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The Senate Loses its Cool: The Undemocratic Ways States Fill Senate Vacancies

by Paul Fidalgo // Published October 12, 2007
A FairVote Innovative Analysis

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Facts in the Spotlight

Number of U.S. Senators appointed without election since 1913: 179
Number of U.S. House members ever to serve without election: 0

Number of states that always fill U.S. Senate vacancies by election: 3
Number of states that always fill U.S. House vacancies by election: 50 _ _ _

Democracy is all the rage: In the grand scheme of history, allowing voters to directly elect U.S. Senators is a new, hip concept. Before the ratification of the 17th Amendment in 1913, senators were chosen by state legislatures, leaving only members of the House serving at the will of actual voters. Perennial presidential candidate Alan Keyes may oppose the amendment, but it would be something of a shock if this particular electoral fad - and important advance for democracy - did not endure.

That"s why it"s curious that we have so little debate about extending this right of election when it comes to filling Senate vacancies. Even today, only three states allow voters to directly fill Senate vacancies. The remaining forty-seven states have politicians instead of voters appoint Senate replacements.

Contradictions in coolness: Why should it be convention to augment a fully democratic process with a totally undemocratic one? Taking a hot new trend like the popular election of senators and attaching to it an utterly antiquated proviso such as appointments to fill vacancies is akin to buying an iPod and wondering why it won't play 8-track tapes. They are contradictions and can make one look horribly out of touch.

Take the perverse situation the nation encountered earlier this year, when Sen. Tim Johnson (D-S.D.) was hospitalized. The expectation was that with a Republican governor in South Dakota, a Republican would be appointed to fill the seat - reversing control of the Senate just weeks after an election in which voters handed the chamber to the Democrats. There are numerous states where governors of one party could replace vacancies created by the death or departure of a senator of the opposing party - a reality that simply doesn't make sense from a post-17th amendment perspective.

Democracy"s exclusive clique: We saw this unfashionable electoral accessory on display recently in Wyoming, where the untimely death of Sen. Craig Thomas (R-Wyo.) resulted in an "American Idol"-like casting call for "nominees" to replace him -- one of which, John Barrasso, was selected by the governor to take office. This at least contained some pretence of citizen involvement, unlike most states wherein the "Star Search" stage is skipped entirely, and the governor simply appoints the replacement of his or her choice with no input from the voters whom that replacement will go on to represent.

Since 1913, 179 senators have been appointed undemocratically. Only three states, Massachusetts, Oregon and Wisconsin, now mandate a special election to fill Senate vacancies. A fourth, Oklahoma, allows for a special election outside of a certain time period before the next congressional election.

Representin" in da House: In contrast, the House has retained its historical coolness by maintaining its democracy cred (I imagine this is the first and last time the House will be referred to as "cool"). For all the talk about the founders being suspicious of representative democracy, they certainly cared about it for elections to the body projected at the time to be most powerful - the one that would declare war, appropriate money and pursue impeachment.

No Member of the House has ever served whom his or her constituents did not elect. The recent passing of Reps. Jo Ann Davis (R-Va.) and Paul Gilmore (R-Ohio) has served to illustrate that vacancies in the People"s House are always filled by way of a new election, helping to ensure that their replacements will have faced the voters they soon will represent.

Appointed senators, however, are accountable only to the elected official who coronated them, turning them into instant entrenched incumbents - and therefore all the more difficult to remove from office regardless of their job performance.

Because of governors" appointment power, sitting senators who might otherwise wish to leave office are forced to reconsider their exits" political implications if their state"s governor hails from the opposing party, whether their reasons are health related, as in Sen. Johnson"s case, or for PR concerns. Would Senate Republicans be so eager to oust Larry Craig (R-Idaho) if the governor of Idaho were a Democrat? Joining the in-crowd: Appointments bring political gaming and backroom deals into the selection process, a fad best left to the junk drawer of history, along with pet rocks and Garbage Pail Kids. Congress can create incentives for states to fill vacancies through special elections, but if it does not, the states themselves can work to follow the examples of Oregon, Wisconsin, and Massachusetts. Much like the Beatles or James Dean, no matter how much time passes, democracy remains in fashion.

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Previous editions of Innovative Analysis can be found here.