VIKRAM DAVID AMAR

Reforming the Way Senate Vacancies are Filled: A Q&A About the Proposed Constitutional Amendment and the "ELECT Act" Bill

By VIKRAM DAVID AMAR


Friday, March 27, 2009

In my most recent column for this site, I (joined by my former student Michael Schaps) analyzed a constitutional amendment being urged by (among others) Senator Russell Feingold in the wake of recent controversies surrounding gubernatorial temporary appointments to the United States Senate. Of these controversies, perhaps the most notorious was that involving embattled former Illinois Governor Rod Blagojevich's appointment of embattled Senator Roland Burris. Senator Feingold's proposal would constitutionally end gubernatorial appointments of replacement Senators altogether. This proposal was the subject of Congressional hearings earlier this month at which I and a number of others gave our views.

Also discussed at the hearing was an alternative to this constitutional amendment, freshman Congressman Aaron Schock's (R-Ill.) proposed bill, currently entitled the "Ethical and Legal Elections for Congressional Transitions (ELECT) Act." Mr. Schaps and I provisionally endorsed this solution in our column. The ELECT Act would require that an election to fill a Senate vacancy generally be held within 90 days of the vacancy's creation, but would not disturb any existing state-law mechanisms for a temporary gubernatorial appointment to be made during the 90-day period. The bill would also provide states with some money to help defray the costs of special vacancy-filling elections.

In the last two weeks, at least two major newspapers (the Washington Post and the Chicago Tribune) have written editorials highlighting the issue and urging Congress to take action. I have also received dozens of queries from legislators and others about the relative merits of the Feingold and Schock proposals. In the space below, I will try to address some of the recurring important questions I have heard.

Q: In the aftermath of September 11th, debate in Congress centered on how to preserve continuity of government in case of catastrophic vacancies. The absence of temporary gubernatorial appointment power for the House of Representatives was viewed by many as an impediment to that challenge. Would the proposed constitutional amendment regarding the Senate complicate the problems that may be faced in the event of a catastrophic vacancy?

A: In its current form, the proposed constitutional amendment does complicate problems created by a mass vacancy. As Mr. Schaps and I said, and as others, such as Professor Sanford Levinson of the University of Texas Law School, have elaborated, the possibility of an attack on Washington that could kill tens or dozens of Senators is all too real. And special elections to fill all those vacancies would take at least a few months to organize and hold. (Indeed, holding special elections under "normal" circumstances is tough enough; holding them in times of national crisis may be more difficult still.) So if this amendment were adopted, the nation would run the non-trivial risk that key decisions about how the federal government should respond to crisis might be made by a miniaturized Senate in which some states (or even regions) of the country would lack full and equal, or perhaps any, representation and voice.

Nor is it a solution to say, as some at last month's Congressional hearing on the proposed amendment suggested, that problems concerning continuity in government can be dealt with outside the contours of the Feingold proposal; if the amendment passes in its current form, it would lock into the Constitution an absolute ban on quick temporary Senate appointment of any kind, such that nothing any state or Congress tried to do to deal with the potential of mass vacancy would be permissible. It would take yet another constitutional amendment to address an issue that ought to be addressed now. And how many times can we reasonably expect the arduous amendment process to be successfully navigated?

Q: Campaigns for general elections often begin very early. Special elections, however, are often called unexpectedly, removing the possibility of any early campaigning. Does this put candidates and voters at a disadvantage?

A: Special elections always place burdens on the states holding them, and the voters who are asked to participate in them. As I noted in my written testimony, promoting good voter turnout may be a particular problem in special elections, and might be a problem that is more pronounced in some states than others. Moreover, as Representative Nadler astutely pointed out at the hearing, short election campaign cycles may tend to favor rich and famous candidates in big states, like California and New York, where it usually takes time to raise the large amounts of money needed to run a state-wide campaign across many cities and hundreds of miles. It was mentioned in the hearing that California in 2003 was able to hold a special election for Governor in a matter of about three months. But it is also perhaps worth noting that the winner of that election was a rich celebrity (Arnold Schwarzenegger).

None of this is to say that elections, and even special elections, are poor means to fill Senate vacancies. To the contrary, elections are the best means to fill vacancies. But the practical problems of special elections (relating to time, expense and turnout) may mean that Senate vacancies would persist for intolerably long periods of time if gubernatorial appointments were foreclosed altogether. It also might mean that we should be careful in picking a one-size-fits-all timeframe for special elections that might not adequately respect the demographic differences among the states.

Q: Is a constitutional amendment necessary to ensure special elections to fill Senate vacancies, or are states already free to have special elections?

A: States are free to use special elections (and they do), but some states may not hold special elections promptly enough to satisfy many observers. And some proponents of the proposed constitutional amendment apparently think that having vacancies is preferable to having appointed Senators fill the seats until an election is held. I continue to believe that appointed Senators are better than absent Senators during the time it takes to hold reasonable, inclusive, fair elections.

Q: Would the proposed constitutional amendment essentially guarantee that states facing Senate vacancies will have fewer than two senators for a period of time?

A: Yes, because even under the best of circumstances, elections take a matter of months.

Q: Under this proposed amendment, is it also possible for states to have no Senate representation at all for periods of time? If so, how is this consistent with the Constitution's establishment of equal representation of the states in the Senate?

A: Yes, it is possible under the amendment for a state to have no Senate representation for a period of time, although this is statistically unlikely (except in the case of terrorism or other mass disaster). But even 50% representation of a state for a matter of months is problematic. The Senate is, to be blunt, a bit anachronistic in its representational structure. From the point of view of a small state, having 50% representation for any significant period of time undermines the special concessions that small states won in 1787 in forming the Senate the way it is. And for a large state, underrepresentation is even more problematic; for a populous state to have half the voice of a small state in the Senate for any appreciable period of time seems unacceptable to modern sensibilities. That is particularly true given how much important Senate business is transacted in a matter of weeks, and how thin the voting margins (both as to cloture and as to final votes on the merits of proposed actions) seem to have been in recent times on crucial public policy questions.

Q: Do you think that the same arguments apply equally to the House of Representatives? If we should be reluctant to amend the Constitution to foreclose gubernatorial appointment power of Senators, shouldn't we amend the Constitution to permit gubernatorial appointment power (which is currently lacking) for House members?

A: One could argue that House vacancies should be fillable by appointment as well, especially in moments of mass vacancy, but the House and Senate are not similarly situated here. Most importantly, a single vacancy in the House does not usually deprive persons from an entire state of their representational due. While the citizens of one Congressional district may have different needs from the citizens in neighboring districts even within the same state, these citizens share much in common and their representatives can often virtually represent the interests of the region. Consider, for example, the stimulus package and the aid to states it contained. All California folks benefit from the stimulus money dedicated to California; if California were down one of its 50-plus House members, that would be far less troubling to people throughout the State than being down one Senator when it came time to vote on the specifics of the bill.. Moreover, even as to so-called "earmarks" destined for particular Congressional districts, there is often far more spillover effect into other districts within the state than there is spillover across state lines. Because states remain important political and regulatory subdivision units in the United States, lines between states are much more important than lines between Congressional districts.

Also, the law of large numbers makes it much more likely that, say, 10% of the (smaller) Senate could at any time be vacant than 10% of the (much larger) House could be.

Finally, special supermajority rules of operation in the Senate, like the filibuster, may tend to make the margins of victory on key votes smaller than in the House, which in turn makes the presence of any vacancies more significant and troubling than in the House.

So the House and Senate cannot simply be equated here.

Q: What guarantees are there that gubernatorially-appointed Senators will really represent the wishes of the people of the State?

A: There are no guarantees that any aspect of democracy will work every time. But the Governors who make Senate appointments are in almost all circumstances themselves elected, and elected by the same statewide electorate that elects Senators. Governors are accountable, and indeed removable (by recall) in many states. As I have noted elsewhere, I don't quarrel with the notion that elections are superior to appointments as a general matter. What I believe, however, is that appointments are superior to vacancies during the significant periods of time that special elections invariably take. And if we, regrettably, need appointments to fill vacancies, then Governors are the best (albeit) imperfect ones to make such temporary appointments, for reasons I laid out in my earlier written testimony and reasons that motivated the drafters of the Seventeenth Amendment.

Q: What happens if a Governor appoints someone whom the people would not have chosen – say, someone of a different political party than the party of the Senator who died, resigned, or was removed so as to create the vacancy?

A: Sometimes an appointee of a different party than the departed Senator would be the people's choice; the departed Senator might have been elected because of his/her personality, not his/her party. Or perhaps the departed Senator's party may have been repudiated in the meantime because of incompetence or scandal. So it is hard to know whether a Governor is, or is not, appointing a person the people would have elected when the Governor makes a temporary appointment. But the Governor is accountable to (and in some states removable by) the people, so the Governor's appointment is not inherently illegitimate, as some at the hearing suggested.

Everyone– including myself– agrees that fair elections are the best ways to fill vacancies. But because good elections take time, and because allowing vacancies to persist in the meantime is, to my mind, not a good idea, I strongly believe that gubernatorial appointments are the best alternative we have in a world that is imperfect because we can't have instantaneous credible elections.

Q: Is the ELECT Act really constitutional, and what about the language in the Seventeenth Amendment giving state legislatures the power to structure special elections themselves?

A: I have seen no sustained analysis of the text, structure, history and practicalities of the Constitution suggesting that Congress lacks power to pass a measure like the ELECT Act. While one can never predict the outcome of a court challenge with certainty, most people who have raised questions about the ELECT Act's validity have done only that – raise questions, rather than conclude that the Act would or should be invalidated. (Laurence Tribe of Harvard was reported in the Washington Post editorial as "disagree[ing]" with my position that the ELECT Act is constitutionally permissible, but my discussions with Professor Tribe lead me to believe that he has questions, more than answers, at present, and that he has not yet had a chance to carefully look at all the arguments that I -- and others, including Congressional legal expert Michael Stern -- have advanced in support of the bill's validity.)

At base, the question concerns the Constitution's Article I, Section 4 – which expressly gives state legislatures the power, in the first instance, to set the time and manner of federal legislative elections but then also gives to Congress the power to override those state legislative decisions. We need to ask if this provision applies to vacancy-filling elections under the Seventeenth Amendment. Congress had (and exercised) power to regulate vacancy-filling devices in the Senate before the Seventeenth Amendment. And there is nothing in the Seventeenth Amendment that purports to eliminate this power. Certainly Article I, Section 4 applies to regular (six-year) elections under the Seventeenth Amendment: State legislatures are allowed to regulate, in the first instance, the time and manner of modern elections and Congress possesses the power (which it has invoked) to step in as to the time and manner of those elections. There is no plausible reason why Article I, Section 4 should not also apply to vacancy-filling elections.

As noted in my earlier column, Southern Senators attempted, during the latter-stage debates over the Seventeenth Amendment, to insert language that would have freed popular elections of Senators in the several states from Article I, Section 4 Congressional control. The Southerners' proposal for the wording of the Seventeenth Amendment would have explicitly given state legislatures power over the time, place, and manner of Senate elections, replicating the first part of Article I, Section 4, but pointedly would not have repeated the second part of Article I, Section 4, giving Congressional override power. Proponents of this language were explicit about their intentions; they made clear that they were trying to remove Article I, Section 4 power from Senate elections. These attempts ultimately failed – for proponents of the Seventeenth Amendment successfully argued for the continued need for federal oversight over the manner of picking Senators. It would be very odd to think that the Southerners lost their battle to remove federal oversight power with respect to regular Senate elections, but won this battle with respect to vacancy-filling elections, without anyone in the debate (so far as I can tell at this point) having suggested that the two kinds of elections (regular and vacancy-filling) should be treated differently in this regard.

Why, then, does the vacancy-filling provision of the Seventeenth Amendment refer to the power of state legislatures at all? Here are two quick reasons: First, it is a reminder that state legislatures do, by virtue of Article I, Section 4's general applicability, have the power to regulate all congressional elections, in the first instance. Second, it makes clear that state legislatures, rather than state Governors, are the ones who set the procedures for the elections. No mention of Congress' override power here was necessary, because such power was understood to exist. After all, the text of Article I, Section 4 by its own terms already applied. And newly-created state powers may generally be subject to preexisting federal preemption power (as in the Twenty-First Amendment) unless the constitutional text otherwise makes clear.

More Questions and Answers Will Undoubtedly Arise

As the debate over the wisdom and feasibility of a constitutional amendment and/or the ELECT Act continues, additional arguments and historical research may emerge that could alter my views. For now, though, I continue to believe that some version of the Act is preferable to the current form of the proposed constitutional amendment, and that the Act falls within Congress' constitutional powers.


Vikram David Amar, a FindLaw columnist, is the Associate Dean for Academic Affairs and Professor of Law at the University of California, Davis School of Law. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher. His Congressional testimony this week on the subject of Senate vacancies can be viewed at: http://judiciary.senate.gov/hearings/hearing.cfm?id=3705.

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