Press Conference With Representative David Dreier And Senator Russ Feingold

Press Conference

Date: Feb. 11, 2009
Location: Washington, DC

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REP. DREIER: Well, thank you all very much for being here.

Several weeks ago, I was talking to our colleague Russ Feingold about the desire that we had to work together on something and see if we could establish a strong, bipartisan base for an important issue. And lo and behold, I all of a sudden saw that he had introduced a constitutional amendment to deal with one of the great challenges that is before us.

For the first time since John F. Kennedy was elected president in 1960, we have seen a sitting United States senator elected president of the United States, as we all know. And what followed was a great deal of respect on the part of that new president for the talent of his colleagues.

And so it created a total of five vacancies in the United States Senate.

And we all know what happened. There was a lot of attention focused on at least a few of those five appointments that took place. And in light of that, when I saw that Senator Feingold had introduced this amendment, along with Senators Begich and McCain, I said, "This makes a great deal of sense."

My friend Jim Sensenbrenner and I have worked together over the past several years to ensure that the people's house remains that and that the people actually choose their leaders. Some of you may recall that there was an effort afoot to basically amend the U.S. Constitution -- or to amend the U.S. Constitution -- that would follow the example of the Senate. And Mr. Sensenbrenner and I felt that that was just plain wrong. And I'm happy to say that more than 350 of our colleagues, with a great, great, great bipartisan voice, said no to calling for appointments in the House of Representatives.

And when one looks back at the history of the 17th Amendment to the Constitution -- and I read -- I read Russ's great story about what took place in the Missouri legislature in 1905, where in -- as they were approaching adjournment date and were to make this appointment, they all of a sudden tried to stop the clock so that they could, you know, continue with this protracted debate on the appointment. And then it ultimately led to the direct election of United States senators.

And as the 17th Amendment was cobbled together -- and this was actually initiated by Andrew Johnson, interestingly enough, the notion of direct election of United States senators -- but as this was cobbled together, I'm convinced that the notion of appointments being left in the hands of the executive was merely an afterthought. And I believe that this effort that we have here is really completing the work of what was done with the 17th Amendment.

And so we are joined by John Conyers. He was the first person I called after I had talked to Senator Feingold about this, as the chairman of the Judiciary Committee, and he was very enthusiastic about joining in support of this.

He's testifying right now before the House Administration Committee, but we're hoping that he's going to join us in a few minutes; and so, really pleased that he agreed to join us.

And Lamar Smith, the ranking member of the Judiciary Committee, Jim Sensenbrenner, the former ranking member of the Judiciary Committee and ranking member of the Constitution Subcommittee, were both enthusiastic about the notion of joining --

REP. JAMES SENSENBRENNER (R-WI): I was the chairman, David. Remember we had a majority once. (Laughter.)

REP. DREIER: Yeah, that's exactly right. That's exactly right. Was I ever chairman of the Rules Committee? I can't remember back that far. (Laughter.)

Well, it's interesting. I was just downstairs as we were recognizing today's great accomplishment of our colleague John Dingell. And I was recounting my days as chairman of the Rules Committee, when John Dingell would come up and sit so patiently, unlike junior members who were pacing, wanting to be recognized. And John Dingell would sit there patiently. And Jim Sensenbrenner is another great institutionalist, in the spirit of John Dingell as well.

But we have, I think, an opportunity to gain great support. Our brand new colleague, Aaron Schock, has indicated interest in this, and I'm convinced that we'll be able to build great bipartisanship just as Russ has in the Senate.

So at this point, let me call on the progenitor of this effort, my good friend Senator Feingold.

SEN. FEINGOLD: Thank you, Congressman Dreier. I appreciate that introduction. And we -- actually, the progenitor of this whole topic was back in the year of the 17th Amendment. William Borah and of course "Fighting Bob" LaFollette from Wisconsin were among the people that fought for this in the first place. So for me this is part of a tradition that relates to my state.

But I particularly want to thank Congressman Dreier. Yeah, we just ran into each other in the elevator in the Hart Building a few weeks ago, and we just had the usual polite conversation and pleasant conversation about how we ought to -- we ought to work together some time. Well, he followed up. He called me from the Republican Conference. He saw this thing and he said, "Here's something we can do together." So I give him enormous credit, and I'm looking forward to the opportunity to work with him.

John Conyers and I have worked together on so many issues. He's one of my favorite people in the whole Congress. And we worked together on racial profiling and so many other important issues. So it's wonderful to have him.

Congressman Smith, I'll be delighted to work with you, and I know you have vast experience in the House.

And of course, Congressman Sensenbrenner. He and I -- when I was a student at the University of Wisconsin interning in the state legislature, I used to watch him give speeches on the floor of the Wisconsin State Senate.

That's how far back we both go.

REP. SENSENBRENNER: You were a child then? (Laughter.)

SEN. FEINGOLD: I was not a child, but I -- I was an adult, under Wisconsin law. (Laughter.)

But this is a bipartisan effort, is a bicameral effort. The appointments in Delaware and Illinois and New York and soon New Hampshire have driven home that these decisions should be in the voters' hands.

So I do welcome the new colleagues in the Senate. They're good people, and I've already had the opportunity to work with them during this whole stimulus debate. But the appointments process itself is undemocratic. Senate seats, just like House seats, should be filled by whoever wins an election, not whoever wins the favor of the governor.

And of course, under the Constitution, House races have always been by special election when there's a vacancy. That's how Jim Sensenbrenner became a congressman.

REP. SENSENBRENNER: It was a very special election. I was --

SEN. FEINGOLD: But was it a -- was that (being a later ?) race?

REP. SENSENBRENNER: Yeah.

SEN. FEINGOLD: Was that -- that was a regular election.

REP. SENSENBRENNER: Right.

SEN. FEINGOLD: That's how many of our people have been elected in Wisconsin, and of course I've seen it over the years. I think the Zablocki election was a special -- and it has always worked fine in our state.

I think the appointments of senators are a constitutional anachronism. The 17th Amendment language on governors appointing temporary replacements, as David was saying, was really just a carryover from the original Constitution, which permitted governors to make temporary appointments till the state legislature could choose a senator.

So people say, "Aw, you shouldn't amend the Constitution lightly." Of course not. This is really just a perfecting amendment. We'll have a different number. If we passed it as the next one, it would be the 28th Amendment. But it is merely a perfecting of the 17th Amendment. It's not a whole new concept being introduced to the Constitution. It's really just an anachronism.

And when I announced plans to introduce the amendment, there were three temporary replacements in the Senate. When Judd Gregg's replacement arrives, there will be five. Enough is enough. It's time to put the power to replace senators where it belongs, with the people. That's the way it's been for the House since the Constitution was written, and I don't think the Senate should be any different.

People are saying, "Well, you know, this is going to be expensive. It's going to happen all the time." Well, you're a better historian than I am, but I think the last time this happened in Wisconsin was when Joe McCarthy died.

REP. SENSENBRENNER: Right.

REP./SEN. : (Off mike) -- heard of him --

SEN. FEINGOLD: The infamous Joe McCarthy passed way, and a guy named William Proxmire, in a surprise, defeated the governor of Wisconsin, Kohler, in a special election, and he was reelected for 30 years and in my humble view one of the great senators we ever had from our state. You know, it worked just fine to have the people choose Bill Proxmire, rather than the governor, who of course was the guy that ran against him. (Chuckles.)

So I look forward to working with the House members and others to move forward the amendment. We hope that we will be able to have a hearing, at least in my subcommittee or jointly with whatever's appropriate, as early as March 10th or 11th.

Thank you very much.

REP./SEN. : (Off mike) -- very much. That's great.

Lamar -- (off mike).

REP. LAMAR SMITH (R-TX): David, thank you.

Let me just say at the outset that it's not very often that you see a piece of legislation, much less a constitutional amendment, that, as the senator said, is both bipartisan and bicameral.

I don't -- this may be a first, when it comes to a constitutional amendment, and that shows the necessity of it and the importance of it and the timeliness of it as well.

I just want to make the point that as the member of the Judiciary Committee, ranking member, I consider the Judiciary Committee to basically be the guardian of the Constitution. And so I think long and hard before I ever cosponsor a constitutional amendment. I take it very seriously. I don't do it very often.

And I might say also that I have in my office, on the wall, if anyone ever wants to stop by, three autographs. One of the autographs is of James Madison. And the reason I have James Madison on my wall is because he's considered to be the father of the Constitution. And looking at that autograph every day reminds me of what the Judiciary Committee should be about, and that is being a guardian of the Constitution.

Q Did Jim Sensenbrenner get that Madison autograph for you?

REP. SMITH: He did not. I'm -- he probably would like --

Q I forgot when I talked to him, so -- (laughter) --

REP. SMITH: He probably would like to have it. Yeah, he could have gone -- no, no, we won't go there. (Laughs.)

But clearly, the 17th Amendment has had an unintended constitutional consequence that needs to be corrected. When you look at the 17th Amendment, when it was debated back in 1913, there were several days of debate. Not one time was it ever discussed or was the idea of a gubernatorial appointment of a senator ever discussed. They never thought about it. It wasn't anticipated. They didn't realize that unfortunately sometimes politicians are a little lower than the angels and sometimes there is a temptation to abuse the system. And we've seen that over the course of the decades.

So, clearly, there is a need to correct this unintended Constitutional consequence, and that's what this amendment is all about. It is absolutely essential, in my judgment, that this choice of a senator be put back into the people's hands and be the result of an election. That is the essence of democracy. That is what our nation is all about. And that is why we need this amendment.

REP. BREIER: Jim?

REP. JIM SENSENBRENNER (R-WI): Thank you very much, David.

Senator Feingold alluded to this, but I'll amplify on it. Wisconsin is one of only three states in the union that has never had an appointed senator. And we have always filled senatorial vacancies by special election since the 17th Amendment was adopted. There were deaths in 1918, 1925 and 1957. And the new senator arrived in Washington with a certificate of election in hand and a mandate from the voters of Wisconsin to try to adopt and pass his program once he arrived to the United States Senate.

And I think that's the way it ought to be.

Mr. Smith talked a little bit about James Madison, the author of the Constitution. When I was the chairman of the Judiciary Committee, I was frequently criticized, when we were considering constitutional amendments, of "How can you have the gall to improve on James Madison's prose?" The 17th Amendment was not James Madison's prose. It was written as a result of, I think, a real public outcry, as a result of scandals in legislatures relating to the appointment of new senators. And many senators ended up having their terms expired, and seats sat vacant for months until the legislature could get around to agree who would be named the next United States senator.

And that was the impetus, I think, behind the adoption of the 17th Amendment, to provide for direct election of senators. We have seen, in the last few months, real fiascoes relating to the appointment of senators from Illinois and New York. And this is nothing to denigrate the people who eventually were appointed and have been seated in the Senate. They are fine people. But the process on how they got to the Senate, I think, really opens up a lot of questions.

This amendment will end up resolving those questions, and that is, as soon as there is a vacancy in the Senate, a special election will be called pursuant to state law, and the seat will be filled relatively promptly by a senator with a mandate rather than a senator who has a friend who happens to be the governor at the time.

So I'm glad that this is going to be on a fast track. We do need to have a debate on this. I think this debate is going to be healthy. And it's going to be healthy particularly in the light of the criticism that Chairman Dreier and I received when we stood up against people who were suggesting that we have appointed House members. This goes in the direct opposite of that. And I think that we've shown why we should never have appointed House members, because that would just compound the situation with the senators even more.

So I think we'll all be happy to answer questions. I will give a shot back -- Senator Feingold, maybe you were there when I was the author of the bill that reduced the age of majority in Wisconsin from 21 to 18. And that may have --

SEN. FEINGOLD: Deeply grateful.

REP. SENSENBRENNER: -- confirmed --

(Cross talk.)

REP. SENSENBRENNER: -- instant adulthood!

SEN. FEINGOLD: I got to vote for George McGovern.

REP. SENSENBRENNER: Yes. Right. That's great, great, great.

SEN. FEINGOLD: I was 19. (Laughter.)

REP. BREIER: Let me just say that we are also going to make history. Before -- never -- never in my life have I spoken for John Conyers, but -- (laughter) -- I'm about to, because when I telephoned him and threw this proposal out, I talked about the fact that he and I together have consistently opposed constitutional amendments for the exact same reason that Lamar Smith pointed to. It is very, very difficult to amend the Constitution. And I'm proud to have voted against most all of the constitutional amendments that have been proposed by my party. And my gauge is amendments should increase the rights and opportunities for the American people. If it can't be done statutorily, it's necessary for us to do it by amending the Constitution.

When I called John Conyers, we shared that view in our discussion, and he said, absolutely, I very much want to cosponsor this. And over the past few days, he's told me that it is a very high priority -- would be a very high priority for him to be here with us as we unveil this today. Obviously, I know why things have changed, for the exact same reason that I'm going to be before the administration committee at 3:30 this afternoon. He's testifying right now before the administration committee to ensure that Lamar Smith and Jim Sensenbrenner have all the resources they need to continue with their work. But I know that he would want me to make it clear that this is, as Senator Feingold said, bipartisan, bicameral. And we want to do everything that we can to move it just as quickly as possible.

So we'd be happy to take questions. Yes?

Q Senator Feingold -- (off mike) -- in the Senate, particularly those who've been recently appointed?

SEN. FEINGOLD: Yes. Some are not comfortable with it because they were appointed. Others say, you know, this is actually true that we should have a different system. I don't expect any of them to be leading the charge on this. But whether or not they vote for it is an open question. And, of course, it's a high bar, so we're going to need every vote we can get. Maybe by the time we get this to the point where it needs to be, they'll have already been elected and they'll feel more comfortable about it.

REP. BREIER: And I would say that I think that if you look at the vote that Chairman Sensenbrenner mentioned, as did I, in the House of Representatives with over 350 members voting in opposition to our shifting to appointments in the House of Representatives, I have little doubt that with the team that we've already assembled here that we would have a very strong bipartisan vote.

Do you all agree?

REP. SENSENBRENNER: Okay, well, let me make one other point. And that is, is that appointed senators' survival rate is pretty low. Elected senators have a mandate from the people. Appointed senators have a mandate from one person, the governor. And in terms of effective representation in the Senate, you've got a lot more clout if you were sent there by the people, rather than having a friend who happened to be governor at the time.

SEN. FEINGOLD: On that point, I just want to make a comment about the politics of this.

REP. SENSENBRENNER: Yeah.

SEN. FEINGOLD: People are saying, well, you know, this isn't a good idea. Your party has the governorship. You want to be able to appoint somebody. Congressman Sensenbrenner is right. This might be the fastest way to lose the seat for your party, because instead of having somebody that has the people's mandate, you have this appointed person by a member of your own party. You might lose, and in fact you often do.

REP. DREIER: Senator Feingold, let me just go back here to something you said earlier. You said some of the decisions in -- (off mike) -- in New Hampshire and Colorado have driven this process. Everybody understands what happened in Illinois. Everybody understands to a lesser degree what happened in New York, and to a lesser degree Delaware. But New Hampshire -- (technical difficulties) -- be in the same league. Is that fair to sort of lump them with --

SEN. FEINGOLD: In what respect?

REP. DREIER: Well, I mean -- I mean, you don't have indicted governors in those states --

SEN. FEINGOLD: No, this isn't premised on the notion of a governor being indicted.

REP. DREIER: Right, but those states --

SEN. FEINGOLD: This is about the fact that -- you know, I think about people like John Conyers and others, or Jim Sensenbrenner, or the leadership, on the right to vote. What's the right to vote for? It's not just this theoretical thing. What do you get to vote for?

Well, one of the rarer things you get to do is vote for an open seat for the United States Senate. How often does that happen? This is really about the fundamental right of an American to vote. This has nothing to -- of course, this was highlighted, and it would have seemed almost esoteric, had not it not been for these bizarre chapters in Illinois and New York. But this is about a more fundamental issue. It is will one person in the state decide who the senator is going to be, or will every person in the state have an opportunity to vote? I think it's a right-to-vote issue.

REP. SENSENBRENNER: Chad? Chad, if I could just add to that, you know, as far as mentioning states, I was elected here with Judd Gregg in 1980. We came in as classmates. And he is highly regarded by all of us, I know. But the fact is, as we looked at the fact that there is a Democratic governor in New Hampshire, and clearly this notion of ensuring that there would be Republican representation up until an election could be held, I think created a scenario whereby that seat, as far as I'm concerned, should not be filled until the people have an election.

So in at least four of the five vacancies, I believe that there have been questions to the point where we should -- I think it underscores the importance of our effort here.

Q (Off mike) --

REP./SEN. : Jim --

Q -- with all due respect, I don't want to be the skunk at the garden party -- (off mike) -- the esteemed senator -- (off mike) -- but --

(Laughter.)

REP./SEN. : Is that what made it a garden party? The fact that Russ Feingold was here? (Laughter.)

REP./SEN. : Yeah.

Q A constitutional amendment efforts -- (off mike) -- spawn some headlines, and then they fizzle out and they go away. We don't do it that often.

Inasmuch as I believe the 17th Amendment allows the states to change -- because some states have, Alaska most recently -- isn't the effort more -- should this be directed towards states changing what they can already do?

REP. DREIER (?): Well, the Wisconsin model, I think, is a great one, and at the end of the day, there may be 50 states that choose to follow Wisconsin. And I think that Lamar Smith put it very well when he talked about the need that we have to have real care as proceed with this effort. But we've -- Lamar said that this was an unprecedented gathering. He doesn't believe that there's a constitutional amendment that's ever been proposed with this kind of bicameral and bipartisan approach. And by virtue of that, I think that it enhances the prospect for success.

REP. : Let -- you know, let me also say that if you look at the amendments to the Constitution, most if not all of them, with the exception of the income tax amendment, have expanded the people's rights. The Bill of Rights expanded the people's rights. We have six or seven of the amendments that actually broadened the franchise by constitutional amendment -- to women, to 18-year-olds; prohibiting the poll tax; and the like. We had an amendment abolishing slavery.

So this amendment is in the tradition of most of the other amendments to the U.S. Constitution in expanding rights of the people. The 17th Amendment expanded the people's rights to elect their senators, but it didn't go far enough. That's why we're here today.

REP./SEN. : Yes?

Q Senator Feingold, Senator, right now -- (off mike) -- if you have special elections -- (off mike) -- it might be months before -- (off mike) -- to name somebody -- (off mike) -- 54 right now -- (off mike) -- in this election.

I think that's why the provisions added -- (off mike) -- to name somebody while the discussion (off mike) --

SEN. FEINGOLD: Well --

Q -- (off mike) -- and the other one is the risk of -- that that's just a (tax ?) on Congress and many members were eliminated because of that -- (off mike) -- in place of a special election (off mike) --

SEN. FEINGOLD: Well, we found in Wisconsin that it is not difficult to dovetail these vacancies for the House, and in the case of Proxmire for the Senate, with our current elections. We have elections in February; we're going to have them in a few days. We have elections in April, September primary, November. It is not something that takes months and months. It works quite quickly. I think there's a 30-day period after the certification for nomination papers, and another period, and another period.

It goes quite smoothly. So I think this is a myth that somehow this is some long, drawn-out process. And it fact, it affected -- it might be quicker than Minnesota to going through. (Laughter.)

The other thing is -- I'll let Congressman Sensenbrenner -- but on the other point, look, this is a separate issue. The issue of what happens if there's a disaster, we can discuss it, we can debate it. I can certainly why there is concern about for the first time appointing House members. I am the chairman of the Constitution Subcommittee, have held hearings with John Cornyn about whether there should be such an amendment.

But the notion that these two issues should be tied together, I think, is absurd. In the normal course of things, every single member of the Congress should be elected by popular vote.

REP. DREIER (?): Let me say, out here I live in the western part of Alexandria, and there was a vacancy in the Virginia House of Delegates. Governor Kaine scheduled a special election 16 days after the resignation so that the seat would be filled prior to the convening of the Virginia legislature for its session this year. So if a state wants to, they can have a really quick special election. And that's what happened in this case.

SEN. FEINGOLD: And David, let me just say that one of the things that we found -- I mean, you've just now brought up the whole debate that Mr. Sensenbrenner and I were involved in that was very protracted, and it was a challenge that we faced.

We argued that in the wake of a terrible tragedy and disaster, along with getting a roof over your family's head and feeding them, choosing your leaders is a very important part of recovery. And Professor Walter Dellinger, the former solicitor general, came before the Rules Committee and testified that he believed it more important for us to have fewer elected leaders choose the direction of the country than having appointed leaders in the capacity that we were debating at the time.

So I think that if you look at the -- if you go back and look at the debate that we had on this issue of appointments in the House of Representatives, much of it will apply to this debate as it relates to the Senate.

Q Can I ask Representative Smith, on behalf of the Judicial Committee, do you have any expectations that there will be hearings? Have you talked to the Chairman.

REP. DREIER: Mr. Conyers is actually on his way. He's going to be here momentarily.

STAFF: He's on his way. He's on his way.

REP. SMITH: John Conyers will be here momentarily. Actually, he spoke to me about this very subject, oh, ten days, two weeks ago. So it's clearly on his mind. It must have been right after David Dreier talked to him. And I would expect in the normal course of events that we would have a hearing. But check with Chairman Conyers when he arrives. I certainly would support that.

(Cross talk.)

REP. DREIER: Well, any other questions before Mr. Conyers gets here?

They said that he'll be here in just a second.

STAFF: (Off mike) -- on their way four minutes ago. (Off mike.)

REP. DREIER: And John Conyers moves very quickly. We know that.

REP. : We can get out of here before we put our foot in our mouth, Dave? (Laughter.)

REP. DREIER: Okay. Thank you all very much.

STAFF: Do you want to wait -- (off mike)?

REP. DREIER: Well, you know what? They'll be able to talk to -- (off mike).

Q Are you going to get Lisa Murkowski to sign on as an original cosponsor in the Senate?

REP. DREIER: You know, I mean, I think it's possible, because -- you know, I know that they made a change in Alaska right after her appointment, right? And so it's possible.

And at the end of the day, Jim, I mean, we might end up exactly where you've said. So.

Q (Off mike.)

REP. DREIER: Okay. Yeah, yeah, yeah. Why don't we wait a second for John?

(Pause for Chairman Conyers.)

Here he is! The man of the hour. (Cheers, laughter.)

REP. CONYERS: I covered for you.

REP. DREIER: I made -- yeah, I made -- I know -- I made history.

REP. CONYERS: You were covering for me.

REP. DREIER: Yeah, exactly. I made --

REP. CONYERS: How are you?

REP. DREIER: I said not only were we making history with this constitutional amendment, but we made history in that for the first time ever, I spoke for John Conyers. So I already offered your statement, but you can now clean up my mess that I left behind here.

Q You said you -- you were speaking for me and I was speaking for you. That's --

REP. DREIER: That's right.

REP. CONYERS: That's right. I was covering for him for a little problem of budget for the 111th Congress. You know --

REP. DREIER: Well, they want to hear from you, John.

REP. CONYERS: I endorse everything that's been -- (laughter). No, I think this is a question worth inquiry. The committee will be moving forward. I don't know if they're doing any discussion of a joint hearing.

REP. DREIER: Actually, Russ Feingold just mentioned that.

REP. CONYERS: The Senate and the House or --

REP. DREIER: He chairs the Constitution Subcommittee in the Senate, so he mentioned the idea of that.

REP. CONYERS: Yeah, so it -- we're thinking about how to get this moving. And I'm very proud to join Dreier, Smith, Sensenbrenner, Feingold and myself -- there'll probably be others that really feel that this is an appropriate time to examine how people come to the Senate.

Remember it used to -- used to -- this is improved from the old system, but we now think that we've probably reached a point in our democracy where they should be elected, just like we are.

It's not an awfully complicated subject for me. And we look forward to working with you on it. I congratulate you for your work.

REP. DREIER: Thank you very much, Mr. Chairman.

REP. CONYERS: Thank you.

REP. DREIER: Any questions for --

Q Do you plan hearings, Mr. Chairman?

REP. CONYERS: Absolutely.

Q Can you tell us how soon, roughly?

REP. CONYERS: Roughly? Roughly, I don't know. (Laughter.)

REP. DREIER: Any other questions?

Q Mr. Dreier?

REP. DREIER: Yeah, Todd?

Q Do you think you could support a stimulus bill that was 789 billion (dollars) -- a lot smaller than what the House passed out -- that was 35 percent tax cuts?

REP. DREIER: You know, I'm not actually looking at spending levels, Todd. I mean, from my perspective, I think we need to look at a bold, strong, dynamic, growth-oriented package. And so the level of spending is not the gauge that I'm using in determining this. Okay?


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