Congressional Vacancies

Following Illinois Governor Rod Blagojevich’s appointment of Roland Burris to the Senate, Russ Feingold proposed a constitutional amendment that would require an election to fill any Senate vacancy. This is a sound proposal that would enhance democratic values and limit the possibility of corruption.

Since 9/11, many scholars and members of Congress have supported a proposed “Continuation of Government” constitutional amendment. Vacancies in the House of Representatives can only be filled by a special election. Concerned that a terrorist attack could kill hundreds of House members and thus leave us without a functioning Congress for weeks or months, this amendment would permit a state to appoint replacements for dead or incapacitated House members until a special election can be held. This is a thoughtful plan to address a gap in the constitutional design in the event of a catastrophe.

Perhaps you like only one of these ideas or neither one, but the important point is that they can’t both be right because they contradict each other. Revising the Feingold proposal to allow gubernatorial appointments in emergencies would resolve the problem. This is the effect of the Ethical and Legal Elections for Congressional Transitions Act (ELECT) that was introduced in the House two months ago. The bill would require states to hold a special election for a Senate vacancy within ninety days but would allow a Governor to appoint an interim Senator until that election.

The problem with using legislation to accomplish the goals of the Feingold amendment is that it is not clear that Congress has the authority to overcome the language of the Seventeenth Amendment that permits gubernatorial appointments for Senate vacancies until the vacant term ends. ELECT’s sponsors argue that their bill falls within the power of Congress under Article One, Section Four to regulate the “Time, Places, and Manner” of Senate elections. I am skeptical that this interpretation is correct, but I defer to those with more expertise in election law.

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3 Responses

  1. A.W. says:

    I would say that the Blago thing was such a rare occurance that we shouldn’t go changing the constituion over it. Burris is unfit to be a senator, but he’s only 1 of 100. he can’t do nearly enough damage to justify going through this headache.

  2. Howard Wasserman says:

    Thank you for pointing out the conflict between the Feingold Amendment and continuity-of-Congress concerns (on which I have spoken and written). The great consequence of the Blago debacle (actually, all of the botched efforts to fill or discuss filling vacancies, save for Colorado) is that it made even less likely the necessary congressional amendment to allow for emergency *House* appointments, that would be necessary in an emergency situation.

  3. JT says:

    special elections and appointments are not mutually exclusive. It would be possible to require both a special election within a reasonable period of time — say, six months or a year (to give states an option to hold party primaries and for Minnesota to count votes) — and have an interim appointment by the governor (preferably an appointment of the same party as the departing/departed senator) so that the state is not without any representation for an extended period. This could be done by statute consistent with the constitution