Susan Walsh/AP
Sen. Russ Feingold, D-Wis.

Resolution Requires Special Elections, Not Governors, to Choose Senators

March 10, 2009 09:00 AM
by Kate Davey
In response to recent controversial senatorial appointments, a bipartisan proposal would amend the Constitution to mandate special elections to fill vacant Senate seats.

Special Elections Called for Senatorial Appointments

On Wednesday, March 11, the House and Senate Judiciary Committees will hold a joint hearing to consider a resolution by Sen. Russ Feingold, D-Wis., and Rep. James Sensenbrenner, R-Menomonee Falls (Wis.), to change the 17th Amendment to the Constitution to explicitly require a special election to fill a vacant Senate seat.

The resolution is prompted by the controversial and lengthy appointment process to replace the vacated seats of President Obama and Secretary of State Hillary Clinton. In a statement issued at the end of January, Senator Feingold said, “The vacancies in Illinois and New York have made for riveting political theater, but lost in the seemingly endless string of press conferences and surprise revelations is the basic fact that the citizens of these states have had no say in who should represent them in the Senate.”

In part, the resolution reads: “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.”

Background: Process for Amending the Constitution

If passed, the bill would close a loophole in the 17th Amendment, which requires direct election of senators by the voters, but also permits governors to temporarily fill vacant seats when necessary. Before the amendment, state legislatures chose senators.

It is quite difficult to amend the Constitution. Professor Douglas Linder of University of Missouri-Kansas City School of Law explains it can happen in only one of two ways, either via a “vote of two-thirds of both the House of Representatives and the Senate followed by a ratification of three-fourths of the various state legislatures” or “ a Convention called for this purpose by two-thirds of the state legislatures, if the Convention's proposed amendments are later ratified by three-fourths of the state legislatures.” To date, only the first procedure has been used to create amendments.

Senator Feingold also admits that it will be challenging to pass the resolution in a Senate where many current senators are appointees or former governors themselves.

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