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Congress Weighs Elections For Senate Vacancies

Local ministers pray for U.S. Sen. Roland Burris during a prayer and support service at the New Covenant Baptist Church in Chicago on March 1. Authorities are investigating whether Burris lied under oath about the extent of his pre-appointment contacts with Blagojevich.
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Local ministers pray for U.S. Sen. Roland Burris during a prayer and support service at the New Covenant Baptist Church in Chicago on March 1. Authorities are investigating whether Burris lied under oath about the extent of his pre-appointment contacts with Blagojevich.
Then-Gov. Rod Blagojevich addresses the Illinois Senate during his impeachment trial Jan. 29.
Scott Olson
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Then-Gov. Rod Blagojevich addresses the Illinois Senate during his impeachment trial Jan. 29.

The scandal surrounding now-former Illinois Gov. Rod Blagojevich and his alleged efforts to "monetize" the U.S. Senate appointment he controlled provided the nation with weeks of cheap political theater.

Federal bribery charges. Impeachment. Profane phone calls tapped by investigators. Careers made and ruined. Mostly ruined.

But Congress is now wrestling with the formidable question of whether, in the wake of Blagojevich's ignominy, it should take the rare step of amending the U.S. Constitution to strip governors of their Senate appointment power.

Wisconsin Democratic Sen. Russ Feingold has introduced an amendment that would do just that; there's a companion proposal in the House. Feingold argues: If not now, when?

"Clearly this is the right time to consider this," he says, calling the current state of Senate appointments "a dramatic and embarrassing situation."

And not just because of Blagojevich, a Democrat, and his now-suspect appointment of Roland Burris to fill President Obama's unexpired Senate term. The Illinois State Senate Ethics Committee and the state's Sangamon County state's attorney's office, which has jurisdiction over the state capital of Springfield, have been investigating whether Burris lied under oath about the extent of his pre-appointment contacts with Blagojevich.

A Voting Rights Issue?

Feingold says that recent gubernatorial appointments in Colorado, Delaware and New York to finish out the terms of U.S. senators who resigned to serve in Obama's administration constitute a voting rights issue. Twelve percent of voting Americans are now represented by a senator they didn't elect, he says.

Feingold wants to remove what he calls an "anachronism" in the 17th Amendment. The amendment, enacted in 1913, requires that senators be chosen by direct election instead of by state legislators, as the Constitution originally stipulated.

The anachronism? The amendment also allows governors to make temporary Senate appointments to fill vacancies — and they've done so 184 times.

Feingold says that's enough. He wants to require that all Senate vacancies be filled by special election, just as they are in the House.

Not an unreasonable proposal, on its face. The Blagojevich fiasco, more than any appointment scandal in recent history, pulled back the curtain on noxious backroom wheeling and dealing for political gain, similar to the string of scandals that led to the 17th Amendment in the first place.

Feingold, along with fellow Democrat Rep. John Conyers of Michigan, have already lined up support from both sides of the aisle, including GOP Sen. John McCain and Republican Reps. James Sensenbrenner of Wisconsin and David Dreier of California.

Dreier, a former chairman of the House rules committee, calls the proposal simply a "perfecting amendment" that continues the reforms of the 17th Amendment.

Amendments Don't Come Easy

But start messing with the U.S. Constitution with a proposal that would rescind a state-based power, and a battle is guaranteed.

Even some legislators who may be inclined to support the amendment suggest privately that the timing could be wrong: The effort has the potential of tainting recently appointed Democratic senators who, like New York's Kirsten Gillibrand and Colorado's Michael Bennet, plan to run in 2010.

Delaware Sen. Ted Kaufman, appointed to fill the vacancy left by Vice President Joe Biden, has said he will not seek election next year. Burris has not revealed his plans, though a recent poll shows him with single-digit support in theoretical matchups with two other statewide officials interested in Obama's seat.

The Constitution has been amended just 27 times since it was adopted in 1787 — and 10 of those amendments came in one fell swoop in 1791, when Congress adopted the Bill of Rights.

It's a big deal.

Changes, says political historian Matthew Spalding, should only be considered during a "great and extraordinary occasion."

In testimony Wednesday during a Senate-House judiciary hearing on the Feingold-Conyers proposal, Spalding, of the conservative Heritage Foundation, argued that there is no national consensus that a problem exists or that a solution needs to be pursued.

Others argue that expedited special elections to fill Senate vacancies would favor candidates with lots of ready money to spend. And politicos say that the Feingold proposal needs a provision that would allow expedited appointments during a crisis resulting in the death of many members of Congress.

Feingold and Conyers clearly have some convincing to do. Constitutional amendments require approval by a two-thirds majority in both the Senate and the House, and then ratification by three-fourths of the states.

But there is clearly much activity nationwide around the issue. Currently, only three states — including Wisconsin — require special elections to fill Senate vacancies.

There are at least nine other states where legislation has been considered or proposed to require that to serve in the U.S. Senate, the voters must put you there.

The appointment process is under the spotlight this year more than it has been since 1913. It may translate to changes down the road; Feingold is clearly hoping it won't take another 96 years.

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