Hume, Borger, Cavuto falsely reported Sen. Johnson would be replaced if "incapacitated"

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Fox News Washington bureau managing editor Brit Hume, CBS national political correspondent Gloria Borger, and Fox News host Neil Cavuto reported that if Sen. Tim Johnson (D-SD), who was hospitalized on December 13 with intracerebral bleeding and underwent brain surgery, were "incapacitated" or "unable to serve in any way," or his condition were to "worsen," then South Dakota Gov. Michael Rounds (R) would appoint a replacement to take Johnson's seat until the 2008 general election. In fact, the U.S. Constitution states that the governor may appoint a replacement senator only if Johnson's seat becomes vacant and, in contrast with provisions concerning the presidency, includes no provision allowing officials to declare that a senator is incapable of serving. Indeed, several senators have remained in office despite significant infirmities.

The 17th Amendment to the U.S. Constitution states: "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." The Constitution does not address the ability of a Senator to carry out his or her duties. In contrast, the 25th Amendment deals specifically with "Presidential Disability" and provides a mechanism for people other than the president to determine that the president is "unable to discharge the powers and duties of his office" and appoint a replacement without the president's permission.

South Dakota state law echoes the 17th Amendment: "Pursuant to the Seventeenth Amendment to the Constitution of the United States of America, the Governor may fill by temporary appointment, until a special election is held pursuant to this chapter, vacancies in the office of senator in the Senate of the United States."

As USA Today reported on December 14, there exists no legal precedent for declaring a senator unable to serve, and senators have continued to serve in spite of infirmities:

Political scientist David Brady of Stanford University's Hoover Institution said history is filled with examples of lawmakers remaining in office no matter how severe their disabilities. Brady recalled Sen. Clair Engle of California [D], unable to speak because of a brain tumor, casting an "aye" vote for the 1964 Civil Rights Act by pointing to his eye.

More recently, 100-year-old Strom Thurmond [R] completed his last term as a South Carolina senator while living at Walter Reed Army Hospital.

There is no legal provision for declaring a member of Congress too infirm to serve, Brady said.

"The Constitution also does not provide an effective way for filling temporary vacancies that occur when members are incapacitated," said a May 2003 report by a government panel convened to determine how Congress would continue in the wake of a terrorist attack. offered other "examples of a senator being incapacitated for years and remaining in office":

Most recently, Sen. Karl Mundt [R] (coincidentally, also from South Dakota) suffered a stroke in 1969 and was incapacitated, but he refused to step down. He remained in office until January 1973, when his term expired. Mundt was pressured repeatedly to step down during his illness, but he demanded that the governor promise to appoint his wife. The governor refused, and Mundt remained in office.

Another example was Sen. Carter Glass, D-Va. Glass had a heart condition that prevented him from working for most of his last term after his re-election in 1942. Yet Glass refused to resign, and finally died of congestive heart failure in May 1946, in his apartment at the Mayflower Hotel in Washington.

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