Could This Be The Twenty-Eighth Amendment?

Senator Russ Feingold, an unabashed liberal representing Wisconsin, is (or shortly will) introduce a resolution to amend the Constitution. His proposal is to eliminate the power of a state’s Governor to appoint Senators when a seat becomes vacant, and instead to call for special elections. I’m moderately opposed to the idea — not because I think it’s a bad idea, but because I just don’t see the need for it.

Now, it’s certainly the case that historically, appointed Senators tend to lose elections the first time they’re put up for a vote, which is usually the next general election after their appointment. But, before this year, six out of the last eight times an appointment has to have been made, the appointed Senator has gone on to win election in his or her own right. In one of the other two times, the appointed Senator chose not to run at all, and in the last, the appointed Senator (Jean Carnahan) lost her election bid by a margin of .2%. To get to a time where an appointed Senator really got trounced, you need to go all the way back to Sheila Frahm of Kansas, who was appointed to fill Bob Dole’s seat when he resigned from the Senate to run for President full-time in 1996.* Senator Frahm lost in the primary to Sam Brownback and has never been heard from again.

So, it seems to be the case that at least recently, Governors have been doing a reasonably good job of picking Senators to appoint. But Feingold looks at the controversies surrounding the appointment of Senator Burris of Illinois and Senator-Designate Gillibrand of New York, and he sees something deeply wrong and undemocratic. I can’t say that special elections are a bad idea, although I’m not sure they’re necessary.

Recall that originally, the Framers intended the Senate to be an inherently conservative body. Analagous to the House of Lords in England’s Parliament, the Senate was originally to be constituted of members selected by the Legislatures of the various states. As originally drafted, it was possible that no Senator would have won election. It was anticipated that the Senator would reflect the general opinions of the State by virtue of the indirect popular backing of the Legislature, but free up the Senator from direct political pressure so as to exercise independent judgment. This is confirmed by the relatively long terms served by Senators — each term in the Senate lasts six years, which is half again as long as a President’s term and three times the terms served by a Representative.

Also recall that the Senate was created as a compromise to smaller, less populous states. Remember that the original conception of the United States was just what the name implies — a permanent alliance between sovereign nations. So each of these nations needed to have power and dignity equal to the others; it was thought unfair to a small state like Delaware or Rhode Island that a large state like Virginia or Pennsylvania could, by virtue of its larger population, drown out the political power of another sovereign nation. So, all the states are equal in the Senate. Again, we see that majoritarian principles are subsumed to other priorities in this original Constitutional balancing act.

So, the idea was to have “wise men” chosen to represent sovereign states on an equal footing with one another, still subject to the popular will but buffered from the ever-shifting pressures of everyday politics. A nice idea in theory, but it created the danger that Senators would stray far from the popular will and reduce the upper house of Congress into something that was not in tune with the way the people wanted things to be. So over time, several states began the process of having popular election for the Senators and having their Legislatures confirm that appointment, or to simply devolve the legislative power to those elections.

In 1913, the Constitution was amended. Thanks to the Seventeenth Amendment, now all the states have popular elections for their Senators. Which is fine and has worked out well. The Senate is still an institutionally more conservative body than the House, in the sense that it is slower to change in response to movements in the body politic owing to the longer and staggered terms of its members. But the question is, is it undemocratic? Is it in tune with the rest of the Constitution to have a governor appoint an interim Senator?

Feingold has a point that it seems to be contrary to the spirit of the Seventeenth Amendment. And a state can certainly enact a law that requires a special election rather than a gubernatorial appointment; Feingold’s own state has such a law, but most do not. One advantage that an appointment has over a special election is that it’s cheaper and faster. And it’s also a decision that is subject to relatively quick popular confirmation or rejection.

At the end of the day, I don’t see any problem with the way things are now. It’s not a bad idea, but there’s certainly no compelling need to change the way interim Senators are placed in office. Yes, Illinois’ Governor appears to have tried to sell the seat, but there are ways to corrupt an election, too, so this isn’t an anti-corruption measure. And yes, there were a lot of people who wanted New York’s Governor to appoint Caroline Kennedy and are now disappointed with Kirsten Gillibrand. But someone is always disappointed with any political choice whether arrived at through appointment, devolution of office, or election; Gillibrand doesn’t seem so bad to me; and Ms. Kennedy never really seemed to have anything going for her but a magnetic pedigree.

So I guess it’s a nice idea, Senator Feingold, but I just don’t see how appointing interim Senators isn’t working just fine. If it ain’t broke, don’t fix it.

* What was Dole thinking? I thought about that even then. Bill Clinton was hugely popular and no one had ever heard of Monica Lewinsky in 1996. Dole was not dumb; he had to know he was going to lose. I can only continue to maintain my now twelve-year-old speculation that it was a retire-while-on-top exit strategy.