Matthew Shugart and Steven Taylor have interesting posts on the subject, currently topical because of uncertainly surrounding the health of South Dakota’s Senator Tim Johnson, on the process for replacing vacancies in the Senate.
Both argue, persuasively, that the ability of governors to appoint replacements for the remainder of a given Congress is anachronistic. Shugart correctly notes that the “Republican party is a heartbeat and one act of partisan cronyism away from regaining what the voters stripped it of in November’s election: Control of the United States Senate.” Taylor asks, “why should a partisan official get to make the determination as to whom will serve in the Senate when the post is one that is meant to represent the electorate?”
Both suggest that special elections, as is required for the House of Representatives, are more democratic and I agree.
The rationale for treating Senators differently is that the Senate represents states, not voters. Even though the 17th Amendment provided for direct election, the Senate is still one of the main vestiges of Federalism that remain. Still, the culture has shifted dramatically in recent decades and people think of Senators as mere at-large congressmen.
Even if, for reasons of tradition or expense, we decided that temporary appointments were the way to go, the current mechanism is still a bad one. There’s something quite disturbing about a party switch–let alone a potential switch in control of the Senate–happening because of the death or incapacity of an elected official.
The simplest alternate would be a gentleman’s understanding that governors of whatever party would appoint an able member of the elected Senator’s party, presumably in consultation with party leaders in the state. Unfortunately, this would be unenforceable and political considerations too often trump honorable behavior.
A more complicated possibility would be to have the elected Senator appoint his prospective replacement ahead of time. Every Senator, upon election, would be asked to nominate a successor in the event he is removed from office. That person would almost surely be from the Senator’s party and reasonably similar in ideology, making it much more likely than under the current system that the replacement would resemble the elected Senator.
Indeed, there is no Constitutional reason I can think of where the replacement couldn’t be temporary, as provided for presidents under the 23rd Amendment. Under that system, Tim Johnson could worry about recovering, his constituents would still be represented in the Senate, and Johnson could resume office when he’s able. That strikes me as the best outcome for all concerned.
