Lawmakers Weigh Amendment to End Gubernatorial Appointments to Senate

After a presidential election that helped spark the appointment of four senators and a burst of related controversy, key lawmakers met yesterday to mull whether the Constitution should be amended to prevent history from repeating itself.

A pair of House and Senate Judiciary subcommittees debated a proposed constitutional amendment that would end the practice of allowing governors to make interim appointments to fill vacant Senate seats, instead requiring that all such openings be filled via election.

Sen. Russell Feingold (D-Wis.), the original sponsor of the amendment, said the change was necessary to fix "a constitutional anachronism."

"I believe that those who want to be a U.S. senator should have to make their case to the people whom they want to represent, not just the occupant of the governor's mansion," Feingold said.

The 17th Amendment, ratified in 1913, provides for the direct election of senators -- previously, they had been chosen by state legislatures -- but also allows states to give their governors the authority to make "temporary appointments" to fill vacant seats until elections are held.

After then-Sen. Barack Obama was elected president in November, governors filled vacant Senate seats in four states -- Colorado, Delaware, Illinois and New York -- and the scramble to replace Obama in Illinois was particularly notorious. Then-Gov. Rod Blagojevich (D) was accused of trying to sell the seat in exchange for favors and campaign contributions. The embattled governor was eventually impeached and booted from office, but not before he sparked an uproar by naming Roland W. Burris (D) to the seat.

Rep. F. James Sensenbrenner Jr. (R-Wis.) yesterday called the structure "not only undemocratic but prone to abuse," and Bob Edgar, president and chief executive of the advocacy group Common Cause, said that the system "has proven to be broken."

But Rep. Jerrold Nadler (D-N.Y.) said he worried that, particularly in states such as California and New York, where it is expensive to campaign, a quick special election would make it nearly impossible for a non-wealthy candidate to raise enough cash to be competitive. The proposal, Nadler said, "might tend to make the Senate, more than it is already, a body of millionaires and celebrities."

Other critics at the hearing argued that an amendment would be an infringement on states' rights and noted that among the 184 Senate appointments since 1913, there has been only one documented case involving allegations of corruption. "Should we let one bad governor in Illinois make us change everything?" Rep. Louie Gohmert (R-Tex.) asked.

Freshman Rep. Aaron Schock (R-Ill.) offered a compromise -- a measure that would change the law, not amend the constitution, by requiring states to hold an election to fill an open Senate seat within 90 days of the vacancy. But it would leave in place the governor's authority to appoint a temporary senator until the election is held.

"This is a simple alternative," Schock said, that will "get us to where we want to go much quicker and cleaner" than a constitutional amendment.