Give voters final say on vacancies

By Sen. Russ Feingold and Rep. David Dreier
Published September 8th 2009 in Politico

The death of Senate icon Ted Kennedy did more than leave a huge void in the Congress. It brought the issue of Senate vacancies back into the national discourse. 

Massachusetts now joins the ranks of Illinois, New York, Delaware, Colorado and Florida in grappling with the question of how to fill unexpected Senate vacancies. A Texas vacancy may also be imminent. 

We are on the verge of a situation that’s been unique since the ratification of the 17th Amendment to the Constitution nearly a century ago: More than a quarter of the American people may soon be represented by senators who have not been elected. 

Contrast that with the vigorous debate going on in our states and districts about important issues such as health care reform. Citizens are more engaged than ever, yet they are repeatedly being barred from electing the senators who will vote on the issues they care about most. 

This challenge gained new urgency earlier this year when several unexpected Senate vacancies occurred because of the election of senators to the presidency and vice presidency, as well as their selection of colleagues to fill key Cabinet positions. The controversies surrounding some of the appointments made after the 2008 election, including then-Illinois Gov. Rod Blagojevich’s alleged attempt to sell the seat formerly held by President Barack Obama, are well-known. 

As a result, we introduced a constitutional amendment requiring the direct election of all U.S. senators, regardless of how the vacancy occurs. We were proud to be joined by Sens. John McCain (R-Ariz.) and Mark Begich (D-Alaska) and House Judiciary Committee Chairman John Con yers (D-Mich.) and Rep. Jim Sensenbrenner (R-Wis.), the former chairman of that committee, in introducing the amendment. 

Just eight months later, two more vacancies have already occurred in Massachusetts and Florida, and another is expected in Texas. In Florida, we saw Gov. Charlie Crist appoint his own former chief of staff to the seat he plans to run for in 2010. And if Sen. Kay Bailey Hutchison resigns in November or December, her successor will be chosen by Texas Gov. Rick Perry, the very person she plans to challenge in a Republican primary. Both of these situations raise serious questions about conflict of interest. 

But the Massachusetts seat has drawn the most attention, not least because it was vacated by Kennedy, a member of the Senate for 47 years. It is also distinct because Massachusetts changed its rules just five years ago to require direct election of senators to fill vacancies and is now considering reversing that change to allow for an interim appointment. 

The state of Massachusetts had it right the first time. The change was made for partisan reasons — to deny the governor at that time, a Republican, the ability to appoint a senator to a seat previously held by a Democrat. But putting the decision in the hands of all of the people — not just one person — was the right thing to do then, and it remains the right thing to do now. 

Today, much is being made of the potential length of the vacancy. Unless the state Legislature restores appointment authority to the governor, Massachusetts will have only one senator for five months. But the Legislature that seems poised to decide to provide for a caretaker senator in the coming weeks could just as easily reduce the time in which to hold the election. Rather than taking the choice of a senator out of the hands of the people, the Legislature should give them that choice sooner.

Our constitutional amendment provides for that flexibility, leaving entirely to the states the power to determine when to hold a special election to fill a Senate vacancy. States could take five or six months to have a full election process, including party primaries and a general election, as current Massachusetts law dictates — or they could choose to adopt an expedited process. One state now requires a special election for a replacement senator to be held within 30 days, and several require such elections within 60 to 90 days. The only requirement in our amendment is that states put the choice for a new senator in the hands of the people. 

And the people are making their voices heard, loud and clear. There are serious issues confronting our country right now, and huge proposals are before the Congress. The American people want their voices heard on the key issues of health care, climate change and getting our economy back on track. As we work through these difficult and often controversial issues, we must ensure that all members of Congress are beholden to their constituents, not merely to the governors who appointed them. 

There are those who argue a constitutional amendment is not warranted and would needlessly burden states with expensive special elections. But the unprecedented number of Senate vacancies and appointments this year, as well as the significance of legislation currently before Congress, have highlighted the inherent flaws of the current system. It is time to guarantee the American people that they will always have the final say on who represents them in Congress.