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."
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