Our founding fathers did a remarkable job in drafting the United States Constitution and the Bill of Rights. Their work was so superb that in the 217 years since the ratification of the Bill of Rights, the Constitution has only been amended 17 times, and one of those amendments struck down an earlier amendment (prohibition). But every so often, a situation arises that so clearly exposes a flaw in our constitutional structure that it requires a constitutional remedy.
Over the past several months, our country has witnessed controversies surrounding appointments to vacant Senate seats by governors. The vacancies in Illinois and New York have made for riveting political theater, but lost in the seemingly endless string of press conferences and surprise revelations is the basic fact that the citizens of these states have had no say in who should represent them in the Senate. The same is true of the recent selections in Delaware and Colorado. That is why I will introduce a constitutional amendment this week to end gubernatorial appointments to the U.S. Senate and require special elections to fill these vacancies, as is currently required for House vacancies. As Chairman of the Constitution Subcommittee, I plan to hold a hearing on this amendment soon.
I do not make this proposal lightly. In fact, I have opposed dozens of constitutional amendments during my time in the Senate, particularly those that would have interfered with the Bill of Rights. The Constitution should not be treated like a rough draft. Constitutional amendments should be considered only when a statutory remedy to a problem is not available, and when the impact of the issue at hand on the structure of our government, the safety, welfare, or freedoms of our citizens, or the survival of our democratic republic is so significant that an amendment is warranted. This is such a case.
The fact that the people of four states, comprising over 12 percent of the entire population of the country, will be represented for the next two years by someone they did not elect is contrary to the purpose of the 17th Amendment, which provides for the direct election of Senators. That is not to say that people appointed to Senate seats are not capable of serving, or will not do so honorably. I have no reason to question the fitness for office of any of the most recent appointees, and I look forward to working with them. But people 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. And the voters should choose them in the time-honored way that they choose the rest of the Congress of the United States.
This proposal is not simply a response to these latest cases. Those cases have simply confirmed my longstanding view that Senate appointments by state governors are an unfortunate relic of the time when state legislatures elected U.S. Senators. This system was replaced by direct elections by the citizens of each state following the ratification of the 17th Amendment in 1913. Direct election of Senators was championed by the great progressive Bob La Follette, who served as Wisconsin’s Governor and a U.S. Senator. Indeed, my state of Wisconsin is now one of only three states (Oregon and Massachusetts are the others) that require a special election to fill a Senate vacancy. But the vast majority of states still rely on the appointment system. Changing this system state by state would be a long and difficult process, particularly since Governors have the power to veto state statutes that would take this power away from them. We need to finish the job started by La Follette and other reformers nearly a century ago. Nobody can represent the people in the House of Representatives without the approval of the voters. The same should be true for the Senate.
There are several precedents for amending the provisions of the Constitution that relate to the structure of government when events show that such amendment is needed. The 22nd Amendment, limiting the presidency to two terms, passed in 1951 in response to President Franklin D. Roosevelt’s four-term presidency. And the 25th Amendment, revising presidential succession, was passed in 1967 in response to confusion that occurred after the assassination of President Kennedy.
One objection I have heard to this proposal is the potential financial burden on the states that must pay for special elections. As someone with a reputation for fiscal discipline, I always consider a proposal’s impact on the taxpayer. But the cost to our democracy of continuing the anachronism of gubernatorial Senate appointments is far greater. And weighing the costs associated with the most basic tenet of our democracy – the election of the government by the governed – sets us on a dangerous path. Besides, the Constitution already requires special elections when a House seat becomes vacant, a far more frequent occurrence since there are so many more Representatives.
The bottom line must be ensuring a government that is as representative of and responsive to the people as possible. The time to require special elections to fill Senate vacancies has come. Congress should act quickly on this proposal, and send it to the states for ratification.
Thanks for the comments so far. I’ll try to address some of the issues folks have been raising.
Some have suggested that gubernatorial appointments would be ok if a vacancy occurs close to an election. While I understand their point, as the 17th Amendment demonstrates, we should be wary of carving out loopholes to the principle of direct election of Senators. Inevitably, there will be some gap in representation while a special election is held. If a state determines that it prefers to leave a seat vacant for a brief period of time until the next regularly scheduled election, that is up to the state.
Some people have posted comments saying that while they may agree with this idea, there are more important issues for the Congress to address. My response to that is two fold – first, as now Secretary of State Hillary Clinton told me when discussing the multiple challenges we face around the world, we can walk and chew gum at the same time. The same would apply here. This should not detract from Congress’ ability to tackle the important issues of the day like our great economic challenges and the wars in Iraq and Afghanistan. Second, making sure that the Senate is representative of and responsive to the people ought to be a top priority for the Congress. This is not a minor matter.
And in response to those who think this amendment will never pass, my initial response is: of course it won’t, if we don’t even try. The time to act on this is now. As I mentioned in my post, other changes to our governmental structure have been made in response to specific events, like Franklin Roosevelt’s four-term presidency and the confusion following John F. Kennedy’s assassination. The Seventeenth Amendment itself came about in part because the system for state legislatures appointing Senators had broken down – 45 appointments deadlocked over just a decade at the start of the 20th century. The current state of the Senate – which has left 12 percent of Americans represented by Senators they did not have a hand in electing – is another such occasion. It will be difficult, and it may take a long time, but for the sake of our democracy, it is well worth the effort.
The Constitution provides an arduous process for constitutional amendments for good reason. Both the House and the Senate must pass the amendment by a 2/3 margin, and ¾ of the states must ratify it. So there is plenty of time, and there are plenty of places, for citizens’ voices to be heard. If the American people don’t agree with me, then this amendment won’t pass.
I’m happy to let you all know that Senator Mark Begich (D-AK) has come out in support of my proposed constitutional amendment. Here is his statement:
U.S. Sen. Mark Begich announced today that he will co-sponsor a bill being introduced to amend the U.S. Constitution to end appointments to the U.S. Senate by governors. Wisconsin Sen. Russ Feingold plans to introduce legislation this week that would require special elections in the event of a Senate seat vacancy.
"I am pleased to support this legislation which is in line with what Alaska voters have already decided – that the only appropriate way to fill a U.S. Senate seat is by a vote of the people," Sen. Begich said. "The recent controversies in Illinois and New York only underscore the need for a process that allows the people to decide who they want to represent them in the U.S. Senate."
In November 2004, Alaska voters changed state law that had allowed gubernatorial appointments to the U.S Senate. The "Trust the People" initiative stripped the power of the governor to fill U.S. Senate vacancies, and put in place a provision to fill a vacancy with a special election to occur 60 to 90 days after the seat becomes vacant.
"I support Sen. Feingold’s attempt at making this process for filling Senate vacancies uniform across the states. A vote of the people is the only truly democratic way to decide these important seats," Begich said.
Special elections are already required to fill U.S. House seats.