Democracy Soup

Making sense out of the world of politics

No Constitutional Amendment necessary: People already have power to make Senate replacement changes

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Originally published on on Wed, 01/28/2009 – 11:45am

Amending the U.S. Constitution is supposed to be done when absolutely necessary, not an idle decision to be made hastily.

But we do have a new proposed amendment to the U.S. Constitution from Sen. Russ Feingold (D-WI) to revise the 17th Amendment to take away from governors the power to solely appoint replacements to the U.S. Senate.

“The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end. In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this country the power to finally elect their senators. They should have the same power in the case of unexpected mid term vacancies, so that the Senate is as responsive as possible to the will of the people. I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute. As the Chairman of the Constitution Subcommittee, I will hold a hearing on this important topic soon.”

But is that proposed amendment overkill or just the right kind of move to make?

Since 1913, governors, with certain exceptions, have had the universal power to make replacements to the U.S. Senate. Before the 17th Amendment, senators were not elected, but voted on by state legislatures. So the 17th Amendment was seen as a necessary improvement for democracy.

So we have 96 years of a track record to decide whether the 17th Amendment needs to be updated. But the discussion doesn’t involve 96 years of decisions. It only invokes one decision in 2008: Illinois.

Everyone agrees that the spectacle that has surrounded Illinois and its governor is a horrible scandal, and should not be repeated. But there was another recent case where a state ran into a controversy, and its solution might show some light on what we can do in lieu of a Constitutional amendment.

Frank Murkowski (R-AK) was a longtime U.S. Senator for almost 22 years until late 2002. Murkowski was elected governor of the state. And as governor, Murkowski picked his own Senate replacement, his daughter Lisa Murkowski.

The voters of Alaska were outraged as the audacity of the move. So what did the voters of Alaska do? Did they complain about a Constitutional Amendment?

No. They did something about it. First of all, they voted against Murkowski in the next primary in 2006. Murkowski came in third in a party primary with 19%. Not third in a general race, third in a primary (Who won that primary? Yes, it was Sarah Palin with 51%).

But that isn’t all the voters did. In fact, Alaska’s law on senatorial succession was changed twice in 2004 — legislatively and by ballot initiative. And both laws call for a special election within 60 to 90 days of the vacancy.

Say what you will about Alaska politics, but they were unhappy with the process. And so they did something about it.

In 1976, Minnesota Governor Wendell Anderson chose to pick himself to replace newly elected Vice President Walter Mondale in the Senate. How well did that go? Anderson was soundly defeated when he had to run again in 1978. Again, the voters decided.

Here is the portion of the 17th Amendment, which allows states to set up exceptions to the governor picks the replacement option.

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. (our emphasis)

There are 16 states that don’t give governors that direct power: 12 states require a special election. And there are four states — Hawaii, Utah, Arizona, and Wyoming — where governors must select a candidate from a list submitted by representatives of the departing incumbent’s political party. Wyoming Governor Dave Freudenthal utilized this latter form when Sen. Craig Thomas died in 2007.

California and New Jersey allow a gubernatorial option for a fast special election.

Perhaps Illinois will be the next state to change that law, followed by New York, Delaware, and Colorado. Or not.

Filling a vacancy with a special election becomes an easier idea when there are two years until the next major election. But under the 28th Amendment, in the Paul Wellstone case, a special election would be required to fill the last two months of a term. Is that a prudent use of taxpayer money?

Those who are concerned about the current state of affairs can be completely justified in their response. The Illinois situation was a complete fiasco, but perhaps if the state laws were better written, the governor could have been made to step aside, which would have significantly reduced the size of the mess. But critics of the New York and Delaware situations are making way more of this than needed.

David Paterson’s pick of Kirsten Gillibrand was convoluted, but he did say he wanted to pick a woman from Upstate all along, and he did. And Gillibrand is no better or worse than many other decisions made in the last 96 years that received much less publicity.

If critics of Paterson don’t like what he did, they can vote him and Gillibrand out of office in the next election. And in Delaware, they can choose not to vote for Beau Biden if they don’t like the way that seat was handled.

There are distinct differences between House seats and Senate seats, which require different rules. Senators are more important than Representatives, and the difference in time lost is more significant in the upper body. Insisting on all 50 states having special elections will create a solution worse than the problem.

Under the 17th Amendment, states are allowed to make their own rules. Yes, the governor can make temporary appointments but that is only “until the people fill the vacancies by election as the legislature may direct.” So the state legislatures can make a call, and so far, 18 states have done so.

And if people in the 32 other states aren’t happy with the current setup, they have the will to change the law without needing a Constitutional Amendment. The 17th Amendment gives them the option right now to change the rules. All they have to do is utilize the power if they want things to change.


Written by democracysoup

January 28, 2009 at 11:45 am

Posted in Uncategorized

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