Ninety-six years ago, voters won the constitutional right to choose their own senators. But in all but four states, the governor decides who will fill the seat after a vacancy. Now, there's a drive in Congress for a constitutional amendment requiring a special election to fill a Senate vacancy.
The push comes in the wake of several recent Senate shake-ups — most prominently, the controversy surrounding President Obama's vacant Senate seat.
In December, federal authorities arrested Rod Blagojevich, then-governor of Illinois, and accused him of trying to sell Obama's former Senate seat to the highest bidder. At a news conference the same day, Dick Durbin, Illinois' other senator, declared there was only one way out: "I think the Illinois General Assembly should enact a law as quickly as possible calling for a special election."
Here's why a new law would be needed: The assembly, like 45 other state legislatures, long ago gave its governor the exclusive power to fill Senate vacancies. The option to bestow such power is part of the 17th Amendment, the same one that provides for the direct election of senators.
Illinois lawmakers did not pass a special election law, but they did impeach Blagojevich — though not before he appointed Roland Burris to the Senate. Burris is now struggling to hang on to his new job; earlier this week, he pleaded in Chicago for understanding after admitting he tried to raise money for Blagojevich while seeking the Senate appointment.
"I ask you ... to stop the rush to judgment," he said. "You know the real Roland. I've done nothing wrong, and I have absolutely nothing to hide."
Wisconsin Democratic Sen. Russ Feingold says "enough is enough." He wants every state to do as Wisconsin has done: fill Senate vacancies only by special election.
"It's time to put the power to replace senators where it belongs — with the people," he says. "That's the way it's been for the House since the Constitution was written, and I don't think the Senate should be any different."
To make special elections the law of the land, Feingold is proposing what would be the Constitution's 28th Amendment. Joining him are several prominent House Republicans, including the former chairman of the Judiciary Committee, Wisconsin's James Sensenbrenner.
"Elected senators have a mandate from the people," Sensenbrenner says. "Appointed senators have a mandate from one person: the governor. And in terms of effective representation in the Senate, you've got a lot more clout if you were sent there by the people, rather than having a friend who happened to be governor at the time."
But while many constitutional amendments have been proposed, few actually become law. Elections expert and constitutional scholar Nathaniel Persily of Columbia Law School gives Feingold's proposal a better-than-average chance of passing.
"I think you'll find that — in the wake of the Burris scandal and the four senatorial appointments we've had this year — that many state legislatures would like to move in this direction," Persily says.
Another constitutional expert, Vikram Amar of the University of California, Davis School of Law, argues against Feingold's proposed amendment. Amar says those who drafted the 17th Amendment had very good reasons to let governors fill Senate vacancies:
"They didn't want to impose upon each state the cost of holding a special election very soon," he says. "Moreover, you know, you need a little bit of a campaign before you have a special election, so you can't hold one the day after the vacancy is created. And in the meanwhile, the question is, do you want the state to have any representation in the Senate or full representation in the Senate? If so, you've got to have some second-best option, and the governor is better than the legislature in that second-best option."
Feingold, though, says the only option should be the direct election of all senators.
"What do you get to vote for? Well, one of the rarer things you get to do is vote for an open seat for the United States Senate," he says. "How often does that happen? This is really about the fundamental right of an American to vote."
And that's why Feingold says he wants to perfect the 17th Amendment by passing his 28th Amendment.
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