Appointed Senators

At one time, as is well known, US Senators were elected by their state legislatures. This is what the US Constitution says:

Section 3. The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

Then, in 1913, Amendment XVII, was ratified, superseding the above. The amendment says, in part:

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.

I know nothing of the drafting history here, but one might surmise that it was assumed that such executive-appointed Senators would serve for very short times, until a special election could be called by “writs of election” issued by the executive. In fact, I believe–and hope someone can confirm or correct–that most states allow the executive-appointed interim to serve until the next general election. Naturally, when a vacancy occurs immediately following one general election, the next general election is nearly two years away.

Currently, we have what might be an unprecedented number of Senate vacancies, owing to the election to President and Vice President of two sitting US Senators, and the announced nomination of several more sitting Senators for cabinet posts.

If the intention of the Democratic Party and its President-Elect has been to clean house Senate, then they can certainly say the mission has been accomplished. But here is hoping that the occasion of all these vacancies–particularly the high-profile case of Illinois where the scandal-plagued Governor now says he will go ahead and appoint a replacement for Barack Obama’s seat–will lead to reform of the process of filling Senate vacancies.

Not all states allow their governor to make a unilateral appointment for up to almost two years, but many do.¹ And Illinois is one of them. In the likely absence of a correction to this process in all the states that currently allow unilateral executive appointment–action by the legislature of a state to dis-empower the executive in this area–a further federal constitutional amendment would seem to be in order. It would be sensible for the US Constitution to require election by the state legislature of an interim appointee, and/or clarify that any executive appointee must serve for only a few months at most and/or be subject to confirmation of the state legislature.

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1. It is my recollection that in the one or two times in recent decades when California has had a vacant US Senate seat, the governor merely nominates a replacement, subject to legislative confirmation. A few states mandate a quick call of a special election. But it seems as if all the states with current or expected vacancies–Illinois, Delaware, New York, among them–allow unilateral action by the governor, and also allow the interim Senator to serve until the next general election.