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Should All Senators Be Elected?

By Ben Pershing

Four months after a presidential election that prompted the appointment of four new Senators and a host of related controversies, two congressional committees gathered this morning to mull whether the Constitution should be amended to prevent history from repeating itself.

In a rare joint session, the Constitution subcommittees of the House and Senate Judiciary panels met to take testimony on a proposed constitutional amendment that would end the practice of allowing governors to fill vacant Senate seats and instead require that all such openings be filled via election.

Sen. Russell Feingold (D-Wis.), the chairman of the subcommittee and original sponsor of the amendment, said the change was necessary to fix "a constitutional anachronism" that is "a problem for our system of democracy."

"I believe that those who want to be a U.S. Senator should have to make their case to the people whom they want to represent, not just the occupant of the governor's mansion," Feingold said.

The 17th amendment, ratified in 1913, 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 were held. Currently, just four states require special elections to fill vacancies without appointments first -- Wisconsin, Oregon, Oklahoma and Massachusetts.

As the Congressional Research Service puts it, "The presidential election of 2008 resulted, directly and indirectly, in the highest number of Senate vacancies associated with a presidential transition period in more than 60 years." Governors were called upon to fill vacant Senate seats in four states - Colorado, Delaware, Illinois and New York - and would have done in New Hampshire as well had Sen. Judd Gregg (R-N.H.) not backed out of the chance to be Commerce secretary.

The scramble to fill the Illinois seat vacated by President Obama was the primary impetus for the movement to end gubernatorial appointments, as Gov. Rod Blagojevich (D) was accused of trying to sell Obama's seat in exchange for favors and campaign contributions. Blagojevich was eventually impeached and booted from office, but not before he sparked an uproar by naming Roland Burris (D) to the seat.

To a lesser extent, the other appointments were also controversial, particularly in New York, where Gov. David Paterson (D) took heat for appointing then-Rep. Kirsten Gillibrand (D) to fill the seat vacated by current Secretary of State Hillary Clinton, but only after Caroline Kennedy made a very public bid for the position.

Witnesses and lawmakers at today's session were well-aware of the recent history. Rep. James Sensenbrenner (R-Wis.) called the current structure "not only undemocratic but prone to abuse," and Bob Edgar, the president and CEO of Common Cause, said that the system "has proven to be broken."

Rep. David Dreier (R-Calif.), one of the original co-sponsors of the amendment, said that he has a long history of opposing most such efforts to alter the Constitution. But he supports this one because "I really see what we're doing here as a perfecting amendment," designed to plug a perhaps unintended loophole in the 17th amendment.

But while no one was exactly complimentary of the current system, there was little unanimity in the room on how to fix it.

Rep. Jerrold Nadler (D-N.Y.) worried that, particularly in expensive states like California and New York, a short timeframe for a special election would make it nearly impossible for a non-wealthy candidate to raise enough cash to be competitive. The proposal, Nadler feared, "might tend to make the Senate, more than it is already, a body of millionaires and celebrities."

Matthew Spalding, the director of the B.Kenneth Simon Center for American Studies at the Heritage Foundation, argued that leaving Senate seats vacant while special elections were prepared would be unfair to those states with openings, which would be at a temporary disadvantage in the chamber.

And Spalding sought to put the Blagojevich case in perspective, pointing out that there have been 184 Senate appointments since the 17th amendment was ratified, and only this one documented case of alleged corruption. "This is neither a pattern of corruption nor a crisis of constitutional proportions," he said.

Rep. Louis Gohmert (R-Texas) made a similar point: "Should we let one bad governor in Illinois make us change everything?"

Another critic of the proposal, conservative columnist George Will, was not present today but had his name invoked during the hearing. Will wrote last month that Feingold was perpetrating "vandalism against the Constitution" with this amendment. He argued that the framers did not intend for the Senate to be as directly responsive to the people as the House was, and that the plan would further erode states' rights by robbing them of the ability to decide on their own how to fill senatorial vacancies.

But is that the choice: Pass a constitutional amendment, or do nothing at all?

There was a potential compromise outlined at the hearing by freshman Rep. Aaron Schock (R-Ill.), who has already introduced it in the form of the Ethical and Legal Elections for Congressional Transitions (ELECT) Act. His measure would change existing law, not amend the constitution, by requiring states to hold an election to fill an open senate seat within 90 days of the vacancy. But it would leave in place the governor's ability to appoint a temporary senator for those 90 days.

"This is a simple alternative," Schock said, that will "get us to where we want to go much quicker and cleaner" than a constitutional amendment.

It is not a sure thing that Schock's bill would be deemed constitutional if it were tested in the courts. But at least one expert present today, University of California, Davis law professor Vikram David Amar, said he thought it would be "constitutionally permissible."

By Ben Pershing  |  March 11, 2009; 3:15 PM ET
Categories:  Blagojevich , House , Senate  
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The system may be imperfect, but it works.

Posted by: Computer_Forensics_Expert_Computer_Expert_Witness | March 11, 2009 4:04 PM | Report abuse

The simpler answer is to repeal the 17th amendment "...and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies."

Once again the Founders thought it through quite well--only subsequent tinkering, i.e., the 17th amendment, has made things complex and uneven.

Most state legislatures meet in the winter/spring of the new year, during which senate vacancies temporarily filled by governors would be filled by the state legislatures in relatively short order. In the case of Roland Burris, the Illinois state legislature was already in session when Blogo made the appointment. Under the original Constitution the Illinois State legislature could have impeached and convicted Blogo one week, and appointed a US senator the next.

Posted by: Flavius2 | March 11, 2009 4:08 PM | Report abuse

Would would like for Senators and Congressmen and women to have Term Limits of 12 years with two 6 year terms.

We need new faces and this should not be a life time position. Too many friends and connections to make proper decisions. It's up to us to make this happen.

Posted by: MsRita | March 11, 2009 4:31 PM | Report abuse

There needs to be an election. The current system gives too much power to Governors who may be tempted to put their personal concerns/issues in front of their states. We need more politicians to work towards ending global poverty!

The Borgen Project has some good info on the cost of addressing global poverty.

$30 billion: Annual shortfall to end world hunger.
$550 billion: U.S. Defense budget

Posted by: atsegga | March 11, 2009 4:40 PM | Report abuse

The reason that senators need to cram spending bills full of earmarks that benefit only their state and not the country as a whole is that they have to face the electorate. This creates the problem that James I and Chas. I had with the English parliament in the early 1600s; you call a parliament to raise money and then they become more trouble than they are worth, spending all their time discussing draining a certain swamp back home, or beaver management; parliament became crippled and ineffective. Charles I's solution was to not have parliaments (worked for a while, but not good in the long run). US Presidents have and will increasingly, resort to accruing more and more power, as did Bush. This cannot be good in the long run either. The solutions are either don't elect senators at all, so they DON'T have to bribe to the local electorate by earmarks, or increase party discipline, giving party leaders more control over the members so that they don't have to bribe senators of small states with big earmark checks so that big states can get funding for, say, the car industry or the whole country gets health care.
PS. I am not that John Edwards

Posted by: johnedwards1 | March 11, 2009 4:43 PM | Report abuse

Passed by Congress May 13, 1912. Ratified April 8, 1913.

Note: Article I, section 3, of the Constitution was modified by the 17th amendment.

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

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.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

We can change this since congress is the one that passed this in first place,

Could not locate to admendment were this became a lifelong position.

Posted by: MsRita | March 11, 2009 4:43 PM | Report abuse

The Founding Fathers thought it through well? Repeal the 17th Amendment? So go back to having NO elections for U.S. Senators and just have legislatures appoint them??? The Founding Fathers also saw fit for only white males to vote, but that's another story. It remains absurd that each state has two U.S. Senator, so that a citizen of Wyoming or Alaska, for example, has much, much more say in electing a senator than does a citizen of New York, Florida, Texas or California. That is not one man, one vote. It is an anachronism, like the Electoral College, made to woo certain colonies to accept the formation of the union (of course, some later tried to back out).

Posted by: Sutter | March 11, 2009 5:44 PM | Report abuse

"Should All Senators Be Elected?"

Th real question should be. Should all Senators be un-elected!

Posted by: RetCombatVet | March 11, 2009 6:30 PM | Report abuse

No, none should be elected. All should be appointed by the states. This is the single biggest reason for Washington's continual encroachment on the power of the states, allowing Congress to force the states to do things they otherwise would not through the power of the purse.

If Senators represented the states, rather than the people, our brilliantly designed federal system, with all its intentional checks and balances to prohibit unfettered power, would be healthy and well.

Instead, we're stuck with this.

Posted by: asdf2 | March 11, 2009 7:23 PM | Report abuse

If they limit campaign spending to be affordable for good, poor candidates to have a shot, it is the only right thing to do.

Posted by: mzbond | March 11, 2009 7:41 PM | Report abuse

Elections are very costly to the states. Do these Senators want to pay for these elections out of the Senate Budget? If not, they should leave this alone and let the states decide since the states must pay for it!!

Posted by: paris1969 | March 11, 2009 7:49 PM | Report abuse

Senate Rejects Long-Term Extension Of E-Verify, Once Again Refuses To Protect American Jobs

Senators Voting Against E-Verify

Akaka (D-HI) Inouye (D-HI)
Begich (D-AK)
Bennet (D-CO) Udall (D-CO)
Bingaman (D-NM) Udall (D-NM)
Boxer (D-CA) Feinstein (D-CA)
Brown (D-OH)
Burris (D-IL) Durbin (D-IL)
Byrd (D-WV) Rockefeller (D-WV)
Cantwell (D-WA) Murray (D-WA)
Cardin (D-MD) Mikulski (D-MD)
Carper (D-DE) Kaufman (D-DE)
Casey (D-PA)
Conrad (D-ND) Dorgan (D-ND)
Dodd (D-CT) Lieberman (ID-CT)
Feingold (D-WI) Kohl (D-WI)
Gillibrand (D-NY) Schumer (D-NY)
Hagan (D-NC)
Harkin (D-IA)
Johnson (D-SD)
Kerry (D-MA)
Landrieu (D-LA)
Shaheen (D-NH)
Leahy (D-VT) Sanders (I-VT)
Levin (D-MI) Stabenow (D-MI)
Lincoln (D-AR) Pryor (D-AR)
Menendez (D-NJ) Lautenberg (D-NJ)
Merkley (D-OR) Wyden (D-OR)
Nelson (D-FL)
Reed (D-RI) Whitehouse (D-RI)
Reid (D-NV)
Warner (D-VA)

Posted by: buzzm11 | March 11, 2009 8:05 PM | Report abuse

OF COURSE they should be voted in! State governments are too corrupt to put anybody in office that's trustworthy, As least with a vote there's SOME chance of minimizing corruption.

Posted by: flipper49 | March 11, 2009 8:12 PM | Report abuse

Amazing what one sociopathic governor can accomplish - in this case, perhaps changing a long-standing feature of the US electoral system.

Roddie my boy, you're special.

Posted by: Miss_Hogynist | March 11, 2009 8:52 PM | Report abuse

The Borgen Project has some good info on the cost of addressing global poverty.

$30 billion: Annual shortfall to end world hunger.
$550 billion: U.S. Defense budget

Posted by: atsegga | March 11, 2009 4:40 PM


Try to stay on topic. What the hell does this have to do with Senate vacancies?

BTW, $30B is also what the United States and the European Union spend each year on perfume. I can't imagine which would be more frightening: no national defense or Europeans without perfume.

Posted by: hisroc | March 11, 2009 9:19 PM | Report abuse

NO, the whole of the Senate should be shut down & allow the House whose members are more reflective of the voters to take control of that portion of the government. Weather elected or appointed, the Senators first & most important job is to get re-elected & the hell with the needs of the middle class or the poor.

Posted by: MrReal | March 12, 2009 9:32 AM | Report abuse

All of Congress should be elected, and limited to two terms of service just as the President is.

Posted by: Donald7 | March 12, 2009 2:05 PM | Report abuse

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