Senate Panel Okays Ban on Gubernatorial Appointments to Vacant Senate Seats

By Edwin Mora | August 20, 2009 | 5:39 PM EDT

Sen. Russ Feingold (D-Wis.)

( – An amendment to remove the constitutional right of governors to appoint individuals to U.S. Senate seats that become vacant in between elections was recently approved by a 5-to-3 vote in the Senate Judiciary Subcommittee on the Constitution.
The resolution, which favors direct elections rather than gubernatorial appointments to unoccupied Senate seats as the Constitution requires, was introduced Jan. 29, following news of a pay-to-play scheme involving then-Illinois Democratic Gov. Rod Blagojevich, who is accused of scheming to sell President Barack Obama's former U.S. Senate seat. 
Before introducing the amendment, Sen. Russ Feingold (D-Wis.), a member of the Judiciary Committee, released a statement advocating an end to the constitutional right of Blagojevich-type appointments to Senate seats.
“The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end,” said Feingold.

Former Illinois Gov. Rod Blagojevich

“In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this country the power to finally elect their senators,” he said. “They should have the same power in the case of unexpected mid-term vacancies, so that the Senate is as responsive as possible to the will of the people.”
In Article I, Section 3 of the Constitution, dealing with members of the Senate, it states: “[I]f Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof [governor] may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.”
The 17th Amendment to the Constitution reads: When vacancies happen in the representation of any State in the Senate, the executive authority of such 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.”
When asked about the pay-to-play scandal, Burris several times changed his story about how he was appointed. He finally admitted that at some point he was committed to raising money for the governor, but he also indicated that he failed in that endeavor.
Corruption accusations resulted in the impeachment and arrest of Blagojevich, who is currently facing trial on federal charges, and it also sparked an investigation into Burris’ role. Burris was appointed to the Senate seat three weeks after Blagojevich was arrested.
In July, Burris announced that he would not run for a full Senate term in 2010.

Sen. Roland Burris (D-Ill.)

Feingold’s resolution to change the way open Senate seats can be filled garnered somewhat bi-partisan support, with backing from Sens. John McCain (R-Ariz.) and Richard Durbin (D-Ill.), as well as Mark Begich (D-Alaska).  
By September, the Feingold proposal is supposed to reach full-committee consideration where it is expected to face opposition.
Senate Majority Leader Harry Reid (D-Nev.) recently told reporters that he is against the subcommittee’s proposition.
"I'm not in favor of our dictating to a state what it should do," said Reid. "We have a system now where some states have special elections and some have governors appoint.”

The Senate leader added: "In the state of Nevada the governor appoints. Even though we have a Republican governor now, I think that's the way it should be – so I don't support this legislation.”
Both Reid and Durbin attempted to deny Burris his Senate seat.
To be approved, the potential 28th constitutional amendment has to be supported by an overall congressional majority of two-thirds and also by three-quarters of the states. The 27th Amendment made it through in 1992, more than two centuries after it was submitted in 1789.
Republicans on the Senate Constitution subcommittee who voted against the measure include John Kyl (R-Ariz.) and John Cornyn (R-Texas), who was appointed by Texas Gov. Rick Perry in November 2002.
The only Democrat to vote against the resolution was the chairwoman of the Senate Rules Committee, Sen. Dianne Feinstein (D-Calif.), while Sens. Benjamin Cardin (D-Md.) and Arlen Specter (D-Pa.) did not vote.
In support of Burris being appointed by then-Gov. Blagojevich to fill Obama’s vacant Senate seat, Feinstein said on Jan. 6: “Does the governor have the power, under law, to make the appointment? And the answer is yes. If you don't seat Mr. Burris, it has ramifications for gubernatorial appointments all over America ….”
Currently, governors, as the Constitution mandates, are permitted to designate a replacement for a vacant Senate seat in most states with only Alaska, Connecticut, Massachusetts, Oklahoma, Oregon, and Feingold’s Wisconsin requiring a special election.
Besides Burris, out of the present senators, those who received gubernatorial appointments to fill-in for senators and who have subsequently been hired by the Obama administration are Michael Bennet (D-Colo.), Kristen Gillibrand (D-N.Y.), and Ted Kaufman (D-Del.).   
The Senate’s Web site reveals that 184 senators have been elected through gubernatorial appointments since 1913.
The Feingold amendment, formally known as S.J.Res.7, states:
“Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies.
“Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.”