Wednesday, December 17, 2008

Filling Senate Vacancies

The unusual election of two sitting Senators to fill the positions of President and Vice President, combined with the nomination of two more sitting Senators (Clinton and Salazar) for Cabinet positions, leaves Governors in Illinois, Delaware, New York, and Colorado in the position of picking interim replacements. We came very close to a fifth. Had Ted Stevens won re-election and been expelled by his fellow Senators, Alaska would also be on the list.

Thus we come to the Seventeenth Amendment, which provides for direct election of Senators. (The original Constitution gave state legislatures the power to choose their Senators.) The Amendment also provides:
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.
This, in my view, is an unfortunate provision, and not only because, but for Patrick Fitzgerald, it would have empowered Rod Blagojevich to fill Barack Obama's former seat. Giving the Governor the power of interim appointment can seriously frustrate the will of the voters, especially when the Senator who resigns or dies in office belongs to a different party from the Governor.

Would it not be better, in cases of resignation but not death or mental incapacity, to vest the power of interim appointment in the resigning Senator herself or himself? Who better to pick a replacement to carry out the work as the People would have wanted than the person they chose? The problem here, of course, is that while Senators sometimes resign to take even loftier positions in the Executive branch, a fairly common reason for resignation is scandal.

Another possibility might be to let the state legislature itself pick an interim Senator. Because the main point of the Seventeenth Amendment was to displace the system of state legislative selection of Senators, however, its drafters did not give serious consideration to this possibility. (Even under the original provision of Article I, Governors could pick interim Senators while the state legislature was out of session.) Still, state legislative selection would run the risk of frustrating party expectations, just as gubernatorial selection does.

Here I want to suggest a way to circumvent all of these problems: State legislatures should simply disempower Governors of their respective states to make interim appointments, while special elections should be held to fill Senate vacancies within a couple of months of their occurrence. This process would mean that there would be no incumbent, which in a way is only fair. The benefits of incumbency ought to go only to Senators who have actually earned their incumbency. Of course, the somewhat greater likelihood of party turnover that would arise from eliminating incumbency might in turn lead to fewer Senators resigning their seats to fill other offices. I reserve judgment as to whether that effect would be desirable or not.

Posted by Mike Dorf