Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments *

Academic journal article Current Politics and Economics of the United States, Canada and Mexico

Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments *

Article excerpt

INTRODUCTION

Throughout the nation's history, the governors of the several states have filled most Senate vacancies by the appointment of interim or temporary Senators, whose terms continued until a special election could be held. Between 1789 and 1913, when the 17th Amendment was ratified, the Constitution's original provisions empowered governors to -make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies." [1] The 17th Amendment, which provided for direct election of the Senate, also gave states the option of filling Senate vacancies by election or by temporary gubernatorial appointment:

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 [2]

Gubernatorial appointment to fill Senate vacancies has remained the prevailing practice from 1913 until the present day, with the executives of 41 states possessing essentially unrestricted appointment authority, provided the candidate meets constitutional requirements. Of Senate appointments that have occurred since 1913, the vast majority have been filled by temporary appointments, and the practice appears to have aroused little controversy during that 96-year period.

The presidential election of 2008 generated new interest in the Senate vacancy process. This election resulted, directly and indirectly, in the highest number of Senate vacancies associated with a presidential transition in more than 60 years [3]. The election of incumbent Senators as President and Vice President, combined with subsequent cabinet appointments, resulted in four Senate vacancies, in Colorado, Delaware, Illinois and New York, all states in which the governor is empowered to appoint a temporary replacement. Moreover, protracted controversies surrounding the replacement process in two of these states drew scrutiny and criticism of not only the particular circumstances, but the temporary appointment process itself, and led to proposals that would require all Senate vacancies to be filled by special elections.

This report reviews the constitutional origins of the appointments provision and its incorporation into the 17th Amendment. It also examines and analyzes contemporary proposals to eliminate the gubernatorial power to name temporary Senators.

CONSTITUTIONAL ORIGINS OF THE VACANCIES CLAUSE

The Constitutional Convention of 1787 addressed the question of Senate vacancies not long after it had approved the Great, or Connecticut, Compromise, which settled on equality of state representation in the Senate, and representation according to population in the House of Representatives. On July 24, the delegates appointed five members to serve as the Committee of Detail; the committee was charged with assembling all the points decided by that stage of the deliberations, arranging them, and presenting them to the convention for further refinement and discussion. The committee's report, presented on August 6, proposed that governors would fill Senate vacancies if they occurred when the state legislature was not in session:

Article 5, Section 1. The Senate of the United States shall be chosen by the Legislatures of the several States. Each Legislature shall choose two members. Vacancies may be supplied by the Executive until the next meeting of the Legislature (emphasis added). Each member shall have one vote [4]

On August 9, the delegates turned to Article 5; Edmund Randolph of Virginia, a member of the Committee of Detail, explained that the provision was thought

necessary to prevent inconvenient chasms in the Senate. In some states the legislatures meet but once a year. As the Senate will have more power and consist of a smaller number than the other house, vacancies there will be of more consequence. …

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