Senate Vacancies (again) and the contours of Federalism

by David Watkins

Last year (Here, and again here) I wrote about the puzzling politics of replacing Senators mid-term, Hillary Clinton, Ken Salazar, Barack Obama, and Joe Biden all left their Senate seats for the executive Branch. A little known quirk of the American political system became quite prominent: quite unlike the House of Representatives (where seats remain vacant until a special election is held), vacant seats are replaced in the Senate in a number of diverse that sometimes involve special elections and gubernatorial appointments (sometimes with restrictions, sometimes without) and combinations of the two. This curious diversity is a product of the 17th Amendment, which provided for direct election of Senators:

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.

In recent months, the Senate vacancy issue has become prominent again. Just days before his death, the ailing Ted Kennedy wrote a letter (which can be read here) to lawmakers in Massachusetts encouraging them to make an alteration to existing law. The 2004 law, which he supported, requires a solution to Senate vacancies similar to House elections--no gubernatorial appointments, and a special election held 145-160 days after the vacancy was created. Kennedy's suggested alteration was for a placeholder appointment (who would not be eligible to run). Kennedy wished to retain the democratic spirit of the 2004 law, without depriving Massachusetts of what could turn out to be a crucial vote on a health care reform bill in the next few months. Critics accused him of trying to change the rules of the game to suit his short term political interests. The Massachusetts legislature is still considering acting on Kennedy's request.

Meanwhile, in Florida (where vacancies are filled by gubernatorial appointment) popular Republican Governor Charlie Crist was given the opportunity to appoint the replacement for Senator Mel Martinez, who retired early. It was long known that Martinez had no plans to run for reelection in 2010, but his sudden retirement was a surprise. Crist did have the legal ability to appoint himself, and is widely believed to be contemplating a run for the Senate himself, so arguably this situation may have produced a conflict of interest (although not necessarily a favorable one, as Nate Silver argues here). In the end he appointed George LeMieux, his former campaign aide who will be sworn in tomorrow.

Frustrated with this state of affairs, Senator Russ Feingold has proposed a constitutional amendment to end the practice of Gubernatorial appointments and make special elections the law of the nation. In doing so, he's arguably pitted one central value of American politics (electoral control of legislators, government of, by and for the people) against another (federalism). It might be reasonable to argue that federalism in this case makes less sense than, say, governing education or criminal prosecutions locally, but on the other hand, unlike virtually every other state, we leave the administration of elections to local governance. 

Given the high bar Constitutional amendments must pass, Feingold is unlikely to be successful. Nevertheless, it raises interesting questions about the purpose and proper boundaries of federal variation. When considering the appropriate scope and boundaries of local and federal jurisdiction, it is sometimes too easy to let the constitution (or our favorite interpretive strategy of the constitution) do our thinking for us. Beyond the general good of adherence to the constitution, what principle or practical concern (if any) justify the status quo? Is Feingold's proposed amendment worthy of support, or an intrusive interference in local governance?

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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.