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.