9.08.2009

Dear Sen. Feingold and Rep. Sensenbrenner - Voters Already Have the Final Say on Senate Vacancies

The United States Constitution should not be amended lightly, but cautiously, and infrequently. Only if a truly pressing problem of great importance rears its head should we resort to altering our founding charter - the structural hurdles put in place by the Framers speak to the wisdom of this view.

Unfortunately, Senator Russ Feingold and Congressman Jim Sensenbrenner continue to press for a constitutional amendment to mandate that states fill Senate vacancies through a popular vote instead of through whatever process the state chooses, a process currently enshrined in the Constitution through the Seventeenth Amendment.

Feingold and Sensenbrenner's amendment is unnecessary. Feingold argues that "It is time to guarantee the American people that they will always have the final say on who represents them in Congress."

Senator, the American people already have the final say on who represents them in Congress.

The Seventeenth Amendment leaves the Senate vacancy problem almost entirely up to individual state legislatures. This flexibility permits citizens, through their highly local representatives, to determine what is most important to them. If they value having immediate, continued representation, they can opt for a gubernatorial appointment system that permits a governor - which a majority of the state elected - to appoint a replacement Senator immediately.

Feingold says that governors will naturally appoint a crony, as Rod Blagojevich did, that the appointee will not serve the people, being beholden to the governor. That speaks to the choice of governors by the people, though. What's more, appointees must eventually face re-election. So even if they don't perform adequately, they will be replaced by the electorate soon enough.

If a majority of voters in a state believe that having a legitimizing vote of the electorate of a state determine the replacement is most important, they ALREADY have the power to select that option. Massachusetts found out the hard way post-Kennedy that that option also impedes them from getting a replacement into Congress rapidly when key legislation is in progress. A special election to replace a vacant Senate seat takes some bare minimum amount of time - I believe Feingold's bill has a minimum of 30 days. One could critique that short of a time period for lack of notice - the electorate would likely be so uninformed that it might make just as poor of a choice as a governor acting swiftly.

Senator Feingold, in his Politico piece, trumps up a parade of recent vacancy horribles, acting as though the Constitution had failed to address the prospect of Senate vacancies. He even joins Senator Harry Reid in attempting to use Senator Ted Kennedy's death for political purposes. But the Constitution did address the possibilities Feingold raises. It's all in the Seventeenth Amendment. And the citizens of individual states presently have all the powers necessary - to do exactly what Feingold says needs to be done by taking the rather drastic step of amending the U.S. Constitution.

We should leave things up to them, to the citizens of the states. They determine whether their state legislators remain in office. They determine whether their governor remains in office. Thus, they have sufficient rein over the actors that determine their individual state's policy on filling vacancies.

The proposed amendment is entirely unnecessary and I think it's ill-advised as a result.