For Immediate Release
/ January 29th 2009

Senate Vacancies

A FairVote Policy Perspective

Facts in the Spotlight:

Number of U.S. Senators appointed without election since the ratification of 17th Amendment: 182
Number of U.S. House members ever to serve without election: 0

Number of states that always fill U.S. Senate vacancies by election: 4
Number of states that always fill U.S. House vacancies by election: 50
_ _ _

Wafting through the Winds of Change is the stench of 19th century political gamesmanship and cronyism:  The undemocratic and undignified scrum among our country's political insiders -- to fill four prominent US Senate vacancies -- would have been familiar to Americans of 100-plus years past, when all Senators were appointed by the powerful.

Illinois Governor Rod Blagojevich's arrest for trying to trade his selection of a candidate to fill Barack Obama's Senate seat for favors or money -- and his eventual appointment of Roland Burris to the Senate -- simply underscores the antidemocratic and anachronistic nature of so many state laws giving governors this undue power.

Almost equally disturbing has been the spate of other recent vacancy appointments:

-With the assent of Delaware's governor, Joe Biden's chief of staff will keep his boss's seat warm, so Biden's son may walk into it in a couple of years.

-Members of the Cuomo, Kennedy, and even the Clinton clans were mentioned as potential replacements for Hillary, before New York Governor David Patterson (who was not elected to the office he holds) surprisingly appointed little-known Kirsten Gillibrand.

-Michael Bennet -- the superintendent of Denver's public schools, who has never held elected office -- has taken the Senate seat that had been held by new Interior Secretary Ken Salazar.

The latter three processes haven't been corrupt as such, but with a reinvigorated democratic spirit, the world's oldest republic can hardly pride itself in such institutionalized, concentrated power:  Perhaps these appointees will make for wonderful senators -- but it should be up to their potential constituents to decide if they should have the opportunity.

(Note that we only narrowly missed the fiasco that would've been, had newly-convicted Alaskan Senator Ted Stevens -- himself initially appointed -- won re-election.)

And more vacancies will come: Departures for any of a number of reasons -- appointments to cabinet posts, runs for other offices, scandal, poor health, or death -- mean that the Senate yields a regular rhythm of vacancies.  In fact, nearly one-quarter of senators who have first taken office after the ratification of the 17th amendment (182/788) have achieved office via gubernatorial appointment.

The 17th Amendment required that Senators usually be elected by the people -- but also allows governors to make appointments to fill vacant senate seats:

"When vacancies happen in the representation of any State in the Senate, the executive authority of each 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."

Only four states -- Massachusetts, Oklahoma, Oregon, and Wisconsin -- never allow for gubernatorial appointments.  Eight other states call for quick special elections, but allow for temporary gubernatorial appointments, until the resolution of said election.  The remaining states allow governors to make appointments, though sometimes with restrictions (such as requiring the the appointee be of the same party as the senator who held the seat immediately prior).

The Solution:

We advocate requiring quick special elections for all Senate vacancies, perhaps allowing for (very brief) temporary appointments during the period between the vacancy and the election.  Such reforms could be enacted state-by-state or incentivized by the federal government.  Or we could enact a new Constitutional amendment, as has been proposed by Senator Russ Feingold, in response to the recent outcry.

Special elections can yield clogged fields of candidates where vote-splitting may make unclear which is preferred by the most voters.  But traditional runoffs are expensive and see relatively low voter turn-out.  Instant runoff voting compresses a runoff into the general election, by allowing voters to rank candidates in order of preference: It's used by governments and  organizations all over the world -- and increasingly so in the United States.  It should be considered here, as we strive to reclaim power from insiders and elect Senators with genuine popular support.  IRV can also be used to combine a primary election with a general, allowing for vacancies to be filled as quickly as possible.

Additional Resources:

Appointed Senators Since 1913

Breakdown of How States Fill Vacancies

Sen. Russ Feingold's Press Release

New York Times Op-Ed by FairVote's David Segal