Time for a New Constitutional Amendment?
Long time TMV author and friend Shaun Mullen makes an interesting proposal in the wake of the Blagojevich appointment of Roland Burris to the Senate. Is it time, as Shaun suggests, to “strip the power of filling Senate vacancies from governors and give that job to the voters, where it belongs?”
It’s not the first time, and I’m sure it won’t be the last, but I’m going to disagree with Shaun on this one. First, primarily on general principles, I’m hesitant to rush off in the direction of altering our Constitution every time there’s a hiccup in the system. Additional constraints on the powers of the states simply aren’t my cup of tea unless there’s simply no other way around the perceived problem. Having established the baseline framework of how our government operates, the document should primarily concern itself with ensuring the equal opportunities and rights of the citizens while preventing the institutionalization of abuses by the individual states. The more we ask it to dip into the specific nuts and bolts of day-to-day operations, the more trouble we’re asking for.
It’s also worth noting that the problem we’re addressing here is roughly as rare as hen’s teeth. Generally, a seated Governor would be someone who has earned the faith and trust of the voters as demonstrated during their election. The need for them to fill a Senate seat by appointment is at least as rare as Governors being removed from office for malfeasance. The odds of the former happening during the brief window while the latter is playing out, as currently unfolding in Illinois, are remote beyond belief. It doesn’t seem to be the type of constant danger which would require amending our founding documents.
There is also the matter of expense and operations to consider. Holding elections not only requires a lot of time and effort, but they cost money. Somebody has to pay for the extra elections. And if we’ve learned anything by now it is that, when the phrase “somebody has to pay” is invoked within a country mile of anything to do with government, we can be fairly sure who the “somebody” in question will be. Further, turnout for special and off-year elections tends to be dismal and the will of the people is not expressed as fully. It’s hard enough getting people out for the regularly-scheduled, “big ticket” elections. And if we’re this worried over the rare case of a Blagojevich situation, what if a Senator resigns, then their replacement is caught celebrating with a hooker after their victory speech, and their replacement is so excited about the new job that they drop dead of a heart attack? That’s going to get pretty expensive and time consuming.
While on that subject, the U.S. Constitution doesn’t even mandate Governors to do this. It simply allows it as an option, as detailed in the 17th Amendment. (Emphasis mine)
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.
If the people of Illinois no longer wish the Governor to have this power, they are able to change it to mandate special elections through their representatives. In fact, they almost did so two weeks ago, but chose not to. I think each state should retain the option to handle this as they see fit, particularly given the expenses and logistics involved. Rushing to change the system over an anomaly such as Blagojevich could well be a case of throwing the baby out with the bath water.
3 Responses to “Time for a New Constitutional Amendment?”
I've heard some excellent arguments that the 17th Amendment was a terrible idea, and that we should move back to state legislature appointments to the office.
The core of the argument is the wide disconnect between the federal government and the various state governments. Unfunded mandates, pork projects that don't really benefit the states, the states having to take leadership roles in issues like the environment, energy policy, health care, and poverty reduction, all happen because the federal government is lax in all of these areas. All of these problems continue because the federal government has no interest in the concerns of the states.
Our democratic process has been poisoned by Swift Boat-style campaigns, huge campaign fund raising, and incumbency. All of this has resulted in an ineffectual, even inept, Congress. Maybe it's time to dial it back and return the Senate to appointment by democratically-elected state legislatures, the way it used to be.
The House is for the people, the Senate is for the states, that's the way the founders intended it. The beauty of our system, as it is (or was) written was that everything had a balance. Balance of powers between three branches; the Bill of Rights to ensure public discourse and “open government”; and, yes, a balance between direct voter intervention and appointment processes (which sound undemocratic but perform a much-needed function in ensuring key government positions have been properly vetted).
I know it sounds creepy to suggest that we take away voter's rights, but I think it deserves some thought. Not that a repeal of that amendment would ever be passed …
My kneejerk reaction, as you predicted, would be to oppose that idea as indeed being “creepy” but I suppose any true blue constitutional originalist would have to give the suggestion a fair hearing. But I'm not sure if turning back the clock 200 and some odd years is the answer to the perceived problem. If we're unhappy with the quality of the Senators we're receiving, it seems to me that the answer lies in voter education and the selection of better Senators, not messing with the selection process. All of the talk about Caroline Kennedy and Blago appointing Burris shouldn't detract from the fact that we regularly get Senators with highly questionable or no credentials (e.g. Clinton) or even allegedly qualified ones who turn out to be totally corrupt and still remain in office for ages. (e.g. Stevens, et. al.) I don't know if there's a quick fix, but it's obviously worth looking in to.
“I've heard some excellent arguments that the 17th Amendment was a terrible idea, and that we should move back to state legislature appointments to the office.”
Same here (arguments against the 17th). Of course, nowadays this is heresy in that more and more people view a greater and more-direct role than originally anticipated (and intended) for the federal government as both normal and highly desireable, and they view smarter skepticism as … heresy.
In fact, some would like to convert the Senate into the equivalent of the House (apportion seats according to each state's population, implying a great increase in that body's size); a rare elitist view would have these people elected “at-large” across the USA by all citizens (even awarding seats based on proportional representation), and commonly there are calls for the “undemocratic” Senate to be abolished. (The most notorious example of this was a book calling for its abolition and featuring a fictitious scenario whose crucial detail I predicted — the justification claimed in it was the losers' first and often most common resort, the Preamble. [snicker]) This is, of course, diametrically opposed to how the Senate versus the House was meant to exist and to function, as another user has stated (see below).
As to Shaun's suggestion, it seems okay to me and certainly is more specific and appropriate than a flag-burning amendment or marriage definition amendment. (The solution to past, present, and future judicial activism is to remove the offending judges or legislate exceptions or restrictions on the scope of what any court may rule on, not to misuse the amendment process for what doesn't really belong “at the highest level” of the Constitution. This would be true for abortion as well, both the anti- and the pro- positions.)
Certainly if the voters choose Senators now, and as they look to Washington (wrongly) as their first rather than their last resort to having government solve their problems or intervene in their and others' lives (itself often a first rather than properly the last resort), why not have a new election, though there's no excuse in the universe for treating this as anything sacred.
An additional observation, spurred by the truth, and how things ought to be again,
“The House is for the people, the Senate is for the states, that's the way the founders intended it.”
(Senators should be super-ambassadors from their states, with federal plenipotentiary powers…)
is that with so many looking mindlessly to Washington, they care little or have little contempt for the states. (Mention “dual sovereignty” or “dual citizenship” to them and you'll get stupid looks or worse.)