Wednesday, February 4, 2009

The 28th Amendment

Constitutional amendments are much like bills, only rarer (they are submitted all the time and almost never passed or implemented). The right to life amendment to the Constitution craze that hit DC back in the early '80s, which died out almost as quickly as it started, the periodic protestations about our electoral college, which never amount to anything, are but some of the examples of how little success they ever have.

Nevertheless, I have hopes for Senator Feingold's proposal to require openings in the US Senate to hold elections, outlawing appointments. It should be self-evident after the disasters in New York and Illinois in appointing Senators (both of whom are no-names and one of them put in office by a future felon). I am not sure why this is such a problem. It could be they want to appoint supporters or loyalists, and end up finding obscure figures (like Governor Paterson's choice) to do their bidding for them. The problem is that it is highly un-democratic.

Here is Senator Feingold's introduction of his amendment.

Statement of U.S. Senator Russ Feingold on Introduction of a Constitutional Amendment Concerning Senate Vacancies

Thursday, January 29, 2009

Mr. President, our founding fathers did a remarkable job in drafting the United States Constitution and the Bill of Rights. Their work was so superb that in the 217 years since the ratification of the Bill of Rights, the Constitution has only been amended 17 times. But every so often, a situation arises that so clearly exposes a flaw in our constitutional structure that it requires a constitutional remedy.

Over the past several months, our country has witnessed multiple controversies surrounding appointments to vacant Senate seats by governors. The vacancies in Illinois and New York have made for riveting political theater, but lost in the seemingly endless string of press conferences and surprise revelations is the basic fact that the citizens of these states have had no say in who should represent them in the Senate. The same is true of the recent selections in Delaware and Colorado. That is why I will introduce today a constitutional amendment to end gubernatorial appointments to the U.S. Senate and require special elections to fill these vacancies, as is currently required for House vacancies. I am pleased that the recently elected Senator from Alaska, Senator Begich, and the distinguished senior Senator from Arizona, Senator McCain, have agreed to be original cosponsors of the amendment.

I do not make this proposal lightly. In fact, I have opposed dozens of constitutional amendments during my time in the Senate, particularly those that would have interfered with the Bill of Rights. The Constitution should not be treated like a rough draft. Constitutional amendments should be considered only when a statutory remedy to a problem is not available, and when the impact of the issue at hand on the structure of our government, the safety, welfare, or freedoms of our citizens, or the survival of our democratic republic is so significant that an amendment is warranted. I believe this is such a case.

In 1913, the citizens of this country, acting through their elected state legislatures, ratified the 17th Amendment to the Constitution. Our esteemed colleague Sen. Byrd, in Chapter 21 of his remarkable history of the United States Senate, lays out in fascinating detail the lengthy struggle to obtain for the citizens of this country the right to elect their Senators. The original Constitution, as we all know, gave state legislatures the right to choose the Senators for their states. While the first proposal to amend the Constitution to require the direct election of Senators was introduced in the House in 1826, the effort only really picked up steam after the Civil War.

As Sen. Byrd recounts: “In the post-Civil War period, state legislatures became increasingly subject to intimidation and bribery in the selection of Senators.” Nine cases of bribery came before the Senate between 1866 and 1906. And between 1891 and 1905, the state legislatures from 20 different states deadlocked 45 times when trying to pick a Senator. At one point, a Senate seat from Delaware remained vacant for four years because of deadlocks.

The political theater occasioned by these Senate appointment fights dwarfs even the extraordinary events we have witnessed in recent months. Sen. Byrd quotes from an account by the historian George Haynes about efforts to select a Senator in Missouri in 1905:

Lest the hour of adjournment should come before an election was secured, an attempt was made to stop the clock upon the wall of the assembly chamber. Democrats tried to prevent its being tempered with; and when certain Republicans brought forward a ladder, it was seized and thrown out of the window. A fist-fight followed, in which many were involved. Desks were torn from the floor and a fusillade of books began. The glass of the clock-front was broken, but the pendulum still persisted in swinging until, in the midst of a yelling mob, one member began throwing ink bottles at the clock, and finally succeeded in breaking the pendulum. On a motion to adjourn, arose the wildest disorder. The presiding officers of both houses mounted the speaker’s desk, and, by shouting and waving their arms, tried to quiet the mob. Finally, they succeeded in securing some semblance of order.

Popular sentiment for direct election of Senators slowly grew in response to events like these. Some states held popular referenda on who should be Senator and attempted to require their legislatures to select the winners of those votes. More and more Senators were chosen in such processes, leading to more support in the Senate for a constitutional amendment. Congress finally acted in 1911 and 1912. There was high drama in the Senate as Vice President James Schoolcraft Sherman broke a tie on a crucial substitute amendment offered by Senator Joseph Bristow of Kansas during Senate consideration of the joint resolution. A few days of parliamentary wrangling ensued over whether the Vice President’s tie breaking role in the Senate extends to such situations, and that precedent still stands today. In May 1912, an impasse of almost a year was broken and the House receded to the Senate version of the amendment, allowing it to be sent to the states for ratification. Less than a year later, on April 8, 1913, Connecticut became the 36th state to ratify the amendment, and it became the 17th Amendment to the Constitution.

I recount this summary of the history of the 17th Amendment, and again, I commend to my colleagues Sen. Byrd’s chapter on the subject, first to make the point that even though it seems obvious to us that the Senate should be elected by the people, the struggle for that right was not easy or fast. But the cause was just and in the end the call for direct elections was too strong to be ignored. I believe the same result will occur here. It may take time, but in the end, I am confident that the principle that people must elect their representatives will prevail.

Second, this history shows that the public’s disgust with the corruption, bribery, and political chicanery that resulted from having Senators chosen by state legislatures was a big motivation for passing the amendment. Gubernatorial appointments pose the same dangers, and demand the same solution – direct elections.

Finally, the history indicates that the proviso in the 17th amendment permitting gubernatorial appointments to fill temporary vacancies was not the subject of extensive debate in the Congress. The proviso originated in the substitute amendment offered by Senator Bristow. The Bristow substitute was designed, its sponsor explained, to “make[] the least possible change in the Constitution to accomplish the purposes desired; that is the election of Senators by popular vote.” Most significantly, it deleted a provision in the resolution as originally introduced that year that would have amended Article I, section 4 of the Constitution to remove Congress’s supervisory authority to make or alter regulations concerning the time and manner of Senate elections.

The proviso, explained Sen. Bristow, “is practically the same provision which now exists in the the case of such a vacancy. The governor of the State may appoint a Senator until the legislature elects.” Although significant debate over other provisions in the Bristow amendment is found in the Record before the climactic tie vote, which was broken by the Vice President, there seems to have been no further discussion of the proviso.

Thus, it appears that the proviso was simply derived from the original constitutional provision in Article I, Section 3, which gave the power to choose Senators to the state legislatures, but allowed governors to appoint temporary replacements when the legislatures were not in session. It was unremarkable at the time of the 17th Amendment to allow governors to have the same temporary replacement power once direct elections were required. That would explain the apparent lack of debate on the question. The long and contentious debate over the amendment was dominated by much more basic issues, such as whether the people should elect their Senators at all, and whether Congress should also amend the “time, place, or manner clause” of Article I, section 4.

Nearly 100 years later, that proviso has allowed a total of 184 Senators to be appointed by governors, and we have a situation in today’s Senate where the people of four states, comprising over 12 percent of the entire population of the country, will be represented for the next two years by someone they did not elect. It is very hard to imagine that the Congress that passed the 17th Amendment and the states that ratified it would have been comfortable with such an outcome. Indeed, some argue that the intent of the 17th Amendment was that temporary appointments to fill early vacancies should last only until a special election can be scheduled, rather than for an entire two-year Congress until the next general election. A number of states have adopted that approach, but many have not.

That is not to say that the people appointed to Senate seats are not capable of serving, or will not do so honorably. I have no reason to question the fitness for office of any of the most recent appointees, and I look forward to working with them. But 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. And the voters should choose them in the time-honored way that they choose the rest of the Congress of the United States.

I want to make it clear that this proposal is not simply a response to these latest cases that have been in the news over the past few months. These cases have simply confirmed my longstanding view that Senate appointments by state governors are an unfortunate relic of the pre-17th Amendment era, when state legislatures elected U.S. Senators. Direct election of Senators was championed by the great progressive Bob La Follette, who served as Wisconsin’s Governor and a U.S. Senator. Indeed, my state of Wisconsin is now one of only four states (Oregon, Massachusetts, and Alaska are the others) that clearly require a special election to fill a Senate vacancy in all circumstances.

The vast majority of states still rely on the appointment system, while retaining the right to require direct elections, as the Massachusetts legislature and the voters of Alaska have done in recent years. But changing this system state by state would be a long and difficult process, even more difficult than the ratification of a constitutional amendment, particularly since Governors have the power to veto state statutes that would take this power away from them. Furthermore, the burden should not be on Americans to pass legislation in their states protecting their fundamental voting rights – the right to elect one’s representatives is a bedrock principle and should be reaffirmed in the nation’s ruling charter.

We need to finish the job started by La Follette and other reformers nearly a century ago. Nobody can represent the people in the House of Representatives without the approval of the voters. The same should be true for the Senate.

In the several days since I announced my intention to introduce this amendment, I have heard a number of arguments raised against it. I would like to briefly address them. First of all, some suggest this amendment is an overreaction to the headlines of the day. But there are several precedents for amending the provisions of the Constitution that relate to the structure of government based on specific events. The 22nd Amendment, limiting the presidency to two terms, passed in 1951 in response to President Franklin D. Roosevelt’s four-term presidency. And the 25th Amendment, revising presidential succession, was passed in 1967 in response to confusion that occurred after the assassination of President Kennedy. If events demonstrate that there is a problem with our government structure, sooner or later we must take steps to address those problems. There is no better time to do that than when the effects of the structural flaw are most evident and most prominently part of the public debate.

Another objection I have heard to this proposal is the potential financial burden on the states that must pay for special elections. As someone with a reputation for fiscal discipline, I always consider a proposal’s impact on the taxpayer. But the cost to our democracy of continuing the anachronism of gubernatorial Senate appointments is far greater than the cost of infrequent special elections. And weighing the costs associated with the most basic tenet of our democracy – the election of the government by the governed – sets us on a dangerous path. Besides, the Constitution already requires special elections when a House seat becomes vacant, a far more frequent occurrence since there are so many more Representatives than Senators. I find the cost argument wholly unconvincing.

Another argument I have heard is that special elections garner very low turnouts, or favor wealthy or well known candidates. They are not particularly democratic, the argument goes. And that may very well be true. But they are a whole lot more democratic than the election held inside the mind of one decisionmaker—the governor. Special elections may not be ideal, but they are elections, and every voter has the opportunity to participate. As Winston Churchill said, “It has been said that democracy is the worst form of government except all the others that have been tried.”

I have also heard the argument that the candidates for the special election will be selected by party bosses because there won’t be time for a primary. That is simply not true. Under this amendment, each state can decide how to set up its special elections. My home state of Wisconsin provides for a special election within about 10 weeks of the vacancy, with a primary one month earlier. It’s a compressed schedule to be sure, because the state doesn’t want to be without representation for too long. But it can be done. I would hope that most states would want to hold primaries, but the point of this amendment is to make clear that only Senators who have been elected by the people can serve, not to micromanage how the states want to implement that requirement.

Mr. President, I believe the core issue here is whether we are going to have a government that is as representative of and responsive to the people as possible. The time to require special elections to fill Senate vacancies has come. Congress should act quickly on this proposal, and send it to the states for ratification.


There are some progressives and liberals who question the Constitutionality of this proposal, surprisingly enough (since it was progressives who were the ones that pushed for direct elections of Senators over a century ago). True, the framers opposed such democratic tendencies. They also opposed direct elections for the Senate, which was not done away with until 1913. It seems much fairer than having a crook pick a crony with his own living mausoleum.

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