Feingold proposes ban on Senate appointments
Sen. Russ Feingold (D-Wis.) has introduced a constitutional amendment that would require elections to fill vacant seats in the Senate, prohibiting governors from filling the seats by appointment. The proposal has its downsides, but it will quite possibly become our 28th amendment, a fact we have good reason to cheer.
A Little History
Prior to the 17th Amendment, senators were elected by state legislatures, and in cases of vacancy governors made interim appointments until the legislature could convene. This system was imperfect, Associate Senate Historian Donald Ritchie told the HPR. “Sometimes entire congresses would go by with seats with nobody in them,” Ritchie said. The 17th Amendment, ratified in 1913, allowed state legislatures to determine how to fill vacancies, and 32 states, perhaps seeking to avoid the old system’s imperfections, provide for governors to fill vacancies by appointment, until the next scheduled election.
The Trouble with Appointments
This arrangement was on full display this winter as four sitting senators joined the executive branch, leaving indecisive governors in their wake. Each of the four appointments illustrated a problem with that method of filling vacancies: Delaware’s Ted Kaufman was seen as a placeholder for the Biden dynasty, Colorado’s Michael Bennet was a no-name who needed to introduce himself to the people he would be representing, New York’s Kirsten Gillibrand was appointed following a media circus, and, of course, Illinois’ Roland Burris was tainted immediately by guilt-by-association and eventually a scandal of his own. This history leaves no doubt about the proximate cause of Feingold’s amendment.
Feingold points out that his home state is one of just four that requires immediate special elections to fill vacant seats. But he sees no point in hoping for state-by-state changes in the law, since governors would have the power to veto the very statutes that would strip them of the appointment power. And, as Professor Mark Tushnet of Harvard Law School told the HPR, “It makes sense to bring the mechanisms for replacing senators who resign or die into line with the way we elect them in the first place.”
Upside to Appointments?
But there are also advantages to the current system. Professor Sanford Levinson of the University of Texas School of Law told the HPR that he appreciates the fact that it lets states decide. He added that states can get “full representation the very next day.” Ritchie articulated the same federalist idea: “The 17th Amendment … doesn’t presume to tell states how they have to run their elections.”
Furthermore, according to Levinson, Feingold’s amendment is incomplete without a provision addressing “wholesale vacancy,” which is the extreme scenario in which a terrorist attack or other catastrophe leaves a large number of Senate seats suddenly vacant. Without a contingency plan allowing appointments in such a situation, Levinson thinks that Feingold’s amendment would leave the Senate incapacitated, unable to fill a quorum, until special elections were held in a significant number of states. Under such circumstances, he said, “It would at least be helpful if there were some alternative to a presidential dictatorship.”
Prospects for Passage
Levinson may not have to worry. Ritchie pointed out that thousands of amendments have been proposed in Congress, and “there have been very few that have actually gotten through.” Tushnet noted the general difficulty of passing a “good government” amendment in which “no one in the Senate or the House has much at stake.”
At the same time, the amendment probably has few natural opponents. Both parties have the same number of senators who, under the current system, would be replaced by governors from the other party if they decided to retire or passed away. If Feingold’s amendment passes, these Senate seats will be a little more likely to stay in the hands of the party that currently holds them.
The amendment’s fate will ultimately depend on whether the public’s frustration with the appointment process, stoked by the Illinois fiasco, gives way to a sustained effort to overcome procedural difficulties, indifference, and the objections of federalists. Feingold’s amendment has the logic of history behind it: the Senate, originally designed as a bulwark against the whims of the masses, has gradually become more democratic in pedigree. It may take a few more Roland Burris-type appointments, but in time it seems likely that direct election of senators will become the rule, without exceptions.