Last Wednesday, March 11, the Senate and House Judiciary Committees held a joint hearing on S.J. Res. 7 and H.J. Res. 21 (Sen. Feingold's amendment regarding Senate vacancies, please see my previous post for more information). Most of the testimony came out in favor of the amendment, however it is worth reading the statements of Vikram Amar (a professor of law at the University of California) and Rep. Aaron Schock (R-IL, pictured). Both are in favor of the Ethical and Legal Elections for Congressional Transitions (ELECT) Act (H.R. 899), introduced by Schock himself, a regular bill (not amendment) which would manage to have the same effect as Feingold's proposed amendment but without having to actually change the Constitution. It also addresses several weak areas in Feingold's amendment.
For one, Feingold's proposed amendment does not set a timeframe for when the special election must occur. A state short on funds that does not, or cannot, run a special election at the moment of a Senate vacancy would still be allowed to wait the two years for the next Congressional election. In the meantime, instead of being served by an appointed Senator, the state would continue to have a vacant seat. Is having a vacant seat for two years truly better than having an appointed Senator for two years? I don't think so.
Also, as I explained in my previous posting, the amendment does not address what would happen in an emergency where a large number of Senate seats needs to be replaced quickly to ensure our government remains operative in a time of crisis.
Both these objections were put forth by Amar and Schock. They both defend the Constitutionality of the ELECT Act by citing Article I, Section 4, Clause i which states that "The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Place of Chusing Senators."
Therefore, while Congress does not have the authority to prevent a governor from appointing a replacement (only the state legislature can do that), Congress does have the ability to determine when and how special elections will be held to fill Senate vacancies.
The ELECT Act does just this. It uses Congress's power under Art. I, Sec. 4 to mandate that special elections be held within 90 days of a Senate vacancy. In the meantime, the governor can elect someone to hold the seat so it does not remain vacant for too long. This appears to give us the best of both worlds: No Senate seat remains vacant, but all appointed Senators must be elected at some point within 90 days after a Senate seat is vacated.
The ELECT Act also provides a system whereby special elections are funded, having the federal government take up some of the costs of running an election. Most of the objection towards Feingold's amendment is because of the costliness of running an election. The ELECT Act also satiates this opposition.
None of the testimony presented at the hearing seems to be able to say why the ELECT Act would not suffice.
It is therefore that I support the ELECT Act over Feingold's proposed amendment, as it better addresses the issue at stake and takes into account several problems that Feingold's Amendment does not. I would advise my readers to contact their Senators and their Representative to urge them to vote in favor of the ELECT Act and not Feingold's amendment.
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