No more appointed senators

By David Segal
Published May 14th 2009 in Baltimore Sun

Where are they now?

Just three months ago, America was introduced to four newly appointed Senators - two of whom had never even run for office. They've receded from the fore of our consciousness over the months since, but they're still out there, doing the business of the people who elected the people who appointed them.

Senators Russ Feingold and John McCainare pushing an amendment to the Constitution to require that senators be elected by the people whom they are meant to represent. The 17th Amendment, ratified in 1913, removed the appointment of senators from the purview of state legislatures, mandating popular elections, excepting for gubernatorial appointments when vacancies occur. It's time to close this loophole - and Maryland's Sen. Benjamin L. Cardin, who sits on the Constitution subcommittee of the Judiciary Committee - can play a critical role in doing so.

Americans were rightfully dismayed by the political jockeying, and in some cases apparent outright corruption, that swirled around their ascension during the fall and winter. Now the appointees are laser-focused on consolidating the power that was handed to them. But their low popular support yields diminished legitimacy, making it harder to be taken seriously by their colleagues and to work effectively on behalf of their constituents.

So who could oppose electing our senators? Several so-called conservatives have lined up against the proposal - and some even against the 17th Amendment itself: They assert that state governments should decide how senators should be selected.

States can indeed take action right now, but despite this winter's mass outcry, legislation requiring that Senate vacancies be filled by special election has been introduced in just a handful of states this year, and it's already clear that only a few of these bills stand a chance of passing.

What happened in Annapolis this year illustrates why: Del. Saqib Ali introduced legislation to require special elections, but to avoid stepping on the toes of the powerful, it was written to not take effect until 2015 - when Gov. Martin O'Malley will presumably have left office. Even so, the proposal went nowhere.

States in which the legislature is dominated by the same party as the governor - especially those with relatively stable political dynamics - are unlikely to perceive an urgency to act on the Senate vacancy issue; the party that rules the legislature is hesitant to strip authority from a governor of the same party.

In states where power is shared by Democratsand Republicans, the parties have competing interests that complicate the vacancy issue, hurting chances of passage. Indeed, passage is likely only in states with the most unusual of political dynamics: a legislature controlled by a super-majority of one party but a governor of the opposite political affiliation.

Rhode Island, where I live, is the exception that proves this rule: Democrats hold 90 percent of legislative seats and the governor is a relatively unpopular Republican. Versions of Senate vacancy legislation need to be reconciled after having already passed the House and Senate; a likely gubernatorial veto would be easily overridden. (Governors have no role in ratifying constitutional amendments, so the threat of vetoes would be removed under Mr. Feingold's proposal.)

A national movement, and national branding of the push as a "good government" effort, would lessen the appearance that action or inaction by a given legislature would serve as a referendum on any particular governor or on any particular appointed senator. Passage by only 38 states would, once and for all, put an end to this vestige of the oligarchical politics of a century gone by.

The basic legitimacy of our system of governance requires that senators be chosen by the people. Senator Cardin should use his privileged position to aggressively push Senator Feingold's amendment.

David Segal is an analyst for Takoma Park-based FairVote and a Rhode Island state representative. His e-mail is [email protected].