These recent events are good cause to question the nature of the process by which such seats are filled.
The 17th Amendment to the Constitution states that, in the event of a vacancy in the Senate, the state legislature may empower the governor to appoint a replacement to serve out the remainder of the term. All but five states still retain this outdated procedure, although it raises some troubling issues.
The appointment of senators by governors circumvents the democratic process and leaves the electorate completely out of the process of selecting its own representative. Governors’ personal political interests can easily take precedence over voters’ preferences, leading to the selection of senatorial appointees with little or no appeal outside their district. Moreover, as the Blagojevich-Burris saga demonstrated so well, there are virtually no limitations on a governor’s power to appoint, which raises the possibility that corruption and nepotism could play into the decision. By the time the competence of appointed senators is eventually put to the test before voters during reelection, they already have the political advantage of running as an incumbent.
Instead of allowing the appointment of a senator to remain in the hands of a single individual, the Senate should follow the policy of the House of Representatives and fill empty seats by special election. The current system of gubernatorial appointments seems reminiscent of the framers’ original conception of the Senate as an elite body, elected by the state legislatures in order to remain insulated from popular opinion. Pressure throughout the late 19th century led to the passage of the 17th Amendment, allowing for the direct election of senators by the people and dramatically weakening the distinction between Senate and House. Given that both members of the House and senators are currently popularly elected, it is illogical for there to be differences in the way that vacancies in the two houses are filled. All congressmen should have the approval of voters in order to hold office.
We applaud Senator Russ Feingold, chairman of the Senate Judiciary Subcommittee on the Constitution, for introducing a constitutional amendment this week that requires special elections to fill Senate vacancies. While special elections are often expensive and difficult to execute in a short amount of time, they are necessary to ensure that replacement senators are as responsive to their constituents as possible. Preserving democratic principles is well worth the extra trouble.