To Appoint or Not To Appoint? That is the question.

Gubernatorial appointments to the Senate have not gone very smoothly as of late. Anyone who has paid a modicum amount of attention to the news over the past four months is well versed in the sad displays surrounding the appointment of Rolland Burris to the Senate by then-Illinois Governor Rod Blagojevich and the short-lived bid of Caroline Kennedy to take Hillary Clinton's New York Senate seat. These pathetic spectacles would be comical if the issue were not so serious. They surely do not bring dignity or legitimacy to the United States Senate!

To correct a process that is so obviously broken, California Senator Russ Feingold has introduced a proposed constitutional amendment that would mandate special elections to fill open Senate seats. This would bring the filling of Senate vacancies into line with the process ordained by the original Constitution for the filling of House vacancies and remove any doubt or question around senatorial successions. Where the people vote in open, free and fair elections, there is no question regarding who their legitimate representatives are.

If you haven't noticed by now, one of my hobbies is to consider the pros and cons of proposed amendments. Since the Senate and House Judiciary subcommittees will hold a joint hearing on this proposed amendment today, now seems as good a time as any to evaluate this amendment.

Feingold's proposed constitutional amendment reads as follows:

IN THE SENATE OF THE UNITED STATES

January 29, 2009

Mr. FEINGOLD (for himself, Mr. BEGICH, and Mr. MCCAIN) introduced the following joint resolution; which was read twice and referred to the Committee on the Judiciary

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United States relative to the election of Senators.

Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States within seven years after the date of its submission by the Congress:

`Article --

`Section 1. No person shall be a Senator from a State unless such person has been elected by the people thereof. 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.

`Section 2. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as a part of the Constitution.'.

I have stated a preference for repealing the Seventeenth Amendment and going back to the original constitutional design where State Legislatures filled their State's two Senate seats. My support for a constitutional change to mandate special elections to fill open Senate seats might seem contradictory to this stated preference, but I also realize we live in a world in which the Seventeenth Amendment will not be repealed any time soon. Elections are the ultimate process that governs our country, and of all of our governing institutions, elections are, next to the Constitution itself, the most foundational and legitimate.

In addition, appointment by one man (the Governor) as opposed to appointment by a State's Legislature is a difference of kind and hardly comparable. The original constitutional senatorial selection mechanism was part of a broader scheme of federalism that the Founders put in place (the other components of federalism being the electoral college, state militias, the Second Amendment, juries, courts, and the constitutional convention process). When all of these parts worked together, they served to maintain a federal / state balance. Many of these components of the Founders' federalism have either vanished or fundamentally changed however, and senatorial appointments by Governors do nothing to move us towards a federalism re-balance.

The most prolific objection I have heard against Feingold's proposed amendment is the terrorism question - "What if terrorism or some other calamity killed every member of Congress? At least Senators could currently be appointed, but Representatives have to be elected. Mandating senatorial special elections would make it impossible to quickly reconstitute the Senate, just as it is currently impossible to reconstitute the House."

Honestly, if this is the best the opposition has, then this amendment should easily pass. In over 200 years of history, a desperate Revolutionary War that the Congress led, a War with the British that saw Washington D.C. burned to the ground, a devastating Civil War that tore the country apart, two World Wars, multiple economic crises, a Cold War fraught with the very real possibility of nuclear annihilation, and the terrorist attacks of 9/11/2001, are we *so* afraid of some theoretical event that has very little real chance of succeeding in the first place? Do we design our normative, fundamental constitutional principles around the most extreme of statistical possibilities?

Even in the unlikely event that such an attack did take place *and* was successful in completely destroying the Congress, special elections could be held within two to three months and voila la! You suddenly have a reconstituted Congress that is untainted by questions of legitimacy and free of suspicion over who it speaks for - special interests or the People. Even in the most dire of circumstances that threatened our nation's survival, President Lincoln prosecuted the War against the Confederacy for months before Congress convened in the summer of 1861. Elections are *not* a luxury that we suddenly throw out the window when we think they are no longer convenient. They help define who we are as a people and how we come together in consensus, particularly in tough times. If we want efficiency to inform our fundamental design of governance, might I suggest Machiavelli's The Prince?

So Feingold's constitutional amendment is a much needed corrective to a major defect in the Seventeenth Amendment. If we are going to keep direct elections of Senators as our preferred method of selection, we are better off applying that method in all cases, especially where emergencies are concerned.