Senator-Governor Klobuchar and the Problem of the Received Wisdom
[This post is co-authored with Professor Seth Barrett Tillman.]
On November 3, 2026, U.S. Senator Amy Klobuchar (Minnesota-Democratic Party) was elected Governor of Minnesota. It is expected that, at some point, she will resign her U.S. senate seat, then take up the governor's position, and subsequently make a temporary appointment to fill her then-vacant senate seat. That dance of musical chairs happens from time-to-time. But some have also reported that Klobuchar must resign her senate seat. CBS News quoted political science professor David Schultz (Hamline University, Minnesota): "At some point she's going to have to step down as U.S. [S]enator." That might be true pragmatically—as a matter of politics. And sometimes, federal and state constitutional and statutory law bar dual-officeholding. Sometimes, but not all the time. In these circumstances, the law does not expressly bar dual-officeholding where, as here, the two positions are U.S. Senator and Minnesota Governor.
The U.S. Constitution's Incompatibility Clause (Article I, Section 6, Clause 2) bars U.S. Senators and Representatives from concurrently holding certain other federal positions. The position of governor is a state, not a federal position. So, this provision has no application here.
The Minnesota State Constitution has a similar provision (Article IV, Section 5). That provision bars Minnesota's state (not U.S.) Senators and Representatives from holding other state and federal positions. Klobuchar is not a state Senator; rather, she is a U.S. Senator. So, this provision has no application here.
The federal double-dipping statute, 5 United States Code Section 5533 bars drawing two salaries for two positions, where both positions are at the federal level. It has no application to state positions, e.g., governor. Moreover, it does not bar actual dual-officeholding; rather, it bars receiving two streams of full-time compensation or salary. Again, this provision has no application here.
Beyond these express provisions of positive law relating to incompatible offices, there are two common law doctrines, announced by state and federal courts, relating to incompatible offices. The more narrow doctrine prohibits one person holding two positions where one position supervises the other position or determines its compensation. Here, the two positions—U.S. Senator and Minnesota Governor—neither supervise one another, nor determine one another's compensation. So, this doctrine has no application here.
Finally, there is a more expansive common law doctrine relating to incompatible offices. This doctrine holds that, where as a practical matter, one person cannot carry out both sets of duties connected to two positions, the two positions are incompatible. It might be argued that a governor, particularly in an emergency, must reside within her state, and that a U.S. Senator, should generally be on hand, at short notice, to carry out Senate business. Given the physical distance between Minnesota and Washington, D.C., it is not entirely frivolous to suggest that this doctrine might act as a bar here. But the bar here is not distance, it is whether one can practically carry out both sets of duties. Governors frequently leave their states for short periods of time—even for vacations. That's allowable as long as they are within reach by telephone or video link, and as long as they can return quickly in the event of an emergency. Likewise, the U.S. Senate can choose to accommodate a Senator with responsibilities distant from D.C.—the Senate could allow participation in debate by video link, and it could allow remote voting, as long as the votes are reasonably authenticated. In other words, it is not a slam dunk that this expansive doctrine should apply on these facts, particularly given that this doctrine is merely a judicial creation lacking any foundation in both the U.S. Constitution and the Minnesota Constitution. More generally, we should not allow ad hoc judicial creations to supersede democratic elections and add to the qualifications and incompatibilities expressly set out in positive law.
Having one person hold two government positions—including state governor and U.S. Senator—is not a particularly good result. But the fact that a result is bad does not mean, without more, that that result is barred by our law. Not every bad thing is illegal; not every bad result is unconstitutional. And pretending the U.S. Constitution and Minnesota Constitution bar what we think is bad today elevates our intuition into legal duties only by undermining what the legal system actually commands. And if today, our intuition is vindicated, we might do well to remember that tomorrow, it might be someone else's intuition being vindicated and in ways that we might come to regret.
Among those who have considered this issue, I expect that many (and, perhaps, most) believe, as Professor Shultz believes, that Klobuchar must resign her senate seat before she becomes Minnesota's governor. That is, of course, the received wisdom. And that should tell you all you need to know about . . . the received wisdom.
[Seth Barrett Tillman, Associate Professor. Maynooth University School of Law and Criminology, Ireland. Scoil an Dlí agus na Coireolaíochta Ollscoil Mhá Nuad.]