The 17th Amendment of the United States Constitution has never been one of America’s sexier laws. Few Americans are familiar with the ways in which their Senate seats are filled following a vacancy, yet millions of lives can be affected by a single Senator appointed by his state’s single governor. Now that the media has dissected the mishaps and embarrassments regarding Senate appointments in New York and Illinois, people are starting to pay attention. However, problems surrounding these appointments are not limited to the corruption of Rod Blagojevich or the ineptitude of David Paterson. These incidents are finally highlighting a serious and often overlooked flaw in our democracy which must be fixed.
When the 17th Amendment was ratified by the states in 1913, the power to choose United States Senators was transferred from the state legislatures to popular vote by the state’s citizens, who had already been directly electing House members for a century. Today, the problem lies not in the amendment itself, but in what it is missing. Filling a Senate seat in the case of a vacancy was largely ignored by Congress, and the power to appoint interim Senators was placed in the hands of State Governors.
Politics Instead of People
It goes without saying that this gives governors enormous power. Former Illinois Governor Blagojevich, who saw the opportunity as “f-ing golden,” went so far as to abuse this power and use it for political gain by attempting to sell the Senate seat vacated by Obama to the highest bidder. Blagojevich’s corruption was unusual, but made far too possible by the new power invested in him.
In the usual case, even without abuse of power, the selection of a replacement involves more political maneuvering than concern for citizens’ representation. After weeks of deliberation, New York Governor Paterson ultimately chose freshman congresswoman Kirsten Gillibrand to fill the vacated seat. Gillibrand, a conservative Democrat who became immediately unpopular throughout her state, is believed to have been chosen to appease conservatives in upstate New York and assist Paterson’s re-election. In this way, appointed Senators become mere extensions of a governor’s political whims.
Those who do seek to fill a vacated seat have every incentive to lobby their governor and none to appeal to the people. During Caroline Kennedy’s short-lived candidacy, she made her interest in the position clear, but made little effort to articulate her vision for the future of New York. She simply felt entitled to the position. After Blagojevich’s controversial appointment of Roland Burris, Burris did not seize the media’s attention and articulate his views on national issues, but simply continued to claim ownership of the seat, and even stated that it was God’s will that he be seated. A directly elected senator must prove his worth to those he represents, and must express passion for America instead of interest in personal advancement.
So then, what benefit is there in appointing these senators? Nate Silver of fivethirtyeight.com points out that appointed senators rarely win re-election. Only 40 percent have been elected to serve a second term, and only 80 percent even choose to run for re-election, indicating their lack of passion for the job in the first place.
Amending the Anachronism
Senator Russ Feingold has been the first congressperson to propose a realistic solution to this issue, and his constitutional amendment, cosponsored by Senators John McCain and Mark Begich, will be debated by this new congress. Feingold is exactly right to describe senatorial appointments as “an anachronism,” and there have already been measures to replace it with fairer democracy. Massachusetts, Oklahoma, Oregon, and Feingold’s state of Wisconsin already allow for fast special elections, while Washington, Texas, Arkansas, Louisiana, Mississippi, Alabama, and Vermont allow for an interim gubernatorial appointment to fill the position before the quick election. California and New Jersey allow governors to call for a special election, but do not require it.
This may be the perfect time to pass this amendment, and nothing is gained from delays. Currently there are fourteen Republican senators whose replacements would be appointed by Democratic governors, and 14 Democratic senators whose replacements would be appointed by Republican governors. There are no obvious ways in which either party stands to gain anything over the other.
The cost of reform is also inconsequential; special elections are expensive, but well worth the realization of good government. States have always funded special elections for House seats, and to deny the same for Senate seats would undermine our commitment to democracy. When he introduced the amendment, Feingold emphasized that “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.”
We pay a much higher price if we allow this wound in our constitution to exist unaddressed. Now is the time to reform our constitution and finally remove the chains on our unfinished democracy.