1.30.2009

More on Feingold's Proposed Amendment

I'm not surprised that a number of people support Russ Feingold's proposed amendment to the U.S. constitution that would force all states to hold special elections to fill Senate vacancies that occur mid-term.  Most of them take a simplified recent-news-imbued view that a federal constitutional mandate is the best way to address a perceived problem (I don't).

I am very surprised, however, to see blogger James Wigderson supporting Feingold's move.

His explanation does not mention a concern for the principles of federalism whatsoever, focusing instead on a parade of horribles and concerns about dynastic appointments - which could nonetheless be prevented if individual states were left to choose a special election option in their own constitutions (as they are now).

Like John Nichols, oddly enough, he leans heavily on the 17th Amendment, but doesn't seem to have read beyond the first clause of the provision.  Yes, that amendment did shift the Senator selection power to state electorates from state legislatures for regularly scheduled replacement elections.  But read the text of the 17th - it's very clear about reserving choice to state legislatures and the executives of states in the event of temporary appointments to fill vacancies:

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.

I believe the varied responses by states that grew up to fill the small gap that remained - what to do in the event of a vacancy in the middle of a term - balances the original intent of the Framers to have the U.S. Senate act as a more stable, less populist body with the 17th Amendment's transfer of power for most elections to a direct vote of the people.  

The specific textual outlining of this indirect process in the 17th Amendment makes Feingold's desired change all the more radical and ill-advised - he's not just seeking to clarify, he's seeking a wholesale revision of the balance set up in the Amendment.  

The bottom line: no state today is barred from having special elections to replace U.S. Senators.  Wisconsin has already enshrined this choice in its constitution.  If voters in New York think the Gillibrand pick was an outrageous affront, then they should amend their own constitution.  For now, state electorates seem content with replacing most appointed senators.

Moreover, unlike Wigderson, I don't think that the popular election process eliminates the idea that someone "paid" for a seat.  The number of hyper-wealthy individuals in the Senate - see Herb Kohl - makes the perception of winning a seat through an election just as tainted by money as an appointment.  An appointment would be made by a duly elected governor - only one step removed from the people.  And, as I've written before, a sane governor will make a politically palatable appointment for fear of risking his or her own political future with a controversial crony pick.  And, as we saw with Governors Murkowski and Blagojevich, the people catch on.

In the end, I think Wisconsin blogger Ann Althouse has the far better understanding of the issue.  Or as Sam Sarver sums it up:

To put it mildly, I think such an amendment is entirely unnecessary.