The Proposal to End Gubernatorial Appointments of Replacement Senators: Reform In This Area May Be Needed, But the Feingold Constitutional Amendment Needs More Thought
	By VIKRAM DAVID AMAR AND MICHAEL SCHAPS
	Friday, March 13, 2009

Rod Blagojevich's name no longer adorns state buildings in Illinois, but he may yet leave an indelible mark someplace even more impressive: the United States Constitution. The hash Blagojevich made of appointing someone to fill the Senate seat vacated by President Obama has helped inspire Wisconsin Senator Russ Feingold (among others) to propose a constitutional amendment to end gubernatorial appointments of replacement senators altogether. (To be fair, many other governors and former governors also share some responsibility—including Alaska's Frank Murkowski, who appointed his own daughter, and New York's David Paterson, whose selection of a replacement for Senator Clinton was a public relations fiasco.) In this column, after we assess the status quo and the proposed constitutional amendment, we endorse a third option—a Congressional statute.

The Status Quo, Senator Feingold's Proposal, and the Problems with the Proposal

As things stand, the Seventeenth Amendment permits (but does not require) state legislatures to empower governors to fill Senate vacancies by appointment, and all but a few state legislatures have accepted the invitation. Senator Feingold's proposed amendment would mandate that all such vacancies be filled only by popular election.

Let us begin by making clear that we fully agree with the premise of the proposed constitutional amendment: there is ordinarily no better way to pick senators than through popular election. But there are problems with eliminating temporary appointment power altogether, and thus we are not on board with Senator Feingold's proposed amendment in its present form.

The first difficulty arises because elections take time. According to a 2003 report by the Continuity of Government Commission, "under ideal circumstances, states could hold elections within two months [of an unanticipated House or Senate vacancy] if they dispensed with party primaries and drastically accelerated other aspects of the campaign." Perhaps so, but a more realistic timeframe is probably at least three months, and maybe more in big states where a statewide Senate campaign involves raising huge sums of money for all but super wealthy self-funded candidates. Three months or more may not sound like a long time, but a delay of this length in filling vacancies can matter a great deal when, as has been the case of late, the partisan balance in the Senate is close. This is especially true in light of the modern overuse of filibusters and other supermajority rules and conventions. Recent experience concerning the passage of this year's stimulus package highlights how even one vacant seat from Minnesota and/or one disability from the Massachusetts contingent can shape momentous legislation.

Furthermore, delay in filling Senate vacancies runs the risk of magnifying the antidemocratic consequences of giving each state—no matter how populous—the same number of Senate seats. It is counter-intuitive enough that large states like New York and Texas should receive no more voice in the Senate than small states like Hawaii and Alaska, but the possibility that California should have half the voice of Wyoming for any appreciable period of time borders on the surreal. Can you imagine how weird it would have been if, say, Texas had one vote in the Senate on the stimulus package and Vermont had two? (In this respect, vacancies in the Senate raise different problems than vacancies in the House, and argue for possibly different treatment.)

The problem of vacancies lasting months is, of course, exacerbated substantially by the specter of terrorism in a post-9/11 world. As Professor Sandy Levinson has observed, "[u]nfortunately, it is not fanciful to imagine an attack on Washington that would kill dozens of senators." Without some mechanism for replacing senators quickly following a major disaster, a number of states or even parts of the country might lack Senate representation just when the country most needs a fully functioning government. At a minimum, then, any constitutional amendment in this area should have a provision (absent in the current proposal) for a fallback mechanism that is triggered by some declaration of national emergency or some numerical threshold of Senate vacancy.

A second problem of special elections, related to but beyond the question of delay, is the question of voter turnout. Voter turnout for special elections tends to be far lower than for general elections. To cite but one recent, if perhaps somewhat demographically unusual, example of seeming relative apathy in a special election, the voter turnout in the election held to fill only the U.S. Senate seat in Georgia last December was about one-half of the turnout in the regularly-scheduled November election just a month earlier—and this low December turnout occurred despite the general understanding that the special election's results could determine whether Democrats would have a filibuster-proof majority in the Senate. The democratic virtues of selecting senators by special election are at least somewhat compromised if few citizens actually show up to vote.

Of course, Senator Feingold's proposed constitutional amendment does not require special elections to fill Senate vacancies; it requires only that elections—special or regularly scheduled—be the exclusive means of filling such vacancies. But the longer a state waits to have a vacancy-filling election—to save costs by consolidating the vacancy-filling election with an already-scheduled one and/or to increase voter turnout by combining the vacancy-filling election with other important decisions about which voters care—the longer the state (and the nation) must suffer the consequences of that state being under (or un- , in the case of a dual vacancy) represented in the "greatest deliberative body on earth."

Recognizing and balancing these concerns, almost all states have chosen to create temporary appointment power, rather than use only elections to fill Senate vacancies. It bears noting that under the current Constitution, states are not obligated, but rather are merely authorized, to create temporary appointment power. And yet nearly all have. We believe there is wisdom in the extremely common practice of states.If, then, as seems prudent, there should be some mechanism, either generally available or at the very least triggered by national emergency, for prompt vacancy-filling, we turn to the question of which branch of government is best suited to discharge the vacancy-filling power. Temporary gubernatorial appointment authority seems better than any of the alternatives. Governors are superior to state legislatures (and other bodies) here because Governors (unlike legislatures, whose district lines are manipulated for partisan and other reasons) are elected by and directly accountable to the exact same statewide electorate that elects senators. For this reason, persons appointed to the Senate by Governors are not, as some have suggested, inherently illegitimate. Moreover, Governors can gather information privately about possible candidates and act quickly when time is of the essence, which makes them the best people for the job of quickly filling vacancies.

Why A Statutory Solution Is Preferable to a Constitutional One In This Context, And What the Statute Should Require

Thus, we do not favor amending the Constitution to mandate that Senate vacancies always be filled by popular election. But this is not to say that the current state of affairs with respect to the filling of Senate vacancies cannot be improved. Congressman Aaron Schock (R-Ill.) has proposed a bill currently entitled the "Ethical and Legal Elections for Congressional Transitions (ELECT) Act, which 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 some money to help defray the costs of special elections.

Although one might quarrel with some of the proposed statute's details (including the choice of 90 days, rather than 120 or 150 days, etc.), we believe the basic approach is sound and that a statute would be preferable to a constitutional amendment in this area. A statute would be easier to enact than a constitutional amendment, and could also be more easily perfected in the coming years as more information is gathered based on actual experience in the states. In general, the only substantial reason to prefer constitutional amendment to statutory enactment would be to lock in the new legal regime and prevent Congress from subsequent legislative amendment or repeal. But we see no reason to distrust Congress in this particular area, and any subsequent statutory amendment would probably be an attempt to act on new information, rather than an illicit Congressional effort to undo a worthy law.

An important issue becomes, then, would a law such as ELECT be constitutionally permissible? We think it would. Congress, under the original Constitution, had the power to regulate the timing of all Senate elections conducted by state legislatures, including elections conducted by state legislatures to fill unexpected vacancies. Indeed, Congress in 1866 passed an Act that regulated the manner and timing of all state legislative elections of U.S. senators. The Act said that whenever there was a Senate vacancy of any kind, both houses of a state legislature, on the second Tuesday they were in session, must vote to fill the vacancy, and if no person was elected, both houses must continue to vote on this question at least once each and every day thereafter of the legislative session.

Do the text and timing of the Seventeenth Amendment change any of this? Probably not. As for text, it is true that the last words of the vacancy-filling provision of the Seventeenth Amendment—"by election as the legislature may direct"—suggest that state legislatures enjoy discretion. To be sure, the phrase "as the legislature[] thereof may direct" used elsewhere in the Constitution connotes broad independence and leeway. But the key point here is that in those other contexts, state legislative discretion is not superseded by the explicit Congressional power embodied in Article I, Section 4. Article I, Section 4 itself says state legislatures have power to prescribe times, places and manners—broad leeway—but that such power can be overridden by Congressional exercise. So even though the "as the legislature may direct" language of the Seventeenth Amendment connotes state legislative power, if that power is constrained by Article I, Section 4, then the Seventeenth Amendment provides no barrier to statutes like ELECT Act.

But can we apply Article I, Section 4 Congressional power to a provision of the Constitution enacted after Article I was adopted? Grammatically, we surely can. Article I, Section 4 speaks broadly of Congress' power to "alter or make" "at any time" the regulations concerning the time of "holding elections for Senators and Representatives"—not just some temporal or geographical subset of senators or representatives.

Moreover, there seems to be no question that we can and do apply Article I, Section 4 to regularly-scheduled (every six year) Senate elections held by the people of each state, even though these popular elections are created and provided for only in the Seventeenth Amendment, adopted after Article I, Section 4. And there is nothing in the text of the Seventeenth Amendment that distinguishes regular popular elections from vacancy-filling popular elections. If Article I, Section 4 applies to the former, it ought to apply to the latter as well, and there are no words in, or legislative history of, the Seventeenth Amendment to suggest otherwise.

Indeed, the legislative history strongly favors applying Article I, Section 4 to all of the Seventeenth Amendment's provisions. Southern senators attempted, during the latter-stage debates over the Seventeenth Amendment, to insert language that would have freed popular elections of senators from Congressional control under Article I, Section 4. Although these attempts ultimately failed, the members of Congress who debated the matter at length seemed to assume and/or agree that without such language qualifying the Seventeenth Amendment, all of the popular elections it provided for would indeed be subject to Congressional Article I, Section 4 time-and-manner oversight. And even though the subjective understandings of the Amendment's drafters may not necessarily bind us today, their public proclamations of those understandings certainly informed what intelligent observers of the day likely understood the words to mean.

Finally, it bears noting that in the only other instance in which the post-1789 Constitution explicitly empowers states to do something they lacked power to do beforehand—the Twenty-First Amendment—the newly created state power is subject to preexisting federal legislative power to preempt. Section Two of the Twenty-First Amendment empowers states to create essentially federal laws concerning the in-state importation and distribution of alcohol, and yet the Supreme Court has held that this state empowerment does not abrogate Congress' Commerce Clause powers with regard to liquor.

The ELECT Act Is Very Likely Constitutional, and a Superior Solution to the Proposed Amendment

For these reasons, the ELECT Act is very probably constitutional, and thus in our view preferable to changing the Constitution. And if there were any doubt about whether a statute such as the ELECT Act might be struck down, a fallback severability clause could easily be added, to the effect that if the requirement of a 90-day election were to be invalidated, then any state that chose not to comply with the 90-day timeline would lose not only federal funding for its special elections, but also federal funding for a large subset of its elections more generally.

Senator Feingold is rightly critical of the way in which certain governors have handled the appointment of replacement senators, and he is right that it is almost always preferable for replacement legislators to be elected, rather than appointed. But doing away with the appointment power altogether is too drastic a remedy, as is a constitutional amendment. State legislatures should continue to have the option of empowering governors to make temporary Senate appointments, at least under some circumstances. A statutory tweak is in order, but we should try that before amending the Constitution.

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.

Michael Schaps is a litigation associate with Howard Rice Nemerovski Canady Falk & Rabkin in San Francisco. He is a 2006 graduate of Boalt Hall (where he was Vik Amar's student), and he clerked for Chief Judge David F. Levi of the Eastern District of California and Judge Pamela Ann Rymer of the Ninth Circuit.