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By John Fortier
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Posted: 06/20/07 07:10 PM [ET] |
Sen. Craig Thomas’s (R-Wyo.) life and public service have been rightly honored. The vacancy created by his untimely death has sparked a debate about how Senate vacancies should be filled. Should governors appoint replacements? Should political party be a consideration?
In 1913, when the Constitution was amended to provide for popular election to the Senate, the amendment also required states to fill vacancies by a special election, but gave them the option of leaving the seat vacant until the special election or permitting the governor to make a temporary appointment to the seat, who would serve until the special election took place.
In practice, almost all states have adopted gubernatorial appointments to fill vacancies. There are, however, a few that do not. Oregon and Wisconsin do not have gubernatorial appointments, so when Bob Packwood (R) resigned in late 1995, his seat remained vacant until early 1996, when Ron Wyden (D) won a special election to fill the seat. Oklahoma also leaves the seat vacant in many cases, but allows for a gubernatorial appointment in certain instances depending on the timing of the vacancy.
Massachusetts and Alaska have recently changed their policy and no longer provide for a gubernatorial appointment to fill Senate vacancies. When John Kerry was the Democratic presidential nominee, the Democratically controlled Massachusetts Legislature feared that if Kerry won the presidency, then-Gov. Mitt Romney (R) would appoint a Republican to fill his vacant Senate seat. Alaska changed its policy after the flap over then-Gov. Frank Murkowski’s appointment of his daughter to fill the Senate seat he had vacated.
The Wyoming vacancy has prompted reconsideration of how Senate vacancies are filled. One argument goes that gubernatorial appointments are undemocratic and should be abolished. States should leave vacant Senate seats vacant until they can be filled by election. Another set of arguments centers around the practice of Wyoming and a handful of other states to require that governors appoint a temporary replacement of the same party as the departing senator.
States would make a mistake in abolishing appointments altogether. First, a state effectively denies itself a vote in the Senate for the several months it takes to fill the seat. Second, unfortunately, we have to consider the possibility of a catastrophic terrorist attack on Congress. The fourth plane on Sept. 11, 2001, was headed for the Capitol. Gubernatorial appointments allow for the Senate to be up and running with near-full membership within days of an attack that kills many of its members. The House, on the other hand, would be crippled for months by such an attack, a problem that prompted the Continuity of Government Commission (on which I worked) to recommend appointments for the House in dire circumstances.
As for the requirement that a governor pick an appointee of a particular party, it is almost certainly unconstitutional. The state legislature can authorize governors to make appointments to fill Senate vacancies, but the Constitution gives them no power to put conditions on the choice.
For those who worry about the undemocratic character of appointments or think it respects the will of the people to require that an appointee be of the same party of the departing senator, there is another way.
Today, most states allow temporary appointees to serve until the next general election, which could be two years away. States could instead allow an appointment, but fill the seat within a few months by special election.
Gubernatorial appointments to fill vacancies promote the health of the Senate, but even better still would be to make those appointments truly temporary.
Fortier is a research fellow at the American Enterprise Institute. |
