Forward Looking: Potential Menendez Resignation Could Add to GOP Majority

Sen. Bob Menendez, D-N.J., speaks to reporters during a news conference in Newark, N.J. on Friday, March 6, 2015. A person familiar with a federal investigation says the Justice Department is expected to bring criminal charges against the New Jersey Democrat in the coming weeks. Menendez says that he has …
AP Photo/John Minchillo
Washington, DC

The Justice Department announcement that it will bring criminal corruption charges against New Jersey Sen. Robert Menendez could, at least temporarily, add to the GOP Majority in the U.S. Senate. Menendez says he won’t leave.

But if he is forced to resign, GOP Gov. Chris Christie would appoint a successor until the next statewide election. History, not to mention presidential politics, suggest Christie would likely appoint a Republican.

While some have questioned the DOJ’s action against Sen. Menendez, an outspoken critic of the Obama Administration’s policies in Iran and Cuba, the seriousness of the criminal charges cannot be overstated.

Worse for the Senator, the alleged corruption is easily understood; he allegedly used his office and prerogatives to assist a major political donor. That this donor also allegedly committed Medicare fraud only adds to the damning narrative at the heart of the Menendez affair.

In the immediate wake of the DOJ announcement, Sen. Menendez spoke to the press, proclaimed his innocence and vowed that he “wasn’t going anywhere.” While such posturing isn’t uncommon at the dawn of a public scandal, the details of his alleged misdeeds could make his position untenable. As specifics of the allegations no doubt leak out over the coming days, Menendez may be forced to rethink his defiance.

To a point, the media may try to assist Menendez by ignoring or “back-paging” the details of his alleged crimes. In recent weeks, it was revealed that the head of the Democrat National Committee may have offered to change her position on a major issue in exchange for political support from a major Democrat donor. While that offer likely was not illegal, it was an embarrassing scandal in its own right for the party. That story has largely disappeared from the press.

Menendez may be hoping that the media will default to its normal behavior of obscuring or minimizing political scandals that befall Democrats. If other Democrat politicians are drawn by the media and the public into the story, however, the pressure on Menendez could become intense. Politicians, of either party, will afford a member the opportunity to handle a scandal only up until the point that the fallout reverberates onto them. At that time, political survival trumps party allegiance.

To the extent that DOJ’s targeting of Menendez is motivated by his recent criticism of Administration policies, the pressure on him from other Democrats will likely intensify.

New Jersey is one of 36 states where the Governor appoints a successor to a vacancy, who serves until the next scheduled statewide election. The Garden State is also one of a small handful of states where there are statewide elections in odd years. The next statewide election is this November, with the primary election scheduled for June 2nd.

If Menendez resigns his seat within the next two months, Gov. Christie would appoint a successor who would serve until the end of the year. The winner of a special election in November would then serve the remainder of Menendez’s term, which expires at the end of 2018.

If Menendez resigns after May 2nd, however, a successor appointed by Christie would serve until the end of 2016, with the winner of the general election that year serving the remaining two years of the term.

Any individual appointed by Christie to replace Menendez could run in the general to win the seat and continue serving.

This being New Jersey, however, a simple application of the law isn’t necessarily how a resignation would play out. There is some confusion in the law about whether the “next statewide” election would mean the upcoming election for state legislative seats in 2015 or the election in 2016 that includes federal offices.

When N.J. Sen. Frank Lautenberg died in early 2013, Gov. Christie decided to convene a special election in October of that year, a few weeks before the next statewide election. This scheduling didn’t otherwise exist in New Jersey law, although that state gives governors extraordinary power.

Democrats in the state charged that Christie set a special election in October to avoid it complicating his own campaign for reelection in November that year. The clearer alternative to a special, seperate election was scheduling the Senate election for November 2014, but that was deemed politically to be too long of a time for an appointed Senator.

Should Menendez resign, Christie may find himself forced to follow his own precedent and separately schedule an election to fill the vacancy. The scrutiny of his decision will be far more intense as he prepares his expected campaign for president.

However Christie manages a special election, it is probable that he would appoint a Republican to the vacancy. In 2013, he blunted some of the Democrat criticism of his actions by appointing a caretaker who wouldn’t contest the seat in the special election. With the eyes of national primary voters on him this year, it is more likely he would appoint an active Republican who would contest the seat. Primary voters may not want to elevate to the party’s top position a politician who chooses not to contest a U.S. Senate seat, however long the odds of Republicans face in winning the seat.

Profiles in courage do not ordinarily begin with a unilateral surrender.

So, the Menendez saga presents a significant challenge for Christie, who has long been in the sites of national Democrats. The special election he arranged in 2013 was, at best, a political audible, with little basis in New Jersey law. He got a pass from the press because he signaled the party wouldn’t really contest the seat. He won’t have that option this year. The press will certainly come to a new appreciation of New Jersey election law.

Menendez will naturally try to hold onto his seat. The news could easily be distracted by new bright, shiny objects and coverage of his alleged misdeeds could melt away. I wouldn’t count on that, though.

Menendez’s resignation would remove a vocal critic of two policies important to Obama’s perceived legacy. It would also present a political challenge for Chris Christie. That last fact may be too much for the press to ignore.