Today’s New York Times has another op-ed on the abomination that is governors appointing senators to vacant seats. This time the piece is written by David Segal, a Rhode Island state representative. Segal calls on us to remember that the 17th Amendment mandates elections to fill Senate seats. He’s right in asking Congress to push for legislation that makes explicit the requirement for special elections to fill vacancies and goes a step further to demand states themselves take this step if the federal government is unwilling.

What strikes me as most shocking in Segal’s column is the statistic on the proportion of appointments to the Senate since 1913, “Nearly a quarter of the United States senators who have taken office since the 17th Amendment took effect have done so via appointment.” It’s mind-boggling that this is the result of an amendment specifically intended to bring greater democracy to the Senate.

We have a long way to go. I know there are federalism problems with Congress legislating state election law, but the 17th Amendment did just that. I see it as a question of how the 17th Amendment is applied to state election law, not the creation of new laws. But that doesn’t mean Congress should be timid; rather they must recognize that the Constitution is on their side in this matter.

Of the four Senate appointments that just took place, each has problematic notes to it. The Illinois appointment has lead to the indictment of the sitting Governor on corruption charges. The New York appointment has the appearance of Governor Paterson’s self-interest leap-frogging the interests of the state in his choice (by picking a pol in a state where he needs greater political clout to win reelection). In Colorado Governor Ritter picked a close friend who has never held elected office before. And in Delaware, while Ted Kaufman has already pledged to be a place holder who will serve only until an election can be called, remains the consummate insider, someone who most people in his state (let alone nationally) have never heard of.

This is not to say that Burris, Gillibrand, Bennett, and Kaufman may not be great senators and great public servants in the upper chamber of the US Congress. All of them have spent time working for the public in varying capacities. But the citizens of Illinois, New York, Colorado, and Delaware deserved the opportunity to choose who represents them for themselves. Gubernatorial appointments are an antiquated way to fill Senate vacancies. There may be other greater problems in our democracy — ensuring accurate vote counting and easy access to polls come to mind — but I can’t help but view this practice as anything but a stain on our democracy.

I can only hope that Burris, Gillibrand, and Bennett have the opportunity to speak with Senator Kaufman and have the humility and patriotism to call for special elections in their home states with the greatest possible speed. Let them serve until their state legislatures can pass laws governing special elections, then they should resign and if they so wish, seek the office via special election. I would guess that the voters of Illinois, New York, and Colorado would be so impressed by their selflessness in resignation for election that they would have ample chance to win. Unfortunately I doubt any of these three will feel a greater pull towards democracy than personal power. I’d be happy to be proven wrong.

Update:

Senator Russ Feingold just announced that he’s introducing a Constitutional amendment to end Senate appointments by governors and require special elections. From a press release (link):

“The controversies surrounding some of the recent gubernatorial appointments to vacant Senate seats make it painfully clear that such appointments are an anachronism that must end.  In 1913, the Seventeenth Amendment to the Constitution gave the citizens of this country the power to finally elect their senators.  They should have the same power in the case of unexpected mid term vacancies, so that the Senate is as responsive as possible to the will of the people.  I plan to introduce a constitutional amendment this week to require special elections when a Senate seat is vacant, as the Constitution mandates for the House, and as my own state of Wisconsin already requires by statute.  As the Chairman of the Constitution Subcommittee, I will hold a hearing on this important topic soon.”

This is great news.