatures how presidential electors should be chosen. (As far as the sacred constitutional language goes, this is still the case. The Constitution does not require that states even hold a popular election in connection with the presidency. You can look it up.)

Back in those early cycles, some states held popular votes in presidential election years, but others did not. Some states adopted proportional methods of awarding electoral votes (such as electing the presidential electors on a district-by-district basis, in which case the state's electoral votes would likely be split between the tickets). Others already used what has become the modern norm -- a winner-take all rule, so that the party that had a statewide majority or the party that controlled the legislature would choose a slate of their fellow partisans, who would vote a straight-party ticket.

Anyway the point is that the very sharp operators on behalf of Jefferson's party, then known as Democratic-Republicans, and those on behalf of the Adams-Hamilton party, known as the Federalists, were each looking to exploit any change in partisan control of any legislative houses that might enable them, by changing the state law on apportioning electoral votes, to gain advantage for their party.

In Pennsylvania and Maryland and other key swing states of that era, they did exactly that, changing, or trying to change, the rules for partisan advantage.

And both sides justified their sharp tactics the same way I suppose those who favor Ted Kennedy's suggestion would justify it. It wouldn't be illegal or unconstitutional for Massachusetts to change (or change back) its law for Senate vacancies. It would just be aggressively seeking partisan advantage at the expense of what might be a more elevated few of political fair play. If universal health insurance coverage is at stake (this justification would hold), the indignity of throwing a few sharp elbows is a small price to pay. And you know that the other side would do it if they could.

Hamilton's reasoning

In fact, in the 1800 instance, Hamilton, whose overall role in these decades entitles to him be listed near the most important and influential of the founders, said as much directly. Hamilton (although he was simultaneously scheming to stab his own parties candidate, Adams, in the back) was the chief Federalist strategist and was urging Maryland Federalists to back a law changing Maryland's method of choosing electors from election by the people to appointment by the legislators. Of course, he believed such a change would help the Federalist ticket. (In the end, it failed and backfired.) One Maryland Federalist had qualms about the idea and wrote to Hamilton, who replied thus:

"I am aware of strong objections to the measure, but if it be true, as I suppose, that our opponents aim at revolution and employ all means to secure success, the contest must be unequal if we not only refrain from unconstitutional and criminal measures, but even from such as may offend against the routine of strict decorum."

By the way, in case you missed it, the exact same idea -- to fiddle with the Electoral College system for partisan gain -- was attempted again as recently as last year. California Republicans started a drive to take that state out of the winner-take-all system that most states follow (and which was sure to deliver all of California's 55 electoral votes to Obama). The idea was to seek a referendum that would change California to a system in which each congressional district could independently elect one elector. That would, of course, have probably given Republican nominee John McCain between 19 and 22 of California's electoral votes.

There is a principled argument for such a change (a good argument, in my view, if all states were adopting the plan). Just as there is a principled argument for changing the Massachusetts law. But principle had little to do with it in either case.