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Interim Appointments and the Seventeenth Amendment

26 September 2009

The passage of the Seventeenth Amendment in 1913 capped a process of reform that had begun nearly a hundred years before, with direct election of Senators--an idea first proposed all the way back in 1826, and which gathered momentum across a century of civil unrest and Congressional scandal--coming into full effect across the United States.  Four years short of the Amendment's hundredth birthday, the principle of direct election of Senators has become firmly rooted in most Americans' conception of just government.  However, to this day, seats in the Senate continue to be distributed through appointments-- made not by their states' legislatures, but by their governors. Appointment of Senators by state governors is provided for in the text of the Seventeenth Amendment.  After mandating that Senators, in all regular circumstances, should be "elected by the people," its second paragraph states: "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." Ultimate authority to decide how vacancies should be filled, therefore, remains with the State Legislatures.   Should they choose, they can deny the executive any ability to make interim appointments, leaving the governor's sole Constitutional responsibility as issuing the order for a special election to be held.   In practice, though, only three states--Oklahoma, Oregon and Wisconsin--completely deny the governor this ability.  The fourth, until this week, was the state of Massachusetts. However, a Massachusetts bill that would allow the governor to choose interim appointees (H 4246) has just been signed into law.  Governor Deval Patrick has subsequently appointed Paul G. Kirk, Jr. to succeed the late Ted Kennedy as Senator. Massachusetts now joins nine other states that allow for short-term executive appointments prior to a special election, namely Alabama, Alaska, Arkansas, Connecticut, Louisiana, Mississippi, Texas, Vermont and Washington.   Each state differs on the details of how these appointments should be made, and when an election must be held, ranging from sixty to one hundred and sixty days after the vacancy occurs. The remaining thirty-seven states fill Senate vacancies at their next regularly scheduled general election, with the governor making an interim appointment according to certain regulations.  For instance, some states, including Arizona and Hawaii, have a proviso that the appointee must be of the same political party as the Senator whose death or resignation created the vacancy.  H 4246, the Massachusetts bill, contains a similar provision.   Other states, such as New Jersey and New York, specify that if a vacancy occurs shortly before a regular primary, the election to fill that vacancy is delayed until the next election cycle, and that the governor's temporary appointee will hold office until then. The subject of Senate appointments has received much attention in recent months, with several high-profile vacancies provoking a great deal of debate between supporters and opponents of executive appointment. In the last few months, Senators  George LeMieux of Florida, Kirsten Gillibrand of New York, Ted Kaufman of Delaware, Michael Bennet of Colorado, and Roland Burris of Illinois have respectively replaced retired Senator Mel Martinez, now-Secretary of State Hillary Clinton, now-Vice President Joe Biden, now-Secretary of the Interior Ken Salazar, and now-President Barack Obama in the Senate.   This high concentration of Senatorial appointments during a period of frenetic and frequently controversial legislative activity has resulted in a number of attempts to erode or eliminate the ability of state governors to make appointments.   Most notably, House Joint Resolution 21 and Senate Joint Resolution 7, both introduced at the beginning of this legislative year, would amend the Constitution to require that a special election must be held to fill every Senatorial vacancy. -Jonathan Bray (University of East Anglia, 2009, American Studies Major, from Polesworth, United Kingdom), Key Votes Intern

Related tags: Alabama, Alaska, Arizona, Arkansas, blog, Colorado, Connecticut, Delaware, Florida, Hawaii, Illinois, Louisiana, Massachusetts, Mississippi, New-Jersey, New-York, Oklahoma, Oregon, Senators, Texas, Vermont, Washington, Wisconsin

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