Fixing Senate Vacancies, Part Two

By Marc Korman.

In Part 1, we reviewed some historical Senate vacancy appointments, including the recent appointments that have stirred interest in the topic of reform. In Part 2, we will look at state and federal efforts to reform the process.

The 17th Amendment, effective since 1913, says about vacancies:

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.

All but the five states of Alaska, Wisconsin, Oklahoma, Oregon, and Massachusetts allow their Governor to fill a Senate vacancy. Interestingly, Massachusetts allowed appointments until 2004. In that year, the Democratic legislature was concerned that Republican Governor Mitt Romney would appoint a Republican to replace John Kerry if he was elected president. The three states of Arizona, Hawaii, and Wyoming limit their Governor’s appointment power to the same political party as the outgoing senator.

Here in Maryland, Delegate Saqib Ali has introduced House Bill 369. The legislation would require Senate vacancies to be filled by Special Election. But until the Special Election, the Governor could make a temporary appointment. The legislation would not be enacted until 2015, after the current Governor will have an opportunity to serve two full terms.

At the Federal level, Senator Russ Feingold from Wisconsin has introduced a Constitutional amendment requiring elections to fill Senate vacancies. In the House, freshman Congressman Aaron Schock of Illinois has introduced a bill to require special elections, with the cost of conducting one being split between the state and the federal government. Since the 17th amendment specifically authorizes the state legislatures to empower governors to appoint, Congressman Schock’s proposal may not be enough to change the status quo.

So far, there has not been much legislative momentum for any of these proposals. Delegate Ali’s proposal has eleven cosponsors, five from Montgomery County. Senator Feingold and Congressman Schock both have two cosponsors. But there is interest outside of legislative bodies including from editorial boards and individual voters. Fighting for these changes may take years, but they are worth the effort to reform the process and give citizens a voice in electing their Senators. In Part 3, we will discuss some of the safeguards that should be included in the needed reform.