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Bipartisan Group Calls for End to Senate Appointments

By Ben Pershing

A motley crew of Republican and Democratic lawmakers announced Wednesday that they are backing a constitutional amendment requiring special elections be held to fill all Senate vacancies, putting an end to the gubernatorial appointments that have sparked such controversy in recent months.

Unusually for a constitutional amendment, the proposal has attracted a bipartisan, bicameral group of supporters. Joining forces at Wednesday's press conference were two Democrats -- Sen. Russ Feingold (Wis.) and House Judiciary Chairman John Conyers (Mich.) -- as well as three Republicans -- Judiciary ranking member Lamar Smith (Texas), Rules ranking member David Dreier (Calif.) and Rep. James Sensenbrenner (Wis.). The assembled members made repeated, joking "strange bedfellows" references, but they also expressed hope that the diversity of their movement boded well for its chances of success.

"We have, I think, an opportunity to gain great support ... and build great bipartisanship for this," Dreier said.

Dreier said the time for this amendment was now, after a senator was elected president for the first time in four decades, which was followed by "a great deal of respect on the part of that new president for the talent of his colleagues."

President Obama decided to pick fellow senators for the vice presidency and three Cabinet posts, resulting in a total of five vacancies that were filled by appointment. The replacement of Obama, in particular, has already become legendary for its controversy; Illinois Gov. Rod Blagojevich (D) was accused by federal prosecutors of trying to sell the appointment and was eventually impeached, but only after he went ahead and named Roland Burris (D) to fill the seat.

"These appointments ... have driven home that these decisions should be in the people's hands," Feingold said, though he acknowledged that the appointed senators themselves might hesitate to back the amendment, since it could suggest their own appointments were somehow tainted.

Smith called the very existence of gubernatorial appointments of senators an "unintended constitutional consequence" of the 17th amendment. Ratified in 1913, the amendment provided for direct election of senators -- who had previously been chosen by state legislatures -- but also included language allowing states to give their governors the authority to make "temporary appointments" to vacant seats until elections could be held. Currently, just four states require special elections to fill vacancies without appointments first -- Wisconsin, Oregon, Oklahoma and Massachusetts.

Dreier acknowledged that "it is very difficult to amend the Constitution" -- the 27th amendment was ratified more than 16 years ago -- but expressed his hope, as did the other members, that this issue might garner enough bipartisan support to actually have a chance. The Senate version, which Feingold introduced last month, currently has two co-sponsors -- Sens. John McCain (R-Ariz.) and Mark Begich (D-Alaska).

Conyers and Feingold both said they planned to hold hearings in their respective committees, and might even consider having a joint House-Senate hearing on the topic.

By Ben Pershing  |  February 12, 2009; 6:00 AM ET
Categories:  Blagojevich , Senate  
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It's not an unintended consequence of the 17th Amendment, it's a direct consequernce of Article 5, which forbids amending the Constitution in the following circumstance: "that no state, without its consent, shall be deprived of its equal suffrage in the Senate." Elections take time, and can leave a state without equal suffrage for an extended period. Thus, the gubernatorial appointments are still necessary for the intermediate period until an election can be held at least as an option to satisfy this requirement (for instance, Minnesota is currently without equal suffrage, but that is by their choice not to seat someone in the interim, but Gov Pawlenty maintains the option), unless the amendment recieves the unanimous support, rather than just 3/4 support, of the states.

Posted by: kreuz_missile | February 12, 2009 8:10 AM | Report abuse

Perhaps the key is the phrase "until elections could be held". Can the affected states really not manage to hold the elections until 2010?

Posted by: TomJ2 | February 12, 2009 9:11 AM | Report abuse

And who is going to pay for these special elections? They don't come cheap!

Posted by: Rich393 | February 12, 2009 9:55 AM | Report abuse

The 17th Amendment should be left alone. It should be up to the individual states how they select a replacement for a Senator who dies or resigns before his term expires. One idiot in Illinois should not cause the other 49 States to change the system. Special elections are costly and the turnout is generally poor which places the Senate Seat at the mercy of the hardline fringe elements of each party who always vote rather than the whole electorate, which votes most heavily in general elections. Most states permit the Governor to appoint the replacement who serves until the next general election. That system has worked well in most instances. GhostofElvis.

Posted by: ghostofelvis | February 12, 2009 10:59 AM | Report abuse

The Legislatures of the State merely have to act for a special election if they do not want the executive of the state to fill the appointment. The issue is not that the Constitution needs fixing in this area, instead the issue is that in some states, such as Illinois, the legislature is so rigged by districting that the legislature does not act in the interest of the people or state. The citizens of the state no longer have real control over the legislature because redistricting has diminished the power of the peoples vote.
"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."

Posted by: win1 | February 12, 2009 11:30 AM | Report abuse

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