An amendment to change the system of how vacancies in the Senate are filled was introduced by Senator Russ Feingold (D–WI, pictured) on January 11 in the Senate and Februrary 11 in the House. This amendment would alter the section of the 17th Amendment which stipulates: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.
In short, each state may determine how its Senate vacancies are filled, so long as there is an election at some point. The norm is to have the governor appoint a replacement and then have an election to fill the seat at the next Congressional election (held every two years). Only a few states (such as Massachusetts and Feingold's state of Wisconsin) mandate immediate special elections to fill Senate vacancies without having the governor appoint a replacement.
The point of controversy is that Senators who were never elected could be serving for up to two years, and there is much potential for back-room dealings such as the recent spat involving then-Governor Rod Blagojavech of Illinois and his appointment of Roland Burris to fill Obama's empty Senate seat.
The Senate version (S.J. Res. 7) and House version (H.J. Res. 21) of the proposed amendment read as follows:
Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. 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.
Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.
There are 7 co-sponsors in the House and 3 in the Senate: Mark Begich (D-AK), Dick Durbin (D-IL), and John McCain (R-AZ).
Labeled a "perfection amendment" by Feingold (or what I would call a "housekeeping amendment"), this proposed amendment would not drastically alter the Constitution, nor is this a partisan amendment (like the Federal Marriage Amendment, for example). It is for these reasons that this amendment actually has a decent chance of being ratified and will probably be the most closely watched on this blog.
In his press conference introducing the bill to the House on February 11 (video at the end of this post), Feingold calls the current method of filling vacancies outlined in the 17th Amendment "a constitutional anachronism" that is "a carryover from the original Constitution that allowed the governor to make temporary appointments until the state legislature could choose a Senator." He also stresses that this amendment would put in place the same process used to fill House vacancies.
I agree with the concept of the amendment; however, I think it should be worded to mandate a special election within so many days of the seat being vacated (say, 90 days). In the meantime, the governor should make a temporary appointment. The reason being is that, while the House may replace its members via special election, that body also has 435 members. If the House is missing a few members for the couple months it takes to organize, campaign for, and hold an election, it can still function normally. But, the Senate, with only 100 members really needs its full membership to conduct its business as smoothly as possible. Also, the amendment makes no provision in the event of an emergency whereby a large number of Senators are killed in, say, a terrorist attack. Should an unthinkable scenario like this occur, we would be much at risk as we would not be able to sustain our continuance of government.
Representative Aaron Schock (R–IL) has addressed these problems by introducing a bill (not a proposed amendment) that would tackle the issue of needing temporary gubernatorial appointments. There will be more on this in my next post, as well as a discussion of the joint Judiciary Committee hearing held last Wednesday to discuss this amendment.
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