Why Letting Governors Appoint Senators Isn't Such a Bad Idea

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By Joshua Spivak
Thursday, December 18, 2008

The scandal of Illinois Gov. Rod Blagojevich's alleged attempt to sell Barack Obama's Senate seat, and the much smaller controversies surrounding open seats in New York and Delaware, have led to questions about the way most states replace senators who leave office early -- by direct gubernatorial appointment. Is this really a good way to fill such an important elective office?

Illinois is scrambling to change its laws and deprive the tainted Blagojevich of the power to make a Senate pick, and given all the controversy, other states may follow. The main alternative under consideration is the special election, because it passes two basic tests -- the fairness test (by including any candidate who can get on the ballot) and the democracy test (by letting voters do the selecting). But dig a little deeper, and it becomes apparent that special elections have problems of their own.

Two of these are procedural. The first is that, done right, a special election would take months to carry out, leaving the state without a key legislative representative. By contrast, a governor can fill a Senate seat in almost no time. The second problem is the expense. Statewide special elections cost tens of millions of dollars, a considerable concern at times -- such as now -- when state budgets are under strain.

But there are hidden, and more fundamental, problems, too. Turnout for special elections is dramatically lower than it is for general elections. This shouldn't be a surprise -- voters have to care enough to come out for just one race, while on Election Day the presidency or a governorship may also be on the line. A perfect example was the recent Georgia runoff. This was a high-profile race, yet turnout was only a little more than half what it had been just 30 days before. Similarly, recall votes for state legislators, to cite one of the more regularly occurring special elections in the 18 states where they're allowed, typically attract a quarter to half as many voters as regular elections. Therefore winners are chosen by a seriously skewed electorate -- generally the most committed or more extreme members of each party.

A second problem involves primaries. Even in places that require special elections, there may be no requirement that parties hold primaries, giving party leaders a disproportionate role in making the selection. In states where one party dominates, that party's choice can be tantamount to an appointment. In New York, this method has been used and abused both for congressional representatives and state and local politicians. Sometimes, officials appear to time resignations in order to force a special election -- and ensure that a chosen successor has an easy path to victory.

Gubernatorial appointments, on the other hand, have two advantages over special elections, despite the obvious, Blagojevichian dangers they present. One is that governors can be held accountable for their choices. Witness Alaska. After scanning the list of possible candidates, newly elected Gov. Frank Murkowski chose his own daughter to succeed him in the Senate in 2002. At least in part because of this blatant nepotism, the governor was tossed out of office by Republican primary voters, and Sarah Palin, in 2006.

The other advantage is that most gubernatorial appointees don't hold on to their seats. Over the past 50 years, around 40 percent of the senators selected by governors have won election to their own terms, a minuscule percentage compared with the 81 percent of incumbents who win reelection contests. Such a high failure rate may seem bad, but in fact it is very encouraging. It suggests that voters, and the other elected officials who mount primary challenges to these nonelected senators, do not automatically grant them the deference that accrues to incumbency.

But voters may not have the same hesitation to give knee-jerk support to special election victors. Despite the fact that such senators generally arrive in office on the votes of a very small percentage of those eligible, they will still be the "incumbent," as in an official who has won the imprimatur of the voters. The result is likely to be a much greater, if undeserved, chance of victory in the next general election.

Special elections may sometimes be preferable to the gubernatorial selection, especially this year in Illinois, but they still have serious problems. The reality is that there may be no good way to replace a departing elected official when there is no regularly scheduled election.

Joshua Spivak, a public relations executive and lawyer, is a research fellow at the Hugh L. Carey Center for Government Reform at Wagner College.


© 2008 The Washington Post Company

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