    [Senate Hearing 111-203]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 111-203

      S.J. RES. 7 AND H.J. RES. 21: A CONSTITUTIONAL AMENDMENT CONCERNING
                                SENATE VACANCIES

    =======================================================================

                                 JOINT HEARING

                                   before the

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                                      and

                           HOUSE OF REPRESENTATIVES,
                           COMMITTEE ON THE JUDICIARY
      SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES,

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   ----------

                                 MARCH 11, 2009

                                   ----------

                           Senate Serial No. J-111-10

                                   ----------

                           House Serial No. J-111-34

                                   ----------

             Printed for the use of the Committee on the Judiciary

                                                            S. Hrg. 111-203

      S.J. RES. 7 AND H.J. RES. 21: A CONSTITUTIONAL AMENDMENT CONCERNING
                                SENATE VACANCIES

    =======================================================================

                                 JOINT HEARING

                                   before the

                        SUBCOMMITTEE ON THE CONSTITUTION

                                     of the

                           COMMITTEE ON THE JUDICIARY
                              UNITED STATES SENATE

                                      and

                           HOUSE OF REPRESENTATIVES,
                           COMMITTEE ON THE JUDICIARY
      SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES,

                         ONE HUNDRED ELEVENTH CONGRESS

                                 FIRST SESSION

                                   __________

                                 MARCH 11, 2009

                                   __________

                           Senate Serial No. J-111-10

                                   __________

                           House Serial No. J-111-34

                                   __________

             Printed for the use of the Committee on the Judiciary

                      U.S. GOVERNMENT PRINTING OFFICE
    54-105 PDF                WASHINGTON : 2010
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    20402-0001

                      PATRICK J. LEAHY, Vermont, Chairman
    HERB KOHL, Wisconsin                 ARLEN SPECTER, Pennsylvania
    DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
    RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
    CHARLES E. SCHUMER, New York         JON KYL, Arizona
    RICHARD J. DURBIN, Illinois          JEFF SESSIONS, Alabama
    BENJAMIN L. CARDIN, Maryland         LINDSEY O. GRAHAM, South Carolina
    SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
    RON WYDEN, Oregon                    TOM COBURN, Oklahoma
    AMY KLOBUCHAR, Minnesota
    EDWARD E. KAUFMAN, Delaware
                Bruce A. Cohen, Chief Counsel and Staff Director
                  Nicholas A. Rossi, Republican Chief Counsel
                                     ------

                        SUBCOMMITTEE ON THE CONSTITUTION

                    RUSSELL D. FEINGOLD, Wisconsin, Chairman
    DIANNE FEINSTEIN, California         TOM COBURN, Oklahoma
    RICHARD J. DURBIN, Illinois          ARLEN SPECTER, Pennsylvania
    BENJAMIN L. CARDIN, Maryland         LINDSEY O. GRAHAM, South Carolina
    SHELDON WHITEHOUSE, Rhode Island     JOHN CORNYN, Texas
    EDWARD E. KAUFMAN, Delaware
                   Robert F. Schiff, Democratic Chief Counsel
                     Brook Bacak, Republican Chief Counsel
                           COMMITTEE ON THE JUDICIARY

                     JOHN CONYERS, Jr., Michigan, Chairman
    HOWARD L. BERMAN, California         LAMAR SMITH, Texas
    RICK BOUCHER, Virginia               F. JAMES SENSENBRENNER, Jr.,
    JERROLD NADLER, New York                 Wisconsin
    ROBERT C. ``BOBBY'' SCOTT, Virginia  HOWARD COBLE, North Carolina
    MELVIN L. WATT, North Carolina       ELTON GALLEGLY, California
    ZOE LOFGREN, California              BOB GOODLATTE, Virginia
    SHEILA JACKSON LEE, Texas            DANIEL E. LUNGREN, California
    MAXINE WATERS, California            DARRELL E. ISSA, California
    WILLIAM D. DELAHUNT, Massachusetts   J. RANDY FORBES, Virginia
    ROBERT WEXLER, Florida               STEVE KING, Iowa
    STEVE COHEN, Tennessee               TRENT FRANKS, Arizona
    HENRY C. ``HANK'' JOHNSON, Jr.,      LOUIE GOHMERT, Texas
      Georgia                            JIM JORDAN, Ohio
    PEDRO PIERLUISI, Puerto Rico         TED POE, Texas
    LUIS V. GUTIERREZ, Illinois          JASON CHAFFETZ, Utah
    BRAD SHERMAN, California             TOM ROONEY, Florida
    TAMMY BALDWIN, Wisconsin             GREGG HARPER, Mississippi
    CHARLES A. GONZALEZ, Texas
    ANTHONY D. WEINER, New York
    ADAM B. SCHIFF, California
    LINDA T. SANCHEZ, California
    DEBBIE WASSERMAN SCHULTZ, Florida
    DANIEL MAFFEI, New York
    [Vacant]
                Perry Apelbaum, Staff Director and Chief Counsel
          Sean McLaughlin, Minority Chief of Staff and General Counsel
                                     ------

      Subcommittee on the Constitution, Civil Rights, and Civil Liberties

                       JERROLD NADLER, New York, Chairman

    MELVIN L. WATT, North Carolina       F. JAMES SENSENBRENNER, Jr.,
    ROBERT C. ``BOBBY'' SCOTT, Virginia  Wisconsin
    WILLIAM D. DELAHUNT, Massachusetts   TOM ROONEY, Florida
    HENRY C. ``HANK'' JOHNSON, Jr.,      TRENT FRANKS, Arizona
      Georgia                            STEVE KING, Iowa
    TAMMY BALDWIN, Wisconsin             JIM JORDAN, Ohio
    JOHN CONYERS, Jr., Michigan          LOUIE GOHMERT, Texas
    STEVE COHEN, Tennessee
    BRAD SHERMAN, California
    SHEILA JACKSON LEE, Texas

                         David Lachmann, Chief of Staff

                        Paul B. Taylor, Minority Counsel

                                C O N T E N T S

                                  ----------

                        STATEMENTS OF COMMITTEE MEMBERS

                                                                       Page

    Feingold, Hon. Russell D., a U.S. Senator from the State of
      Wisconsin......................................................     1
        prepared statement...........................................   226
    Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma......     3
        prepared statement...........................................   111
    Conyers, Hon. John Jr., a Representative in Congress from the
      State of Michigan..............................................     5
        prepared statement...........................................   187
    Durbin, Hon. Richard J., a U.S. Senator from the State of
      Illinois, prepared statement...................................   219
    Kaufman, Hon. Edward E., a U.S. Senator from the State of
      Delaware.......................................................     3
        prepared statement...........................................   235
    Lee, Sheila Jackson, a Representative in Congress from the State
      of Texas.......................................................   266
    Nadler, Hon. Jerrold, a Representative in Congress from the State
      of New York....................................................     5
    Sensenbrenner, F. James, Jr., a Representative in Congress from
      the State of Wisconsin.........................................     6
        prepared statement...........................................   296

                                   WITNESSES

    Amar, Vikram D., Associate Dean for Academic Affairs and
      Professor of Law, University of California, Davis School of
      Law, Davis, California.........................................    24
    Begich, Hon. Mark, a U.S. Senator from the State of Alaska.......     8
    Dreier, Hon. David, a Representative in Congress from the State
      of California..................................................    10
    Edgar, Bob, President and Chief Executive Officer, Common Cause,
      Washington, DC.................................................    16
    Karlan, Pamela S., Kenneth and Harle Montgomery Professor of
      Public Interest Law, Stanford Law School, Stanford, California,
      and Co-Director, Stanford Law School Supreme Court Litigation
      Clinic.........................................................    26
    Kennedy, Kevin J., Director and General Counsel, Wisconsin
      Government Accountability Board, Madison, Wisconsin............    18
    Neale, Thomas H. Specialist in American National Government,
      Congressional Research Service, Wahsington.....................    14
    Schock, Hon. Aaron, a Representative in Congress from the State
      of Ilinois.....................................................    12
    Segal, David, Analyst, FairVote, Rhode Island State
      Representative, Providence, Rhode Island.......................    22
    Spalding, Matthew, Director, B. Kenneth Simon Center for American
      Studies, The Heritage Foundation, Washington, D.C..............    20

                             QUESTIONS AND ANSWERS

    Responses of Vikram Amar to questions submitted by Senators
      Coburn and Conyers.............................................    41
    Responses of Bob Edgar to questions submitted by Senators Coburn
      and Conyers....................................................    50
    Responses of Pamela S. Karlan to questions submitted by Senators
      Coburn and Conyers.............................................    59
    Responses of Kevin J. Kennedy to questions submitted by Senators
      Coburn and Conyers.............................................    65
    Responses of Thomas H. Neale to questions submitted by Senators
      Coburn and Conyers.............................................    76
    Responses of David Segal to questions submitted by Senators
      Coburn and Conyers.............................................    82
    Responses of Matthew Spalding to questions submitted by Senators
      Coburn and Conyers.............................................    89

                           SUBMISSIONS FOR THE RECORD

    Amar, Vikram D., Associate Dean for Academic Affairs and
      Professor of Law, University of California, Davis School of
      Law, Davis, California, statement..............................    95
    Begich, Hon. Mark, a U.S. Senator from the State of Alaska,
      statement......................................................   106
    Brunner, Jennifer, Ohio Secretary of State, Columbia, Ohio,
      statement......................................................   109
    Continuity of Congress, Lloyd Cutler, Co-chairman and Alari
      Simpson, Co-chairman, Washington, DC:
        Report.......................................................   113
        Associated Press, May 30, 2002, article......................   183
        New York Times, March, 14, 2002, article.....................   185
    Congressional Reserch Service, Washington, DC:
        Selected Data on Persons Appointed to the U.S. Senate, or
          Elected to the U.S. Senate in Special Elections, since the
          Ratification of the 17th Amendment to the Constitution in
          1913, memorandum...........................................   191
        General Statistics on Special Elections: Corrected,
          memorandum.................................................   208
        Length of Seat Vacancy Before Gubernatorial Appointment,
          memorandum.................................................   211
    Dreier, Hon. David, a Representative in Congress from the State
      of California, statement.......................................   214
    Edgar, Bob, President and Chief Executive Officer, Common Cause,
      Washington, D.C., statement....................................   221
    Karlan, Pamela S., Kenneth and Harle Montgomery Professor of
      Public Interest Law, Stanford Law School, Stanford, California,
      and Co-Director, Stanford Law School Supreme Court Litigation
      Clinic, statement..............................................   228
    Kennedy, Kevin J., Director and General Counsel, Wisconsin
      Government Accountability Board, Madison, Wisconsin, statement.   237
    Neale, Thomas H. Specialist in American National Government,
      Congressional Research Service, Washington, statement..........   271
    Otter, C.L. ``Butch'', Governor, State of Idaho, statement.......   273
    Perry, Rick, Governor, State of Texas, statement.................   274
    Reed, Sam, Secretary of State of Washington, Olympia, Washington,
      letter.........................................................   275
    Schock, Hon. Aaron, a Representative in Congress from the State
      of Ilinois, statement..........................................   276
    Segal, David, Analyst, FairVote, Rhode Island State
      Representative, Providence, Rhode Island, statement............   287
    Spalding, Matthew, Director, B. Kenneth Simon Center for American
      Studies, The Heritage Foundation, Washington, D.C., statement..   301

      S.J. RES. 7 AND H.J. RES. 21: A CONSTITUTIONAL AMENDMENT CONCERNING
                                SENATE VACANCIES

                                  ----------

                           WEDNESDAY, MARCH 11, 2009

                                           U.S. Senate,
                              Subcommittee on the Constitution,
                                    Committee on the Judiciary,
                                      House of Representatives,
     Subcommittee on the Constitution, Civil Rights, and Civil
                                                     Liberties,
                                    Committee on the Judiciary,
                                                         Washington, DC
        The Subcommittees met, pursuant to notice, at 10:05 a.m.,
    in room SH-216, Hart Senate Office Building, Hon. Russ
    Feingold, Chairman of the Senate Subcommittee, and Hon. John
    Conyers, Jr., Chairman of the House Committee, presiding.
        Present: Senators Feingold, Cardin, Kaufman, and Coburn;
    Representatives Conyers, Nadler, Scott, Johnson, and Jackson
    Lee.

     OPENING STATEMENT OF HON. RUSS FEINGOLD, A U.S. SENATOR FROM
                         THE STATE OF WISCONSIN

        Chairman Feingold. The hearing will come to order. I want
    to welcome everyone to this joint hearing of the House and
    Senate Constitution Subcommittees on S.J. Res. 7 and H.J. Res.
    21, which are both proposed constitutional amendments
    concerning Senate vacancies. A special welcome to our
    colleagues from the House side, especially two longtime
    friends: John Conyers, the Chair of the House Judiciary
    Committee, who will act as the Chair of the House Subcommittee
    today, and, of course, James Sensenbrenner from my own State of
    Wisconsin, a former Chair of the House Judiciary Committee, who
    now serves as the Ranking Member of the House Subcommittee.
        I want to thank my new Ranking Member, Senator Coburn, and
    his staff for their great cooperation in putting this unusual
    hearing together. This is the first hearing that Dr. Coburn and
    I have worked on together--we have worked on many issues
    together--and I look forward to continuing the productive
    working relationship that we have had on those issues in the
    past as he takes on this new role.
        Joint hearings of House and Senate Committees are not
    unprecedented, but they are unusual. I think it is fitting that
    we are holding this particular joint hearing because the topic
    is so timely and so fundamental. There are now four Senators
    who will serve until the next general election, still 20 months
    away, who were not elected by their constituents. They serve
    because of what I have a called a ``constitutional
    anachronism,'' which allowed the Governors of their States to
    appoint them to serve.
        Now, I want to be clear. I don't have anything against
    these newest Senators. In fact, I have developed a good
    relationship with all of them and think a great deal of them. I
    hope and expect that they will serve with great distinction, as
    quite a few appointed Senators have done in the past. But when
    over 12 percent of our citizens are represented by someone in
    the Senate who they did not elect, I think that is a problem
    for our system of democracy. And it is a problem that I think
    only can be fixed properly by a constitutional amendment.
        In 1913, the citizens of this country, acting through their
    elected State legislatures, ratified the Seventeenth Amendment
    to the Constitution, providing for the direct election of
    Senators. That ratification was the culmination of a nearly
    century-long struggle. The public's disgust with the
    corruption, bribery, and political chicanery that resulted from
    the original constitutional provision giving State legislatures
    the power to choose United States Senators was a big motivation
    for the amendment. As we have seen in recent months,
    gubernatorial appointments may pose the same dangers. They
    demand the same solution and, that is, direct elections.
        The constitutional anachronism was created by the inclusion
    in the Seventeenth Amendment of a proviso, permitting State
    legislatures to empower their Governors to make temporary
    appointments in the case of an unexpected vacancy. Since the
    Seventeenth Amendment, 184 such appointments have been made. So
    this departure from the principle that was behind the
    Seventeenth Amendment itself--that the people should elect
    their Senators--is by no means an uncommon occurrence.
        I believe that those who want to be a U.S. Senator should
    have to make their case to the people whom they want to
    represent, not just the occupant of the Governor's mansion. And
    the voters should choose them in the time-honored way that they
    choose the rest of the Congress of the United States--in an
    election.
        This proposal is not simply a response to the latest cases
    that have been in the news over the past few months. These
    cases have simply confirmed my longstanding view that Senate
    appointments by State Governors are an unfortunate relic of the
    pre-Seventeenth Amendment era, when State legislatures elected
    U.S. Senators, and those legislatures might only meet for a few
    months a year. I view this issue, at base, as a voting rights
    question. The people of this country should no longer be
    deprived, for months or even years, of their right to be
    represented in the Senate by someone whom they have elected.
        Direct election of Senators was championed by the great
    progressive Bob La Follette, who served as Wisconsin's Governor
    and a U.S. Senator. We need to finish the job started by La
    Follette and other reformers nearly a century ago. No one can
    represent the people in the House of Representatives without
    the approval of the voters, and the same should be true for the
    Senate. I look forward to the testimony of our witness on this
    very important topic.
        And now, just prior to turning to our Ranking Member, I am
    going to turn to Senator Ted Kaufman of Delaware, who has to
    leave but who wants to make a brief statement.

    STATEMENT OF HON. TED KAUFMAN, A U.S. SENATOR FROM THE STATE OF
                                DELAWARE

        Senator Kaufman. Thank you, Mr. Chairman. I appreciate the
    courtesy, and I think this is a great hearing. I thank two
    great Chairs, Congressman Conyers and Congressman Feingold, and
    Ranking Members Coburn and Sensenbrenner, I think this is a
    good idea.
        As the only person in the room, I think, that this applies
    to, there have only been 185 appointed Senators in the history
    of the country, but I really associate my remarks to Chairman
    Feingold's remarks about the fact that this is a democracy,
    that the elected officials should be picked by a democracy. I
    think that is really the key part of our system. I have great
    faith in democracies. So I think the idea of having appointed
    Senators should yield to the idea of having elected Senators,
    even for special elections.
        The one concern I have, which I have expressed many times,
    as long as I have been involved in the Senate as a staff person
    and now as a Senator, is I have a real question about when we
    should be amending the Constitution. I think our Founding
    Fathers were--to say ``brilliant'' really understates it, in
    how they set this Government up. We have had a few
    constitutional amendments over the course of our Government. So
    I am looking forward to what you say, but basically I am
    concerned about amending the Constitution, but I think anything
    we can do to encourage Governors and State legislatures to do
    the right thing and have limited appointed Senators and have
    Senators elected would be a good thing.
        I have a statement to put in the record, and I want to
    thank you, Mr. Chairman and Chairman Conyers, for giving me
    this courtesy. I appreciate it.
        Chairman Feingold. I thank you, Senator, and I thank you
    for your service on this Committee.
        I am pleased now to turn to our Ranking Member of the
    Senate Subcommittee, Senator Coburn.

    STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
                                OKLAHOMA

        Senator Coburn. Thank you, Mr. Chairman. This marks the
    first hearing of the Senate Judiciary Subcommittee on the
    Constitution in this Congress, but it is also the first hearing
    I have attended as Ranking Member of this important
    Subcommittee. I consider it a high honor to serve in this role,
    as matters within this Committee's jurisdiction--such as
    constitutional amendments and rights, separation of powers and
    federalism, as well as civil rights and civil liberties--are
    among the Senate's most awesome responsibilities.
        I also consider it an honor to serve alongside Chairman
    Feingold, whose command of the law I have always respected. I
    look forward to working with him and his especially, and other
    members of this Subcommittee.
        It is fitting that our first order of business is a
    proposal to amend the Constitution. The matter at hand serves
    as a reminder of the gravity of our responsibilities as members
    of this Subcommittee.
        Like the Chairman, I do not consider constitutional
    amendments lightly. Modifying the Nation's founding document
    should only be done in the most compelling circumstances. Just
    this week, some seven proposed constitutional amendments were
    referred to this Subcommittee. While it is highly unlikely that
    all will be considered, our responsibility as members of this
    Subcommittee is to thoroughly vet and debate such proposals
    before they advance in Congress.
        After all, constitutional amendments are relatively rare.
    Since 1789, more than 5,000 proposals to amend the Constitution
    have been introduced in Congress, yet only 33 have gone to the
    States for ratification. By design, the Constitution is very
    difficult to alter. The Founders struck a brilliant balance by
    creating a document that is amendable, yet authoritative, and
    their design has served the Republic well.
        In reality, proponents of this--and any other--
    constitutional amendment face overwhelmingly unfavorable odds.
    Fortunately, proponents of the amendment at issue today do not
    have to wait for approval of supermajorities in the House and
    Senate and three-fourths of the States. The Constitution
    permits what the amendment would require.
        Although this hearing is intended to advance S.J. Res. 7
    and H.J. Res. 21, it may also lead to further discussion within
    the States about the most prudent way to fill their own Senate
    vacancies. These discussions began in light of the inordinate
    number of vacancies created after this most recent Presidential
    election. And, most notably, the scandal sparked by Illinois
    Governor Rod Blagojevich's efforts to fill the seat of our
    newly elected President exposed the potential for corruption in
    gubernatorial appointments. Although calls for a special
    election in Illinois were rejected at the time, the fallout
    from that appointment continues, and we find ourselves here
    today debating a proposal that would require for all States
    what one State would not do for itself.
        It is important to note that the vast majority of States
    have chosen to exercise their constitutional right to allow
    gubernatorial appointments. Ironically, the Chairman and I
    represent two of the small handful of States that do not allow
    such appointments. While the citizens of Wisconsin and Oklahoma
    have clearly determined that special elections are their own
    preferred course, whether the same approach is right for all of
    the other States is still an open question.
        Although the witness panel includes diverse perspectives,
    there are many important voices not present in today's debate.
    To that end, I would like to submit the statements from
    Governors who oppose this amendment, including the Governors of
    Texas and Idaho. I have yet to hear anyone espouse the virtues
    of appointed representation over elected representation, but I
    have heard legitimate concerns raised about the practical
    implications this amendment may have for the States. It is
    important that we carefully consider all sides of this debate
    before moving forward on this amendment, and I invite others to
    weigh in on this proposal, even after this hearing is over.
        I look forward to our witnesses' testimony. I thank, Mr.
    Chairman, for this, and I do look forward with great
    anticipation to working with you, and I would submit these two
    letters from the Governor of Texas and the Governor of Idaho.
        Chairman Feingold. They will be entered, without objection,
    and thank you, Senator Coburn.
        I now recognize the Chairman of the House Judiciary
    Committee, Mr. Conyers.

        STATEMENT OF HON. JOHN CONYERS, JR. A REPRESENTATIVE IN
                  CONGRESS FROM THE STATE OF MICHIGAN

        Chairman Conyers. Thank you very much, and good morning. It
    is a pleasure and honor, and a little bit intimidating, to be
    on the Senate side. Everything seems so formal and wonderful
    looking. Even the people that come in the doors to visit you
    seem to be more businesslike. We have got to check up for a
    little bit more equity in terms of the appointments of these
    buildings.
        Senator Coburn. The budgets.
        Chairman Conyers. We will look into the budget a little bit
    later.
        [Laughter.]
        Chairman Conyers. But it is always a pleasure to be here in
    these kinds of discussions with our colleagues in the other
    body, and I am happy that we are all here today.
        The only point I want to make before I yield to the
    Chairman of the Constitution Committee on the House Judiciary,
    Jerry Nadler, is to say that my only problem about this
    proposal is the possible cost to the States. I need to feel
    more comfortable about that, but the logic of it to me is
    perfectly feasible.
        The other thing I keep hearing a lot about is how much
    genius was invested in those that wrote the Constitution, and I
    have great admiration for the authors. But, you know, without
    the Bill of Rights, the first ten Amendments, the Constitution
    would have been roundly criticized. And so to think that we
    have to approach this with so much caution, about changing the
    Constitution, I do not think we need to be overly cautious
    about that. The requirement of approval by three-quarters of
    the States is a pretty daunting challenge for us to overcome.
        So if I can, Chairman Feingold, I would like to yield the
    rest of my time to Jerry Nadler.
        Chairman Feingold. Mr. Nadler.

    STATEMENT OF HON. JERROLD NADLER, A REPRESENTATIVE IN CONGRESS
                       FROM THE STATE OF NEW YORK

        Representative Nadler. Thank you, Mr. Chairman. I will not
    use the full 5 minutes. This is a timely hearing, and the
    issues we are going to examine are of the utmost importance. In
    recent months, questions have been raised once again--this
    happens periodically in our history--as to whether vacancies in
    the Senate should be filled by election rather than by
    gubernatorial appointment. The Constitution currently provides
    that States may choose whether to fill a vacancy by direct
    election or by appointment. Most States, as noted, have chosen
    the latter, but some have chosen the former. It is important
    that we consider whether there should be a uniform national
    rule to fill such vacancies as there is with vacancies in the
    House, or whether it would be better to allow the people of
    each State to decide for them how it should be done. I think we
    need to answer that question first.
        Having said that, my preference would always be for
    elections, but I have a couple of questions about this
    situation.
        Number one, if we were to go to a system of direct
    elections within some reasonable period--180 days or whatever--
    that would put a premium on immense amounts of funding without
    the time for fundraising and might tend to make the Senate,
    even more than it is already, a body of millionaires and
    celebrities and might tend to say that most people could not
    run, and that is one consideration that we would have to think
    about.
        Second is the question that we are going to have to address
    with respect to the House, and that is the question of what
    happens in, God forbid, the event of a terrorist attack where
    there are mass casualties. How do you reconstitute the House
    and the Senate quickly in the event of that kind of an
    emergency? The Senate can be reconstituted quickly now. The
    House cannot. That is something that we have to address and,
    with this amendment, it will make that situation impossible in
    the Senate as it is now in the House. And how could we address
    that?
        Those two questions, I think, have to be considered before
    we can come to a conclusion on the proposal before us. So I
    appreciate the Chairman for calling this hearing. I think we
    ought to consider these questions carefully, and I look forward
    to the testimony.
        I thank you and I yield back.
        Chairman Feingold. Thank you, Mr. Nadler.
        Let me now turn to the Ranking Member of the Subcommittee,
    Mr. Sensenbrenner.

    STATEMENT OF HON. F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE
                IN CONGRESS FROM THE STATE OF WISCONSIN

        Mr. Sensenbrenner. Thank you very much, Mr. Chairman. I
    think we ought to start out by saying that this hearing is not
    called to improve upon James Madison's prose. He was not the
    author of the Seventeenth Amendment. He was long gone and
    immortalized by the time there was enough support to pass a
    constitutional amendment to provide for the direction election
    of Senators.
        Currently, the Constitution's Seventeenth Amendment
    provides for the popular election of Senators, but it provides
    an exception in which States can allow Governors to appoint
    Senators to fill vacancies until a special election is held. As
    we have seen recently, such an appointment process is not only
    undemocratic, but it is prone to abuse.
        The time has come for Congress to pass an amendment to the
    Constitution that would require all Senate vacancies to be
    filled by special election. I am grateful to Congressman Dreier
    and my Wisconsin colleague on the other side of the Capitol,
    Senator Feingold, who have introduced such an amendment, which
    we will consider today. I am an original cosponsor of the
    amendment.
        The amendment would correct a constitutional anomaly that
    has too often been overlooked. When the Senate was first
    created, Senators were elected by State legislatures and not by
    the people. Because State legislatures were often in session
    only a few months a year, the original Senate provision of the
    Constitution included a means of replacing Senators when the
    legislatures were not in session. The mechanism was the
    temporary appointment by Governors of replacement Senators.
        Then came a series of notorious instances of corrupt deals
    between the State legislators and those whom they selected as
    Senators. As the Senate Historical Office points out,
    ``Intimidation and bribery marked some of the States' selection
    of Senators. Nine bribery cases were brought before the Senate
    between 1866 and 1906.''
        The result was the passage of the Seventeenth Amendment in
    1913, which provided for the popular election of Senators.
        However, in an effort to change as little of the original
    constitutional language as possible, the sponsors of the
    Seventeenth Amendment simply carried over the State Governor's
    appointment authority in the case of vacancies that was
    contained in the original Article I, Section 3. They did so
    with little debate, even though the removal of State
    legislatures from the election process rendered the original
    rationale for allowing temporary appointments obsolete.
        Indeed, the only direct mention of the ``vacancies''
    provision of the Seventeenth Amendment during congressional
    debate on that amendment in both the Senate and the House was
    made by Congressmen Mann and Rucker. Their remarks are
    exceedingly short, focusing mainly on grammatical points, and
    they do not include reference to any policy rationale behind
    the decision to retain the provision that allows Governors to
    appoint replacement Senators. That is not surprising, as there
    remained little policy rationale for those provisions.
        Consequently, it is clear from the historical record that
    the debate over the Seventeenth Amendment focused entirely on
    the policy of requiring the direct election of Senators, and
    not at all on the ability of Governors to appoint people to
    fill Senate vacancies.
        Today, however, with the recent example of the former
    Democratic Governor of Illinois and his appointee, Congress can
    no longer ignore this constitutional anomaly. It is now clear
    that the gubernatorial appointment provision can be subject to
    abuse as well, and it is time for Congress to belatedly address
    this issue.
        My own State of Wisconsin recognized the importance of
    codifying elections as an essential element of Senate
    membership the very same year the Seventeenth Amendment was
    ratified. In 1913, Wisconsin passed a law requiring all Senate
    seats to be filled by special election, and on an expedited
    basis. That provision has been successfully administered three
    times since then: in 1918, following the death in a hunting
    accident of Senator Paul Husting; in 1925, following the death
    of Senator Robert La Follette, Sr.; and in 1957, following the
    death of Joseph McCarthy. The amendment we consider today would
    allow the rest of the country, however belatedly, to consider
    amending our shared founding document to fully enshrine
    elections as a prerequisite for serving the people in our
    democracy.
        I look forward to hearing from all the witnesses today, and
    I would like to extend a special welcome to Kevin Kennedy of
    the Government Accountability Board of Wisconsin.
        I thank the Chair for yielding.
        Chairman Feingold. I thank you, Congressman Sensenbrenner,
    for your enthusiastic support, and I also want to welcome Mr.
    Kennedy particularly. We go back a long way, and we will hear
    from him later.
        Now we will go to the first panel of witnesses. Our first
    witness this morning is the Honorable Mark Begich of Alaska,
    who was elected to the U.S. Senate in 2008. Senator Begich was
    a member of the Anchorage Assembly for 10 years and served as
    the mayor of Anchorage from 2003 until his election to the
    Senate. He has also served on the University of Alaska Board of
    Regents, the Alaska Student Loan Corporation, and the Alaska
    Commission on Postsecondary Education. Senator Begich was the
    first Member of Congress to contact me after I announced my
    intention to introduce the Senate vacancies amendment, and I am
    proud to have him as a cosponsor of the amendment.
        Thank you for being here, Senator, and you may proceed.

    STATEMENT OF HON. MARK BEGICH, A UNITED STATES SENATOR FROM THE
                            STATE OF ALASKA

        Senator Begich. Thank you very much, Chairman Feingold and
    Chairman Conyers and other members here of the Committees, and
    thank you for the opportunity to testify today. As mentioned, I
    am from Alaska, the newly elected Senator from Alaska.
        I am honored to be an original cosponsor of Senate Joint
    Resolution 7, along with Senator McCain. When Senator Feingold
    proposed the constitutional amendment requiring that States
    hold special elections to fill vacancies, I was happy to agree
    to cosponsor.
        I did so for two reasons. The first is that my constituents
    feel very strongly about this issue. Just 5 years ago, they
    voted overwhelmingly to require a special election in the case
    of a vacancy in Alaska's U.S. Senate seats. That vote, in
    response to a citizen-run initiative, was nearly 56 percent in
    favor.
        In Alaska, that would be considered a landslide. In my own
    election as mayor of Anchorage in 2003, I won my election by 18
    votes over the threshold necessary to avoid a run-off election.
    So, again, 56 percent is considered a landslide. And I won this
    Senate seat by a little over 1 percent out of the more than
    327,000 votes.
        The second reason I support this amendment is more of a
    personal one. Some members of these subcommittees may know that
    my father served in the U.S. Congress in Alaska's at-large
    seat. In October 1972, Congressman Nick Begich was campaigning
    for re-election to his second term in the House. His small
    Cessna 310 left Anchorage on a stormy night bound for our State
    capital of Juneau. It never arrived.
        Also lost was House Majority Leader Hale Boggs of
    Louisiana, who was campaigning for my father. My father's aide
    and pilot also perished in this plane. I was 10 years old. My
    mother was left, along with me, with my five brothers and
    sisters.
        Besides the terrible loss for our family, I recall the
    tragedy today for what happened next. As the largest aviation
    search in Alaska's history up to that time continued, the
    already scheduled State general election was held 3 weeks
    later. Despite his disappearance, Congressman Begich was re-
    elected with better than 56 percent of the vote.
        In late December, my father was officially declared
    deceased, and a special election was set for March 1973. The
    two political parties nominated their candidates, an
    abbreviated campaign took place, and Don Young was elected
    Alaska's sole United States Congressman, a seat he has held
    since then.
        Throughout this ordeal, Alaskans were officially without
    representation in the House of Representatives. But my
    recollection--and my review of news reports from that era--show
    no outcry for the appointment of a new Congressman.
        Alaskans then, like Alaskans now, feel strongly that their
    elected representatives in the Federal Government should be
    exactly that--elected. The residents of my State believe that
    they alone have the power to select those representing them in
    the U.S. House and Senate.
        I know a number of arguments will be advanced in opposition
    to this proposed amendment to our Constitution: that a special
    election will cost much more or that a State's citizens will be
    disenfranchised during the vacancy.
        When balancing the relatively modest cost of a special
    election against one of the most fundamental principles of our
    democracy--the election of representatives of the people--I
    believe the expense is justified.
        And as recent examples have shown us with drawn-out and
    controversial appointment scenarios, I believe the time
    required to mount a special election is far more preferable to
    a gubernatorial selection.
        Mr. Chairman, to me and my constituents, this issue is a
    simple one: United States Senators should be elected by the
    voters of their States.
        I want to thank you for the opportunity to testify and give
    my personal story. Thank you.
        [The prepared statement of Senator Begich appears as a
    submission for the record.]
        Chairman Feingold. Thank you so much, Senator. It is very
    good to have you before this hearing.
        Our next witness this morning is the Honorable David
    Dreier, who has served California's 26th Congressional District
    in the U.S. House of Representatives since he was first elected
    in 1980. A graduate of Claremont McKenna College,
    Representative Dreier became the youngest Chairman of the House
    Rules Committee and the first from California 10 years ago. Not
    long after, Representative Dreier was selected to chair the
    State's Republican congressional delegation.
        I want to note that Mr. Dreier is in many ways responsible
    both for the momentum on this issue and for this joint hearing
    because he took the initiative and reached out to me several
    weeks ago to tell me that he wanted to introduce the House
    version of the constitutional amendment. So I thank you for
    that, Congressman, and I welcome you, and you may proceed.

     STATEMENT OF HON. DAVID DREIER, A REPRESENTATIVE IN CONGRESS
                      FROM THE STATE OF CALIFORNIA

        Representative Dreier. Thank you very much, Mr. Chairman
    and my colleagues in both the House and Senate. I know that
    some will look at this as just one of those typical Feingold-
    Dreier-Conyers-Sensenbrenner initiatives that are a dime a
    dozen. But the fact of the matter is this is a very, very
    important issue, and it is one that I do believe gets to the
    point that has been raised by almost everyone here, and that
    is, we need to be very careful when we amend the Constitution.
        I have a somewhat unique position within my party. I have
    joined John Conyers probably more than I have Jim Sensenbrenner
    on the issue of amending the Constitution. That is, I have
    opposed balanced budget amendments to the Constitution. I have
    opposed the three-fifth requirement for increasing taxes as an
    amendment to the Constitution. I have opposed the flag burning
    amendment to the Constitution. I have opposed defining marriage
    in the Constitution. I have opposed the term limits requirement
    in the Constitution. I have always argued that we should only
    amend the Constitution if we are expanding the rights of the
    American people. And, frankly, the only other ones that I have
    supported are lifting the term limits on the President and
    allowing Jennifer Granholm and Arnold Schwarzenegger the
    opportunity to run for President of the United States, because
    I think there are 12 million Americans right now who we are not
    giving the opportunity to decide whether they could potentially
    serve as President of the United States because they were born
    outside of the United States.
        So I think that that really should be the gauge that we
    would use, and it gets back to, as my friend John Conyers said,
    the Bill of Rights and the vision of James Madison. And that is
    why, again, getting to the point raised by Senator Kaufman, I
    really see what we are doing here as a perfecting amendment.
        To the concern that was raised by my friend Jerry Nadler,
    in my reading of the Constitution, it is my understanding that
    being a millionaire and a celebrity is a prerequisite for
    service in the U.S. Senate. So I really do not see that as a
    major concern. And Russ Feingold and Tom Coburn are great
    examples of that. I have to say that.
        Let me just say, Mr. Chairman, if there was ever a time
    when the American people needed a clear, undiluted voice in
    Washington, it is right now. Working families are facing
    tremendous economic difficulties, and we remain engaged in
    conflicts across the globe. And yet, the residents, as you
    said, Chairman Feingold, of those four States haven't elected
    their newest Senators. Those same Senators are now voting on
    the critical economic issues of our time. Some of my colleagues
    and I, as has been stated, believe that this is, in fact,
    undemocratic. The people of those States, and every State, do
    deserve a voice in their representation. That is why we have
    proposed this constitutional amendment to require all U.S.
    Senators be duly elected by the people they represent.
        We have not proposed this amendment as a reaction to the
    people chosen to fill those seats. As you said, Mr. Chairman,
    we have proposed this amendment because of the people they
    represent. They are understandably outraged at some of the
    gamesmanship that surrounded the most recent Senate
    appointments. We don't need to recount them here, but suffice
    it to say, they have brought back to the forefront of American
    discussion the need for popular elections when deciding our
    representatives in both bodies of Congress.
        Personally, I believe the amendment we are proposing, as I
    said, is a ``perfecting'' amendment to the 17th, and Jim
    Sensenbrenner hit the nail on the head. We are not tampering
    with James Madison's vision. We are tampering with those guys
    who in the early part of the 20th century were battling over
    this thing. After years of back-room deals, this amendment
    reformed the Senate selection process by instituting direct
    elections. However, it left to the States the authority to
    decide what to do when an out-of-cycle vacancy came up. Most
    States chose to allow their Governors to make appointments. A
    few, including yours, Mr. Chairman and Mr. Sensenbrenner, chose
    to leave it to the people, and now Senator Begich's, calling
    for special elections. While our amendment does call for all
    Senators to be elected, it does not dictate the terms of those
    elections, leaving that to the States. I view this proposal as
    the fulfillment of the reform effort that began with the 17th
    Amendment nearly a century ago.
        Now, some argue that special elections are too expensive,
    as has been raised here, and that is what Chairman Conyers
    raised as his concern. This is an argument that I have, in
    fact, heard before and one does have some resonance at a time
    when State budgets are stretched very thin. However, I do not
    believe budget constraints nullify the imperative for electing
    our leaders.
        Now, there are others--and I read that piece from our
    friend George Will in the Post the other day. Some have argued
    that this amendment only weakens the pillars of federalism that
    the Founders carefully constructed. I spoke to Mr. Will about
    this the other day, and in this piece in the Post, he referred
    to the fact that our Constitution created distinct electors for
    the three elected bodies of the Federal Government--as we all
    know, the Electoral College, the State legislatures, and then
    we the body of the people, those of us in the House of
    Representatives. And the President was to be elected, as I
    said, by the Electoral College, the Senate by the legislatures,
    and the House directly by the people.
        With this perspective in mind, the 17th Amendment would
    appear to have undermined the Founders' intentions, and today's
    proposed amendment would undermine them further. I respect Mr.
    Will's point of view. I, too, look to the Founders' original
    intentions and do not support amending the Constitution
    lightly, as I said. But I believe in addressing this matter we
    must look at the history of our electoral processes--not just
    how they were envisaged at our Nation's founding, but how they
    have been conducted in practice.
        From a purely academic perspective, it is interesting to
    consider whether the authors of the 17th Amendment could have
    plotted a reform course that was truer to the Founders'
    intentions. But the reality today is that we now have a nearly
    100-year tradition of directly electing our Senators, nearly
    half the life of our country. This practice has become an
    integral part of American democracy. Trying to undo a century
    of our history simply is not a viable option. The American
    people elect their Senators and would not accept any other
    method. Yet the current system does have this loophole. The
    large number of sudden vacancies in the Senate this year has
    made the consequences of this loophole very, very clear, as you
    said, Mr. Chairman, with 12 percent of the people having their
    newest Senators not having been elected. Today's proposed
    amendment I believe will address this challenge.
        A few years ago, the issue of preserving the direct
    election of our representatives was raised within the context
    of a continuity plan for Congress in the event of a catastrophe
    and the deaths of more than 100 House Members. My colleague Mr.
    Sensenbrenner and I argued vigorously for the direct election
    of all House members, as the Constitution mandates, under any
    circumstance. We were joined by an overwhelmingly bipartisan
    majority in our effort to ensure that we did not tamper with
    the Constitution on that, undermining the opportunity for
    elections to be held. At the time, we argued that holding and
    participating in elections, even in the event of a catastrophe,
    was an absolutely essential part of our democracy to ensure
    that it remains vital and functioning.
        Senate vacancies are no less significant than vacancies in
    the House. Yes, they should be filled as quickly and as fairly
    as possible. But most important, Mr. Chairman, they should be
    filled by the people.
        Thank you very much.
        [The prepared statement of Representative Dreier appears as
    a submission for the record.]
        Chairman Feingold. Thank you, Representative Dreier, for
    your excellent testimony.
        Also joining us this morning is Representative Aaron
    Schock. Congressman Schock represents Illinois' 18th District.
    A graduate of Bradley University, he is a former Illinois State
    Representative. He joined the House in January of this year,
    becoming the youngest Member of the House of Representatives
    and the first born in the 1980's.
        Congratulations, Mr. Schock, and welcome. You may proceed.

     STATEMENT OF HON. AARON SCHOCK, A REPRESENTATIVE IN CONGRESS
                       FROM THE STATE OF ILLINOIS

        Representative Schock. Thank you, Mr. Chairman, thank you,
    Chairman Conyers, and thank you to the members of the
    distinguished panel for inviting me to be here today.
        I have a simple alternative to the amendment that is being
    offered today. I introduced it several weeks ago. It is the
    Ethical and Legal Elections for Congressional Transitions Act,
    or, simply put, the ELECT Act, which would get us to where we
    all want to go much quicker, cleaner, and more efficiently.
    Simply put, it would require that all State voters be given the
    opportunity for a special election within 90 days of a vacancy
    being created for their U.S. Senate seat.
        To determine this time period, we looked around the country
    at vacancies, when congressional vacancies occur, and 90 days
    was the greatest latitude given for States to be able to call
    for a special election. And so we afforded that same
    opportunity for the vacancies in a U.S. Senate seat, allowing
    for the potential marrying of a special elect with statewide
    referendum or local municipal elections to reduce the cost.
        The second issue that has been raised is the cost to these
    States. First, I would like to point out the fact that in my
    home State of Illinois, it was precisely this issue that got us
    into the problem we had when, in fact, an elected official
    tried to place a value on a U.S. Senate seat--in his words,
    ``monetize the position.'' I would submit to you that there is
    no value that can be placed on good government or having the
    will of the people in terms of who they wish to represent them
    here in the United States Senate.
        To that point, our bill allows for cost-sharing, half to be
    borne by the Federal Government, the other half by the State
    government, recognizing that both benefit from a clear and open
    election.
        Second, it would still allow us to work within the confine
    of the 17th Amendment, which means that if some national crisis
    occurs or it is the belief of the Governor at that time that
    the State would be best served to have a representative, he or
    she may make that appointment during that 90-day window of
    time, but that individual would have to stand for election
    before the voters.
        Regardless of whether an appointment is made or not, it is
    very clear and history has shown that those appointments made
    by the Senators, regardless of party or regardless of State,
    are not in tune with the wishes of the voters. In fact, less
    than a third of those U.S. Senators who are appointed by
    gubernatorial appointments win re-election during their first
    time standing before the voters. So, clearly, the will of the
    voters is not being done by the gubernatorial appointments,
    and, thus, action is necessary in either this form or the
    amendment being offered.
        Simply put, we have a shared goal. We believe, all of us, I
    think, that there is a problem and that at the end of the day
    the power should not be vested with the legislatures or with
    the Governors, but ultimately with the voters. There is no one
    better qualified to choose his or her representative than the
    electorate of each State, and the ELECT Act is easier to pass,
    quicker to enact, does not amend our national charter, and
    still allows for immediate vacancies when a national crisis
    occurs.
        So I wish to again thank you for the opportunity to address
    you this morning, and I would be happy to answer any questions
    my colleagues would have. Thank you.
        [The prepared statement of Mr. Schock appears as a
    submission for the record.]
        Chairman Feingold. Thank you, Representative.
        As is our practice, we will not have questions for this
    panel, but I want to thank all of you for your great testimony.
    Thanks for being here. You are excused, and we will bring up
    the next panel.
        Chairman Feingold. All right. Please stand to be sworn. Do
    you swear or affirm that the testimony you are about to give
    before the Committee will be the truth, the whole truth, and
    nothing but the truth, so help you God?
        Mr. Neale. I do.
        Mr. Edgar. I do.
        Mr. Kennedy. I do.
        Mr. Spalding. I do.
        Mr. Segal. I do.
        Mr. Amar. I do.
        Ms. Karlan. I do.
        Chairman Feingold. Thank you. We will begin with our second
    panel now, and our first witness will be Thomas H. Neale,
    Specialist in American National Government at the Congressional
    Research Service. Mr. Neale's work focuses, among other things,
    on U.S. elections and U.S. constitutional history and theory.
    Mr. Neale has been a featured lecturer on U.S. elections at the
    U.S. Embassy in Austria, the State Department's Foreign Press
    Center in Washington, and for the House of Representatives'
    Democracy Assistance Commission. He is a graduate of Georgetown
    University School of Foreign Service.
        Before you begin, Mr. Neale, I want to take this
    opportunity to thank you and all of your colleagues at CRS,
    especially Jennifer Manning and Carla Warner for the work you
    have done over the past several weeks to prepare excellent
    research materials on the history of temporary appointments,
    along with your updated report in filling U.S. Senate
    vacancies. Without objection, all these materials will be
    placed in the record of this hearing.
        Mr. Neale, thank you for being here, and I will ask you and
    all of our witnesses to limit your presentations to 5 minutes.
    Of course, your full statement will be placed in the record.
    You may proceed.

     STATEMENT OF THOMAS H. NEALE, SPECIALIST IN AMERICAN NATIONAL
      GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, D.C.

        Mr. Neale. Thank you, sir. Chairman Conyers, Chairman
    Feingold, my name is Thomas Neale, and I am with the
    Congressional Research Service, the Government and Finance
    Division. I have prepared testimony in the form of my report,
    ``Filling Senate Vacancies: Perspectives and Contemporary
    Developments,'' which is available for inclusion in the record.
        The Presidential election of 2008 resulted, directly and
    indirectly, in the highest number of Senate vacancies within a
    short period in more than 60 years. The election of incumbent
    Senators as President and Vice President, combined with
    subsequent Cabinet appointments, resulted in four Senate
    vacancies, in Colorado, Delaware, Illinois, and New York--all
    States in which the Governor is empowered to appoint a
    temporary replacement.
        Chairman Feingold. Just pull that microphone closer to
    yourself, if you would.
        Mr. Neale. Protracted controversies surrounding the
    replacement process in two of these States have drawn scrutiny
    and criticism of not only these particular instances but of the
    appointment process itself.
        While the process of appointing temporary vacancies is
    under examination currently, the practice itself is as old as
    the Constitution, having been incorporated in the original
    document by the Founders at the Constitutional Convention.
        The practice, as was noted earlier, was revised by the 17th
    Amendment, which became effective in 1913. The amendment's
    primary purpose was to substitute direct popular election of
    Senators for the original provision of election by State
    legislatures, but it also changed the requirements for filling
    Senate vacancies, by specifically directing the State Governors
    to ``issue writs of election to fill such vacancies.'' At the
    same time, it preserved the appointment power by authorizing
    State legislatures to empower the Governor, the executive
    thereof, ``to make temporary appointments until the people fill
    the vacancies by election as the legislature may direct.'' The
    record of congressional deliberations at that time shows that
    the appointments provision was not controversial but, rather,
    the primary conflict centered on a proposal that would have
    eliminated the Article I Section 4 power of Congress to
    override State provisions regarding the ``Times, Places, and
    Manner of holding Elections for Senators.''
        Since the amendment was ratified, the appointment by
    Governors of interim Senators has remained the predominant
    practice in the States, with the appointees serving until a
    special election is held. State provisions differ as to when
    the special election should be scheduled, but appointed
    Senators generally serve well under 2 years, and their terms
    usually expire immediately upon certification of the special
    election results.
        Most State Governors have broad authority to fill Senate
    vacancies, provided the appointee meets constitutional
    requirements for the office, but here again, variations exist
    in State practice. Four States seek to guarantee that a
    departed incumbent will be replaced by one of the same party,
    thus respecting the public's choice in the previous election.
    Also, Arizona requires appointed Senators to be of the same
    political party as the prior incumbent, while Hawaii, Utah, and
    Wyoming require the Governor to choose a temporary Senator from
    a list of three names submitted by the previous incumbent's
    party apparatus. It should be noted that some legal
    commentators have questioned these provisions, suggesting that
    they place additional qualifications beyond the constitutional
    ones of age, citizenship, and State residence at the time of
    election.
        Over the 96 years since the 17th Amendment was ratified,
    184 Senate vacancies have been filled by the appointment of 181
    individuals--and, yes, three individuals have been appointed
    twice to fill Senate vacancies. This process has generated
    relatively few controversies prior to the present. Most of
    these centered on occasions when the incumbent State Governor
    resigned after a Senate vacancy occurred and was appointed to
    fill the vacancy by his successor. In almost all such
    instances, the Governor-turned-appointed-Senator was defeated
    in the subsequent special election.
         At present, three States--Massachusetts, Oregon, and
    Wisconsin--do not permit any gubernatorial appointments,
    requiring special elections to fill Senate vacancies. A fourth,
    Oklahoma, allows the Governor to appoint only the winner of a
    special election, and then only to fill out the expiring term,
    after the election. A fifth State, Alaska, has passed both
    legislation and a referendum providing for special elections,
    but the statute retained the Governor's power to appoint in the
    interim, while the referendum eliminated it entirely. Given the
    conflict, the official reviser's notes cast doubt on the
    Governor's appointment authority in future instances.
        As the controversy surrounding gubernatorial appointments
    has grown since the 2008 election, legislation that would
    curtail or eliminate the Governor's appointment power has been
    introduced in the current sessions of no fewer than eight State
    legislatures, including Colorado, Connecticut, Illinois, Iowa,
    Maryland, Minnesota, New York, and Vermont.
        A number of factors may suggest themselves to Congress as
    the Committees consider Senate Joint Resolution 7 and House
    Joint Resolution 21. These may include, but will almost
    certainly not be limited to, arguments in favor of a more
    democratic means of filling vacancies compared with those of
    preserving a traditional State option; questions of the costs
    associated with special Senate elections, which would be borne
    by State and local governments; and, in the post-9/11 era, the
    comparative advisability of appointments as opposed to special
    elections in the event of an attack resulting in the death or
    incapacity of a large number of Senators.
        I thank the chairmen and members of these committees for
    their attention, and I would be happy to respond to your
    questions.
        [The prepared statement of Mr. Neale appears as a
    submission for the record.]
        Chairman Feingold. Thank you so much, Mr. Neale.
        Our next witness is Bob Edgar, the President and CEO of the
    nonpartisan, nonprofit citizens lobby, Common Cause. Mr. Edgar
    served six terms in the House representing the 7th
    Congressional District of Pennsylvania until 1986. More
    recently, he served as General Secretary of the National
    Council of the Churches of Christ in the USA before joining
    Common Cause in 2007. He holds a Master of Divinity degree from
    the Theological School of Drew University and is the recipient
    of five honorary doctoral degrees.
        Mr. Edgar, we very much appreciate your presence here
    today, and you may proceed.

    STATEMENT OF BOB EDGAR, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
                     COMMON CAUSE, WASHINGTON, D.C.

        Mr. Edgar. Thank you, Mr. Chairman. I have five honorary
    doctorate degrees but only four arrests for civil disobedience,
    so I am looking for one other opportunity.
        Mr. Chairman, it is a pleasure to be here today, and I was
    particularly moved by two of the congressional speakers who
    spoke on the first panel.
        First, Congressman Dreier and I have a lot of things in
    common. I was President of the Claremont School of Theology
    across the street from the school he graduated in, and for 10
    years, he was my Congressman. And we differed on almost every
    issue you could imagine, and we agree on this issue, so I would
    like to associate myself with his remarks.
        Also, you had the youngest Congressman here, and when I got
    elected by accident in 1974, there were six Congressmen younger
    than I was, and I was 31 at the time. So we have a tradition of
    people in certain times in history stepping forward and running
    for public office and being able at a variety of ages to make a
    real contribution. And I appreciated his comments.
        Dr. Martin Luther King said, ``We will have to repent in
    this generation not merely for the hateful words and actions of
    bad people, but for the appalling silence of good people.'' I
    am reminded often that we have to stand up and speak out when
    things seem to be broken, and I think the systems of selection
    of Senators in a few States have been proven to be broken over
    the past couple months. And I sit here before you strongly
    supporting S.J. Resolution 7 and House Joint Resolution 21
    proposing the constitutional amendment. We urge Congress to
    pass this proposed constitutional amendment and send it to the
    States for ratification.
        I am currently President of Common Cause, founded by John
    Gardner some 39 years ago as the people's lobby. We have about
    400,000 members and growing, and we are growing with
    Republicans, Independents, and Democrats who want Government to
    work. And they anticipate that their elected officials in both
    the House and the Senate would be elected by the people and
    serve in that office as public servants.
        I think too often over the period of the last few years we
    have seen elected officials who often are controlled more by
    special interests than by the public's interests. And I believe
    that we need to reform a number of measures across the board to
    get our election process straight, to get money moderated in
    its influence in Congress, and to elect public officials who
    serve that broader public interest.
        We believe the Constitution should be amended rarely and
    with great care, but election of representatives in Congress is
    one of those issues that crosses that threshold.
        We all know this issue has arisen because of the
    unfortunate experiences in recent months as four Senate seats
    became vacant subsequent to President Obama's election. As an
    article in the December 10, 2008, New York Times noted, ``Given
    the prestige of the and of the Senate seat and the magnetic
    allure of politicians, it is perhaps not surprising that when
    these vacancies come up, the process of awarding the office has
    become fraught with malfeasance and political peril.''
        In many State governments and too often in Congress itself,
    there is a prevalent attitude that you must pay to play. Common
    Cause strongly supports this action and strongly works to try
    to get money's influence out of the political process.
        Democracy is at its best when it is open and transparent.
    We believe that setting a special election within 3 or 4 months
    is reasonable, and we do not believe that State or Federal
    Government will suffer unduly from the lack of a Senator for a
    period of time.
        Let me just close by answering one of Mr. Nadler's
    questions about the cost. Previous speakers have talked about
    the fact that there could be shared costs, but I would urge
    both House and Senate Members to take a look at an effort to
    revisit the issue of public financing of campaigns. Shortly, we
    will see on the Senate and House a reintroduction of a public
    financing measure, and it has been renovated over the past year
    given the experiences in Connecticut, Arizona, and Maine, and
    given the Obama Presidential campaign with its ability to raise
    some small contributions. I hope both the House and Senate will
    take a look at that. I think there are provisions of public
    financing that could, in fact, be in place and provide an
    answer to the question of how do we pay for these elections.
        I close by simply urging both the House and Senate to pass
    this constitutional amendment. Let us get on with the process
    of having government for the people and by the people.
        Thank you.
        [The prepared statement of Mr. Edgar appears as a
    submission for the record.]
        Chairman Feingold. Thank you, Mr. Edgar. I appreciate your
    comments on public financing as well.
        Our next witness is Kevin J. Kennedy, Director and General
    Counsel for the Wisconsin Government Accountability Board and
    former Executive Director and Legal Counsel for the Wisconsin
    State Elections Board. He is a former President of the National
    Association of State Election Directors. A graduate of the
    University of Wisconsin Law School, Mr. Kennedy worked in
    private practice and served as assistant district attorney in
    Wisconsin before joining the Elections Board in 1979. He has
    also served as co-chair of the National Task Force on Election
    Reform. Mr. Kennedy and I have known each other for longer than
    either of us may care to remember, and he did preside over an
    election in 1982 where a 29-year-old kid was trying to run for
    the State Senate and ended up winning by 31 votes out of
    47,000. That would be me. He was in charge of our elections in
    Wisconsin at that time as well.
        So it is good to see you again, Kevin. Thank you for being
    here today. Please proceed.

     STATEMENT OF KEVIN J. KENNEDY, DIRECTOR AND GENERAL COUNSEL,
     WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD, MADISON, WISCONSIN

        Mr. Kennedy. Thank you, Chairman Feingold, Chairman
    Conyers--I believe I was a kid back then, too; I appreciate
    that--Representative Sensenbrenner. I also want to just
    acknowledge the fact that it is great to be here in front of
    two of Wisconsin's dedicated public servants. You make
    Wisconsin look well in your service in Congress, and the
    citizens back home and your public officials appreciate that.
    Chairman Conyers, I had the honor of testifying once before in
    the House, and I can appreciate the more comfortable atmosphere
    that is there at times.
        I want to thank you for the opportunity to provide
    information to the Subcommittees on Wisconsin's procedures for
    conducting special elections to fill vacancies in the office of
    United States Senator. It is a special honor to be here.
    Wisconsin has a long history of relying on special elections to
    fill vacancies in the office of United States Senator dating
    back to the ratification of the 17th Amendment to the
    Constitution.
        While it has been 40 years since our last special election
    to fill a vacancy in the office of the U.S. Senate, in that 40
    years since that time, we have actually filled four House
    vacancies. And in those cases, we always managed, with the
    flexibility in Wisconsin's statute, to coordinate those
    elections with regularly scheduled elections, thereby saving
    significant costs in the administration of the election
    process.
        Let me just briefly describe how the special election works
    in Wisconsin. There is a vacancy, either by death, resignation,
    or some other cause. The Governor issues an order calling the
    election. There is no real deadline for the Governor to issue
    that call. There will be practical considerations. There will
    also be some political considerations in that order. Generally,
    our staff will work with the Governor's staff to work through
    timing considerations and to deal with the flexibility that our
    law provides in terms of cost savings.
        Once the Governor issues that order, that date is set
    between 9 and 11 weeks from the time of the order that we are
    going to have that special election. That date determines our
    primary election, which is 4 weeks before the special, if it is
    required. The deadline for getting nomination papers submitted
    to our office is 4 weeks before the date of the primary. That
    leaves a very short period for circulating nomination papers,
    but it has worked well for a large number of special elections.
    We use the same procedure for vacancies in our State
    legislature as well.
        Thirteen days after the special election, the counties have
    to have their official canvass results to us. They often have
    it there sooner. Within 5 days, we have to certify those
    results and prepare the Certification of Election for the
    Governor's signature. So things move very quickly in Wisconsin.
        There are some special timing considerations that come up
    in even-numbered years with our regularly scheduled election in
    the fall. In those periods of time, again, the Governor has
    some more constraints, but we, again, look to try and schedule
    an election at the same time as the regular election if a
    vacancy occurs.
        Costs have been an issue that has been identified, and I
    think it is important for the Committee to understand what the
    elements are when we talk about costs. I provided you with a
    line-item listing that suggests a stand-alone special election
    in Wisconsin would cost close to $3 million, and this is an
    investment that we make in democracy in Wisconsin. But, again,
    we have a certain level of flexibility.
        One of the things that is not included in that is the
    regular staffing that goes into running our office, running our
    county offices, and in Wisconsin, we run our elections at the
    municipal level. So our municipal clerks are the ones who are
    out there handling the absentee ballots, the voter
    registration, equipping the polling places, recruiting and
    training the poll workers.
        If we hold a special election at the same time as the
    regularly scheduled election, most of those costs are shifted
    from direct costs to just incremental changes. Only the Notice
    of Election is really the stand-alone cost. The other costs
    that I have identified, that is the cost of running an election
    just about any State you look at--cost for publishing notices.
    Wisconsin is a paper ballot-based State, so if we ran an
    election, we would expect to print 2.5 million ballots for a
    special election for the U.S. Senate. That cost would be there
    in conjunction with other costs.
        We now have--one of the things we did not have in 1957--the
    costs of programming electronic voting equipment so that people
    with disabilities can participate in the electoral process.
    Again, Wisconsin uses optical scan voting, so we program that
    equipment.
        Absentee postage, a cost borne by municipalities, is a big
    factor. The biggest single cost factor is what we pay our poll
    workers. Popular belief is that they work for free. Given the
    commitment that they bring, maybe they do. But we do recognize
    them with a small amount of money for that.
        Incidental costs are the supplies for poll lists, various
    forms that have to be filled out.
        Those are costs that I think Wisconsin has committed itself
    to. We have had a long history of special elections not only
    with our U.S. Senate vacancies that Congressman Sensenbrenner
    identified, but also our four House vacancies. We have had a
    number of vacancies in the legislature sometimes as legislators
    have moved on to higher office.
        Elections are the cornerstone of our democracy. Wisconsin
    has committed to filling vacancies since 1913. This enables
    Wisconsin voters to actively participate in determining their
    Federal representative in the United States Senate rather than
    delegating the selection to the Governor, even for a short
    period of time. It comes at a price, but the conduct of fair,
    transparent elections provides the foundation for public
    confidence in their elected representatives.
        Thank you for allowing me to share my thoughts with you. I
    would be happy to answer questions later.
        [The prepared statement of Mr. Kennedy appears as a
    submission for the record.]
        Chairman Feingold. Thank you, Kevin.
        Our next witness will be Dr. Matthew Spalding, the Director
    of the B. Kenneth Simon Center for American Studies at the
    Heritage Foundation. Dr. Spalding has a Ph.D. in Government
    from Claremont Graduate School where his work concentrated in
    government, political philosophy, and early American political
    thought. He has written and edited books on political history
    and the Constitution.
        We welcome you, Dr. Spalding. The floor is yours.

      STATEMENT OF MATTHEW SPALDING, PH.D., DIRECTOR, B. KENNETH
      SIMON CENTER FOR AMERICAN STUDIES, THE HERITAGE FOUNDATION,
                            WASHINGTON, D.C.

        Mr. Spalding. Thank you, Chairman Feingold and Chairman
    Conyers, and everyone on the Subcommittees, thank you for
    taking constitutional questions seriously.
        I would actually like to make three arguments against the
    proposed amendment this morning, and I will right to those.
        The first is based on the nature of the United States
    Senate and its unique role representing States in our
    constitutional structure. Based on equal representation in all
    the States, as guaranteed in Article V, the Senate--with its
    longer terms of office and larger and distinct State
    constituency--was to be more stable, deliberative, and oriented
    toward long-term State and national concerns. The 17th
    Amendment did not change that. It is because of the nature of
    the Senate that the chamber is given its unique
    responsibilities having to do with, among other things,
    executive appointments and treaties with other countries.
    Therefore, it is in the interest of individual States--and,
    given the responsibilities of the Senate, in the interest of
    the Nation--that ongoing representation in the Senate be
    maintained.
        Without the possibility of temporary appointments, the
    Senate could be prevented by vacancies from being able to
    conduct its business in a timely fashion, subject to
    fluctuating numbers and representation. The proposed amendment
    leaves States unrepresented--or at least underrepresented--
    potentially at times of great significance to that State, as
    well as--considering the Senate's role in confirmations,
    treaty-making, and the like--the Nation. Several vacancies of
    several months, at a time of crisis, could well have a
    detrimental effect on the well-being of those States--consider
    the economic legislation of late--but also to our national
    security.
        Second, the proposed amendment is unnecessary. Over the
    course of the 40 years between 1866 and 1906, there were nine
    cases of bribery concerning the appointment of United States
    Senators. Over the course of the 95 years between the passage
    of the 17th Amendment and today--during which there have been
    184 appointments to fill Senate vacancies--there has been only
    one case of a Governor trying to sell a Senate seat. As
    appalling as this case clearly appears to be, this is neither a
    pattern of corruption nor a crisis of constitutional
    proportions. Appointment per se is not corruption.
        Third, the proposed amendment undermines rather than
    supports core political principles. Temporary gubernatorial
    appointment in this case is a perfectly reasonable and
    necessary option for the Senate to work in the context of our
    democratic system. The current arrangement does not take away
    or jeopardizes fundamental voting rights anymore than the
    proposed amendment takes away voting rights of the people and
    the Senate.
        While the proposed amendment seems to advance the principle
    of democracy, it would do so at the expense of other
    principles, like federalism, self-government, and democratic
    constitutionalism. The amount of time considered necessary for
    statewide special elections, as we have heard, differs from
    State to State, depending on the size, demographics, and other
    aspects of individual States. As a result, there is great
    variance in current State laws. I see no reason for a uniform
    rule.
        The question here is not one of democracy versus other
    principles. It is a question of weighing the risk associated
    with the possibility of a bad appointment, on the one hand, and
    accepting that the people of a State are not being fully
    represented in the Senate for a period of time, on the other.
    Different States have different opinions. This is as it should
    be.
        In my written testimony, I consider the importance of
    constitutional amendments and the historical pattern of
    previous amendments. The proposed amendment, in my opinion,
    does not rise to that level of serious consideration. This is
    not a ``great and extraordinary occasion,'' as it says in the
    Federalist Papers. Nor is there an underlying consensus either
    about a problem or about a solution to justify pursuing a
    constitutional amendment at this time.
        Let me add here that while we are moving temporary
    gubernatorial appointments and cases of vacancy by legislation,
    it is likewise my opinion of that idea it is also clearly
    unconstitutional. The appropriate place for such legislation is
    in State legislatures, not Congress.
        The best mechanism for balancing democratic principles and
    representation, and for weighing the risk of a bad appointment
    against the temporary loss of representation in the case of
    vacancies in the U.S. Senate, is already in place. It is in the
    second clause of the 17th Amendment. That clause actually goes
    back to a discussion in the Constitutional Convention, and it
    was decided at the time it was a necessity, given the nature of
    the institution. As such, Congress, in my opinion, should not
    proceed to amend the Constitution in this manner.
        I thank you for your time this morning and look forward to
    taking your questions.
        [The prepared statement of Mr. Spalding appears as a
    submission for the record.]
        Chairman Feingold. Thank you, Dr. Spalding.
        The next witness is David Segal, an analyst for the
    advocacy group FairVote, who is serving his second term as a
    member of the Rhode Island House of Representatives. A graduate
    of Columbia University, he served as Minority Leader of the
    Providence City Council from 2003 to 2007 and remains the first
    and only Green Party member to be elected in Rhode Island.
        Mr. Segal, welcome and thank you for joining us.

    STATEMENT OF DAVID SEGAL, ANALYST, FAIRVOTE, RHODE ISLAND STATE
                REPRESENTATIVE, PROVIDENCE, RHODE ISLAND

        Mr. Segal. Thank you, Mr. Chairman. FairVote and I are, of
    course, honored to be here before you today to testify in
    strong support of the proposal that is before you.
        I would like to quickly stress that I speak today on
    FairVote's behalf rather than for my constituents or for the
    Rhode Island Legislature at large.
        FairVote is active at the local level in several States and
    has a broad network of State-level partner organizations and
    allies. We have followed State legislative attempts to end
    senatorial vacancy appointments--some efforts new, others
    longer-standing--and will focus our testimony on rebutting the
    notion that the vacancy appointment issue, and any problems
    arising therefrom, are better resolved via State legislation
    than via constitutional amendment. State legislation is
    important and, for the moment, necessary, but it is far from
    sufficient. Such legislation seems unlikely to yield broad-
    based Senate vacancy reform, which is why we so strongly
    support the constitutional amendment track.
        It has been suggested that passage of the proposal before
    you would be an affront to pluralism or federalism, and
    FairVote contends that it is not pluralism or federalism as
    such that would make it difficult for States to reform Senate
    vacancy laws; rather, the major obstacle is the natural
    tendency of powerful, self-interested actors to strive to
    maintain their authority. We believe that the proposal before
    your Committee respects federalism, insofar as it provides
    States with wide latitude in determining how best to implement
    vacancy elections. And we also note that States, per those
    mechanisms set forth by our Nation's Founders, will play a
    critical role in the ratification of any constitutional
    amendment relative to this matter. Amendment of the
    Constitution is not an affront to federalism. It is an exercise
    therein.
        FairVote has identified nine States in which legislation
    requiring U.S. Senate vacancies be filled by special election
    has been introduced this year, and we believe this to be a
    nearly exhaustive account of such States at this time, though
    additional legislation may be introduced in coming weeks and
    months.
        It is worth noting our initial surprise at the relative
    lack of formal consideration of this issue by State
    legislatures, despite the prominence in the national discourse
    of Senate vacancies, and what appears to be broad popular
    support, editorial support from prominent newspapers, and
    support by many Government reform groups like FairVote and
    Common Cause. Even at this relatively early moment in most
    legislative sessions, it is evident that few of the
    aforementioned bills stand a chance of passage this year, and
    we attribute this state of affairs largely to the
    euphemistically awkward, frequently tense, intra- and inter-
    party political dynamics endemic to most State governments. The
    predicament in Illinois is the most loaded and remains fluid
    and unpredictable, but let us consider the various other
    scenarios.
        First, States in which the legislature is dominated by the
    same party as the Governor--especially those with political
    dynamics that are relatively stable--are unlikely to perceive
    an urgency to act on the Senate vacancy issue without all
    States moving forward in concert. The party that rules the
    legislature is hesitant to strip authority from a Governor of
    the same party, and individual members might fear being
    ostracized or other political retribution for participating in
    such efforts.
        Consider Colorado, where Democrats control the legislature
    and the Governor's seat, special election legislation was
    introduced by Republican State Senator Michael Kopp, and the
    legislation died in committee on a 3-2 party-line vote, with
    Democrats openly acknowledging that passage of the legislation
    was politically unpalatable because it would appear to be a
    demonstration of disapproval of Governor Ritter's recent
    appointment of Senator Bennet.
        In Maryland, a Democratic Delegate introduced legislation
    to require special elections, but only beginning after 2015,
    when Democratic Governor Martin O'Malley will certainly have
    vacated his office. And this has reduced any sense of urgency
    to pass the legislation, and it appears unlikely to move
    forward this session.
        In New York, Republicans have lined up behind legislation
    to require special elections. Democrats control both houses of
    the Assembly, and passage of the legislation would no doubt be
    seen as a referendum on Governor David Paterson's appointment
    of now-Senator Kirsten Gillibrand.
        Second, in the remaining States in which power is shared by
    Democrats and Republicans, the parties typically have competing
    interests that tend to complicate the case for holding vacancy
    elections. Legislative chambers might be controlled by
    different parties, or a single party might control both
    chambers, but not have enough votes to override a likely
    gubernatorial veto.
        This is true in Vermont, where the Vermont House and Senate
    are controlled by Democrats, but Governor Jim Douglas has said
    that he thinks the status quo of allowing appointments under
    certain circumstances ``is a pretty good system'' and sees no
    reason to change it.
        Connecticut Democrats control both chambers, but the
    Republican Governor's office called the move to end
    appointments a ``political maneuver'' and a ``political ploy.''
        In Mississippi, legislation to end appointments has died
    already in the Democratic-controlled State legislature, despite
    controversy there over Governor Barbour's appointment to
    replace Trent Lott a couple of years ago.
        And in Minnesota, legislation has been introduced to
    require specials to fill future vacancies, but in the midst of
    a contentious multi-party scrum and expensive recount, it
    appears that this legislation will not advance.
        Such dynamics appear to confirm the hypothesis that a
    constitutional amendment is more likely to achieve widespread
    adoption of this reform than would individualized, State-by-
    State bills. And one State, my State, serves as the proverbial
    ``exception that proves the rule.'' For reasons that are
    intuitive, it appears that the greatest likelihood of passage
    is in States where the Governor is of one party but the
    legislature is overwhelmingly of the other party, and Rhode
    Island's House voted yesterday to strip the Governor of his
    appointment power on a 65-6 vote.
        So we would urge that Congress formally propose this
    amendment to the States and hopefully catalyze a national
    effort on its behalf.
        Thank you.
        [The prepared statement of Mr. Segal appears as a
    submission for the record.]
        Chairman Feingold. Thank you very much, Mr. Segal.
        Our next witness is Professor Vikram Amar from the
    University of California School of Law, where he serves as
    Associate Dean. A graduate of Yale Law School, Dean Amar
    clerked for Judge William Norris on the Ninth Circuit Court of
    Appeals and for Justice Harry Blackmun on the United States
    Supreme Court. Today, Dean Amar writes, teaches, and consults
    in the field of constitutional law. He also authors a biweekly
    column on constitutional matters for Findlaw.com, a website
    devoted to legal issues.
        Dean, welcome and thank you for making the trip to be with
    us, and you may proceed.

       STATEMENT OF VIKRAM D. AMAR, ASSOCIATE DEAN FOR ACADEMIC
     AFFAIRS AND PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA, DAVIS
                    SCHOOL OF LAW, DAVIS, CALIFORNIA

        Mr. Amar. Thank you all so much for having me.
        I would like to offer a few thoughts and suggestions, but
    before I do, let me make it clear that I completely agree with
    the premise behind the proposed amendment, namely, that popular
    election is the best way to pick U.S. Senators. Of the three
    devices that we have experience with--legislative selection,
    popular election, and gubernatorial appointment--there is no
    doubt that popular election is the best mode.
        But the problem, of course, is that elections take time.
    And as Mr. Nadler pointed out, you need a fair amount of time
    for the election to be fair and open to candidates. Related to
    that is a very important factor we have not talked about, and
    that is voter turnout. If an election is not organized well
    enough to facilitate turnout, it loses a lot of its normative
    force.
        You know, I have read the literature, and it seems like 3
    months is about the minimum amount of time under ordinary
    circumstances you could expect an election to take place, which
    brings us to the crux, and that is, whether 3 months is too
    long to tolerate vacancies and a State's underrepresentation
    that the Constitution so painstakingly tries to avoid. And
    whether 3 months is a long time or not depends on how you look
    at things.
        Reflect back on how much important work you all have done
    in the last 6 weeks, which is half of 3 months, and you realize
    how close some of those votes were, how the margins are tight
    in these times. And super-majority rules like filibusters may
    exaggerate the tightness of those margins. Then 3 months may be
    a fair amount of time.
        I know my good friend Pam Karlan in her written remarks
    points out that even though States that lack one Senator have a
    second Senator to represent them, but, you know, if California
    had had only one voice, one vote in some of the big votes in
    the last 6 weeks, I as a Californian would have felt very
    disenfranchised by that if there had not been a full Senate
    contingent.
        That is why all but a handful of States--and I recognize
    that they are represented here today--a handful of States have
    decided to allow their Governors to make temporary
    appointments. Note that the current Constitution does not
    require States to do that. It simply authorizes them, and
    almost all of them have done so, and I think that there is some
    wisdom to be gleaned from State common practice.
        Of course, as we have heard, delay in filling vacancies is
    exponentially more problematic if we are talking about mass
    vacancies in, say, the setting of a terrorist attack or some
    other crisis. In a post-9/11 world, we simply cannot ignore the
    possibility of large numbers of vacancies, so that brings me to
    the first big prescriptive point I want to make, and that is,
    if you proceed with a constitutional amendment, at a minimum
    include a fallback provision that would allow temporary
    gubernatorial appointment when some trigger, say 20 vacancies
    in the Senate, is hit. And if you are worried about those
    people gaining incumbency advantage at the next election, you
    can make them constitutionally ineligible to run. You could
    build that into the constitutional amendment yourself if you
    wanted to. And I would actually recommend that you carry that
    idea over to the House. Since you are cleaning up that
    altogether, you might want to provide a similar emergency
    trigger for the House of Representatives in addition the act
    that has already been passed that requires elections to take
    place within a prompt time.
        My second big point builds on Representative Schock's
    interesting statute, which I think is a very promising avenue,
    and that is, you can accomplish much of what you want to do
    here today by congressional statute. You could pass a statute
    that requires an election to be held to fill a vacancy within
    90 days. That would not foreclose gubernatorial appointments in
    that interim, but it would make them less likely to be used,
    because they will only last 90 days, and it would prevent
    anyone from serving more than that 90-day window.
        Because you would not be absolutely foreclosing
    gubernatorial appointments but, rather, regulating the time of
    a legislative election, that falls squarely within your Article
    I, Section 4 powers to prescribe times and manners of Senate
    elections. And as Mr. Neale pointed out, in the legislative
    history surrounding the 17th Amendment, there was a big effort
    to free States from congressional control under Article I,
    Section 4, and that was defeated, affirming that Congress
    retains that power. And, indeed, Congress does set the time for
    regular Senate elections. There is no difference in the text of
    the 17th Amendment between regular Senate popular elections and
    special vacancy-filling popular elections. Both are subject to
    congressional oversight.
        The one thing you could not accomplish by statute--and I
    will close with this point--is that you could not make the
    gubernatorial appointee ineligible to run 90 days hence because
    that would move beyond setting the time of an election to
    prescribing the qualifications to be in the Senate, and I think
    that falls outside your Article I power--so if you are really
    worried about that incumbency advantage, then the
    constitutional amendment is the only way to go. But if that is
    not really driving too much of it, then I think a statute which
    is flexible has the advantage.
        And let me say one other point. I do not disfavor
    constitutional amendment versus statute because I revere the
    Founders, although I do in some ways. I agree with Mr. Conyers
    that a lot of the best parts of the Constitution came via
    amendment. But I think statutes are flexible and could be
    amended and tweaked in light of experience going forward, and
    for that reason, I would urge incrementalism if it satisfies
    most of your concerns.
        Thank you very much
        [The prepared statement of Mr. Amar appears as a submission
    for the record.]
        Chairman Feingold. Thank you so much, Dean.
        Our final witness is Pamela Karlan, the Kenneth and Harle
    Montgomery Professor of Public Interest Law at Stanford Law
    School, and co-Director of the school's Supreme Court
    Litigation Clinic. A graduate of Yale Law School, Professor
    Karlan clerked for Judge Abraham Sofaer of the United States
    District Court for the Southern District of New York and for
    Justice Harry Blackmun of the United States Supreme Court.
    After her clerkship, she worked as assistant counsel at the
    NAACP Legal Defense and Educational Fund and later as a
    commissioner of the California Fair Political Practices
    Commission before beginning her work at Stanford in 1998.
        Professor Karlan, thank you for being here today, and you
    may proceed.

      STATEMENT OF PAMELA S. KARLAN, KENNETH AND HARLE MONTGOMERY
        PROFESSOR OF PUBLIC INTEREST LAW, STANFORD LAW SCHOOL,
      STANFORD, CALIFORNIA, AND CO-DIRECTOR, STANFORD LAW SCHOOL
                    SUPREME COURT LITIGATION CLINIC

        Ms. Karlan. Thank you, Mr. Chairman. It is an honor to be
    here.
        In 1913, the 17th Amendment made a decisive change to the
    original constitutional structure, and I recognize that some
    people differ on the wisdom of that change, but now the
    Senators are selected by the people. They do not represent the
    States as States. They represent the people of the States.
        The 17th Amendment did not fully realize that principle
    because of the method of allowing Governors to continue filling
    vacancies. And I think at the level of principle we all agree
    that vacancies should be filled by the same method that is used
    to select Senators in the first place, because the people's
    right to representation is not limited to participating in a
    biennial election, but it is a continuing right that should not
    be defeated by the death or the resignation of their Senator.
    And experience over the years shows us that gubernatorial
    appointment has in some sense reprised some of the same flaws
    that led to the 17th Amendment in the first place.
        First, one of the central criticisms of gubernatorial
    appointment and of legislative appointment was the corruption
    process, and we have seen that both in overt corruption, but
    also in other forms of corruption--appointing your relatives to
    a seat, or appointing a friend, or my favorite case, the 24-
    hour appointment of an 87-year old woman in Georgia so that she
    could be the first female Senator. I think those things are
    problematic.
        The second thing, though, is I think that the gubernatorial
    appointments can distort the representational process in
    important ways, because the Governor may be appointing someone
    who absolutely could not have been elected by the constituents
    that that Senator is ostensibly serving. And we know this in
    part from the fact that so many of the people who are appointed
    and then run for election from the positions do not get
    elected.
        Now, that undermines, I think, the legitimacy of what they
    do while they are in office, because they are not representing
    the people of the States. They are representing themselves. And
    a Senator who has never faced and perhaps has no intention ever
    of facing the voters is, I think, an illegitimate Senator.
        Third, gubernatorial appointments can create long-term
    distortions by changing the dynamic of the next election. They
    can make it impossible for a candidate of the party that has
    nominated the temporary Senator to run because that then
    divides the party in a primary election. They can change the
    fundraising dynamic and the like. And that I think is also
    problematic. So that all of the arguments against filling
    senatorial vacancies solely by election stem, I think, just
    from practicality and not from principle.
        From an argument that there is a period of time in which it
    is a problem for a State to be represented by only one Senator,
    let me make a couple of observations here.
        The first is that that happens all the time now. Senators
    are vacant during critical votes due to illness or due to
    family emergencies or due to some other personal or
    professional business. And no one says that the Senate has
    become illegitimate because 100 members are not on the floor
    voting.
        Second, it is often the case that much of a Senator's work
    is done through casework for constituents and the like, and
    here there is a distinction between the Senate and the House,
    which is, if a House member resigns or a House vacancy occurs,
    the people in that district are not represented at all in the
    House until the next election. And we have not seen that to be
    a constitutional problem. Whereas, in the Senate the likelihood
    of there being two vacancies from a single State simultaneously
    is so low as to be almost non-existent. And so people are still
    represented in the Senate.
        So it seems worthwhile to me to distinguish between what we
    might think of as conventional Senate vacancies, where that
    short period of time is not a problem, and what we might call
    the catastrophic, where you have widespread vacancies in the
    Senate because of a terrorist attack or the like.
        And, of course, I urge you all to be thinking seriously
    about continuity in Government, but I do not think that issue
    should be the enemy of the good. And the enemy of the good is
    we have had 180 people appointed to serve in the Senate since
    1913, which is basically almost two full turnovers of Senators.
    And I think we should think seriously about how to deal with
    the legitimacy of the process by which we fill those seats.
        I will say one last thing about the ELECT bill, which is it
    has one, I think, very salutary suggestion in it, and I make
    some remarks in this direction in my prepared testimony as
    well, which is that using your power under Article I, Section
    4, Congress might think about ways to help the States defray
    the cost of special elections so that they can do that swiftly.
    But I do not think that temporary appointments, whether for 3
    months, 6 months, or in some cases, for up to 2\1/2\ years, is
    the right way to fill seats in a body that since the 17th
    Amendment has been elected by the people.
        Thank you very much.
        [The prepared statement of Ms. Karlan appears as a
    submission for the record.]
        Chairman Feingold. Thank you so much, Professor Karlan.
    Thanks to all of you for your presentations.
        We will start with questions, and I understand that our
    friends from the House have a series of votes coming up, so
    what I would like to so--and Senator Coburn has said this is
    all right with him--is to recognize as many House members for
    5-minute rounds of questions as I can before they have to
    leave.
        So let me turn things over now to Mr. Nadler.
        Representative Nadler. I thank the Chairman.
        Let me start by saying that, in principle, the idea of
    elections is certainly a good one. The recent round of
    selections, appointments, has not been the most edifying
    exercise in Government, shall we say. But I do have one
    serious, practical problem, and it was not really addressed.
    Bob Edgar did a little. And, that is, especially in a State
    like New York or California, where you are talking $20, $30,
    $40 million to run for a Senate seat, it is one thing to raise
    that over a period of a couple years; it is another thing to
    raise it in 90 days or 180 days. And unless we are to amend
    this amendment to provide for mandatory public financing and no
    private financing at all, which I would support, how do you get
    around the problem that if you call a special election--and it
    is not analogous to the House because House seats are much
    smaller, but in a large--and maybe not in Alaska, but in large
    States, how do you get around the problem if you call a special
    election with 90 days' notice, 180 days' notice, in effect you
    are telling everybody who does not have $30 million in the bank
    or is not a celebrity or a basketball player or whatever, or
    even a statewide official, you cannot run?
        Mr. Edgar. Mr. Nadler, I would like to respond to that. The
    public airways that we spend so much money on with television
    commercials to get Senators elected are public airways. And I
    think you could address that in a number of ways by making
    those public airways free for those candidates that qualify
    after going through the process system. But you could also try
    to recognize the fact that by raising all of that money,
    special interests often control the outcome of those elections.
        So I think it is not so bad that a Senate race in New York,
    for example, would cost less in that 90-day period because the
    candidates could not raise the amount of money necessary, but--
    --
        Representative Nadler. But that would simply mean that it
    would be limited to candidates who already had the money.
        Mr. Edgar. Not necessarily, if the public demanded that the
    airways be open, that advertisements be less costly, those
    candidates--when I first ran for my seat in the most Republican
    district in the Nation to have a Democratic Congressman, I only
    raised $35,000 and my opponent raised more than a quarter of a
    million dollars, and there was an awful lot of grassroots
    effort. And I think in a starting effort of a Senate race, the
    public should be interested, their interest should be
    heightened. They should get to know the candidates. And if the
    public airways were open and not as expensive as they are in a
    traditional Senate race, I think that would be helpful.
        I would also argue that in traditional Senate races we have
    got to lower the cost and----
        Representative Nadler. I certainly agree on that. My only
    concern--I mean, I support public financing, clean elections
    and so forth. I think it is essential. I have said that the
    campaign financing system is a metastasized cancer in American
    democracy.
        Mr. Edgar. We agree.
        Representative Nadler. I know we do. My concern is that the
    quick special elections and statewide elections without
    mandating some form of public financing or free airways or
    whatever would simply make the problem worse. Anybody want to
    comment on that?
        Ms. Karlan. You raise, of course, a huge problem with the
    American electoral system altogether, and this may be one
    reason why we want to leave to individual States the decision
    about whether to hold an election within 90 days or to
    recognize that democracy takes time. And so maybe there are
    States in which the State will choose rather to have a vacancy
    for 5 months or 6 months, or even a year. I think the real
    question is whether slotting somebody into a seat while you go
    through that process--and in New York, as you know, there is
    going to be a special election, that is, Senator Gillibrand is
    not serving the entire unexpired term of Senator Clinton.
        So that is going to be there in any event, and I think, you
    know, this is one of these questions where, to use your
    metaphor, if you have a cancer in the election system, that
    does not mean you do not keep the electoral patient's teeth
    clean in the meantime. And I think that is part of why you do
    not want to have people slotted into that seat who will then
    have a huge advantage in the next round of trying to raise the
    money that we all, I think, agree they should not be raising
    solely from large contributors.
        Representative Nadler. Thank you. I yield back.
        Chairman Feingold. Thank you, Mr. Nadler.
        We will alternate parties here. Mr. Gohmert.
        Representative Gohmert. Thank you, Chairman Feingold. I
    appreciate the opportunity to be here. And as Mr. Sensenbrenner
    said, there is--and Chairman Conyers--more feeling of comfort
    down here. It almost makes you want to pass a big omnibus bill
    or something.
        But on this issue, I have been really torn. I met with the
    Governor of Texas who is here today, and we had, I think, 21 or
    so Representatives, as many Democrats as Republicans, I think,
    in the meeting, and I asked them, ``What do you think? '' And
    as one Democrat said--and this seemed to be the consensus--
    ``Should we let one bad Governor in Illinois make us change
    everything? ''
        I do not know, maybe it is the spirit of the room or
    whatever, but I found significant points of interest in my
    friend Mr. Nadler and Mr. Conyers as well. Before 9/11, we did
    not worry so much about possible disasters leaving us without a
    Government to represent us. But I would just be interested in--
    and, Professor Karlan, I appreciate your use of the word
    ``illegitimate'' a number of times, ``illegitimate Senator,''
    ``illegitimate body.'' We have not heard that a lot back home
    in some years, that word.
        But I am curious. I did not hear anybody address that, I
    did not think, adequately. Suppose we had what was painted in
    Tom Clancy's novel back in the 1990s and then we saw in the 9/
    11 experience, suppose that plane had come in during a joint
    session and taken out our body. Do you think there is any merit
    to having some ability to have appointments, if necessary,
    immediately so that we do not just have two Representatives and
    two Senators, all that is left of a representative government
    from the States? I am open to anybody's comment. But that seems
    to be one factor that did not used to be as significant as it
    seems to be after 9/11. Any thoughts?
        Mr. Amar. Well, let me just jump in. I do think that is
    something to focus on. As I indicated, at a minimum, if you are
    going to amend the Constitution, it might be wise to build in
    such a fallback provision with a vacancy trigger. Even if you
    have a distaste for gubernatorial appointments, it is certainly
    better than having mass vacancies. And, again, you might want
    to do the same thing for the House of Representatives. You get
    to amend the Constitution so infrequently that I think cleaning
    up related messes makes sense.
        The only thing I would say--and Pam, I think, mentioned
    it--you do not want the perfect to be the enemy of the good.
    But since you are focusing on this now, and if you write the
    amendment so as to foreclose gubernatorial appointments
    altogether, such that you are not going to have statutory room
    later then to authorize a gubernatorial appointment in the
    event of an emergency, you have got to deal with it now. And I
    certainly do not think it is going to be easy to pass
    subsequent constitutional amendments.
        So including such a provision in the work that you do now,
    if you go the constitutional route, would seem to make sense to
    me.
        Representative Gohmert. Well, let me just say with regard
    to the House, we call it the ``people's House'' because right
    now it is the only Federal body where the only way in there is
    to be elected. But those of us representing districts, it seems
    like you could get an election a whole lot quicker, for
    example, in Texas for a Representative than you could for a
    Senator. So I am not sure if I would be in favor of undoing the
    process of elections in the House.
        Mr. Amar. I do think there is a difference between the
    House and the Senate, and the problem is more acute in the
    Senate. I agree with that. One could draw a line if one wanted
    to.
        Representative Gohmert. Any other comments? Yes.
        Mr. Spalding. I agree with the remarks about continuity of
    Government being an extremely important question that ought to
    be considered as we go down this path. In the current
    circumstances, that is something that has to be thought
    through.
        But having said that, I would point, as you have alluded to
    in all of your questions and all the questions raised here, all
    these questions that are brought today, I agree these are all
    legitimate concerns--cost, representation. The best place to
    make those decisions is for individual States to think it
    through themselves. The cost is very different in New York,
    say, as opposed to Delaware. That is the nature of the system
    the way it is set up.
        So all of these questions, it seems to me, suggest that
    there is not one uniform national rule that will fit in all
    cases. We actually want to have this variance of opinion and
    all them to make those decisions in the appropriate manner, and
    they can choose whether they are willing to allow for a lack of
    representation for a period of, say, 3 months or they would
    like to have a temporary appointment made by their Governor.
    That is a reasonable thing, and they ought to have the ability
    to do so.
        Mr. Edgar. I would like to respond to your first point
    about the fear of a catastrophic event. I think that whether it
    is the election or the appointment of Senators in a
    catastrophic event is going to be the least important issue
    when that event occurs. I think it is something to think about,
    but I would basically say my fear is that we do not have good
    health care, we do not have good public education, we do not
    have a good response to that catastrophe rather than what
    happens. If that kind of catastrophe happens, in my opinion, we
    would sort that out given the conditions of the catastrophe,
    and I just do not feel that you should hold up a thoughtful
    conversation on the selection of Senators based on the question
    of catastrophe. All of those issues will be considered given
    the nature of the catastrophe, but I do not think we ought to
    prejudge what that catastrophe----
        Representative Gohmert. But you surely would have to
    acknowledge that catastrophe is one of the factors that you use
    in considering--and I appreciate the Chairman's indulgence. I
    came in here unsure how I felt about a constitutional
    amendment, so I welcome all the positions. And if you knew
    which particular Senators each year were kept out of the joint
    session in the State of the Union, it might make some years
    more important to have quicker appointment than others. But
    thank you very much, Mr. Chairman.
        Chairman Feingold. Thank you. I appreciate your comments
    and I am about to turn to Representative Scott, but let me just
    say quickly, as people look at their views on this, we do not
    talk about federalism when we talk about the right to vote. The
    right to vote includes the right to vote for a Senator. We do
    not say, you know, in some States you can vote for a Senator
    and in some you cannot. You have a right to vote. And it seems
    very odd that since we fought so hard to make sure that
    everybody got the right to vote that in some States people are
    denied the right to vote when it comes to a vacancy. They
    simply do not get to vote. That rises to a very high level
    where it seems to me federalism is trumped. The very nature of
    the right to vote was all about trumping some extreme and wrong
    notions of federalism.
        And it is also odd that so many of these arguments that are
    made really would argue in favor of having similar flexibility
    with regard to House Members. You can argue that, obviously, a
    State is bigger than a congressional district, but not always.
    When you think about the arguments you are making, well, we
    really probably should have the option for appointing House
    Members then, too, to address all these concerns about cost and
    the like. And, obviously, I do not support that.
        Finally, more of a light-hearted note, I have just turned
    56 years old, and we have only had to have one special election
    for the U.S. Senate in my lifetime. That is the famous death of
    Joe McCarthy where Bill Proxmire was elected. So, fortunately,
    these things do not happen to Senators too often.
        Mr. Scott.
        Representative Scott. Thank you, Mr. Chairman.
        I think just in perspective, the question is not whether or
    not we ought to be debating, but whether the debate should take
    place in the State legislatures or the U.S. Congress. And it is
    not whether we would rather have appointed or elected Senators.
    The question is whether you would rather have an appointed
    Senator or a vacancy and whether or not the people are better
    off with an appointment by their elected Governor or no
    representation at all.
        In that light, let me ask the panel: What would be a
    reasonable time for an election in New York or California, some
    of the larger States, as opposed to some of the smaller States
    where you could probably have one in a couple of months?
    Because they are about the size of a congressional district,
    you could have one pretty quickly. What would be a reasonable
    time to have an election in a large State? Mr. Spalding.
        Mr. Spalding. I think that precisely is the question, and
    the answer there depends upon--it is going to be different from
    one State to the other State. And that suggests exactly why
    there should not be one rule.
        Representative Scott. The constitutional amendment before
    us lets the executive issue the writ of election. I guess he
    could decide how long it is. What would be a reasonable time?
    How long would, say, California or New York be without a
    representative? And I assume if you had a situation where you
    had a vacancy in Alaska and one in California, Alaska could
    have a quick election in a couple of months; in California, it
    might reasonably take to the primary-3 months to the primary, 3
    more months to the general election, maybe 6 months. What would
    be a reasonable--how long a vacancy are we talking about?
        Mr. Edgar. On a humorous note, I would say that the
    District of Columbia has been for many, many years with a
    vacancy.
        Representative Scott. We are trying to do something about
    that.
        [Laughter.]
        Mr. Edgar. I think that the amendment as proposed gives the
    State the opportunity to make the selection, and to your
    earlier point, I do not think it is catastrophic to be 120 days
    in the larger States and 90 days in the smaller States, or
    whatever makes the best sense for those States, particularly
    given what Mr. Kennedy talked about in terms of finding a time
    where--
        Representative Scott. You think you can do it--what are we
    talking, almost 120 days for the vacancies in the House. In
    Illinois--when is that election? New York? When are those
    elections. I mean, you are talking 3 months for a House of
    Representatives election.
        Mr. Edgar. Just to remind you that there are some other
    democracies that elect their Prime Ministers and Presidents in
    a shorter time than the United States does.
        Representative Scott. OK. Well, if the quickest we can
    reasonably fill a House vacancy is 3 months, you would expect a
    large State to be 4, 5, 6 months or more. Most people, when
    they announce for the U.S. Senate, announce about 2 years in
    advance in getting ready for an election. Professor Karlan.
        Ms. Karlan. Well, two points, Representative Scott. The
    first is having been on the Fair Political Practices Commission
    in California when we had the gubernatorial recall election, we
    actually can run a statewide election and produce a statewide
    winner in a couple of months. I think it was about 3 months
    from the time that the ballot initiative qualified until the
    special election was called, maybe slightly longer than that.
    So that can be done.
        The second point which I will just make is about the
    flexibility of the States, and as you know in your own State,
    the Commonwealth of Virginia, the parties have some control
    over how they do nominations for seats so that sometimes they
    use primaries--the Democrats often do. The Republicans, as you
    know, often use conventions. And so it is available to a State,
    for example, to have a process in place by which, if there is a
    vacancy, you do not have primary elections for that vacancy.
    You go straight to conventions, and then you go straight into a
    general election.
        So leaving aside Representative Nadler's point about the
    money, which I agree with 100 percent, in terms of the
    logistics I do not think the logistics will take all that much
    longer for a senatorial election than to fill other kinds of
    vacancies.
        Representative Scott. My time is running out, but in the
    last 12 years, the margin in the Senate has been often one
    vote. I think about half the time in the last 12 years it has
    been one vote. If you go 6 months with a vacancy, does that
    mean that the control of the Senate flips until the election is
    held and flips back? How would that work?
        Mr. Edgar. You have that situation now with Minnesota.
        Representative Scott. Well, this would happen more often.
    If you go 6 months with a vacancy, that would be a routine--
        Mr. Edgar. And the United States has not come to a
    screeching halt in terms of legislative priorities as the State
    itself sorts out who they want to represent them and who the
    people, in fact, have elected.
        Ms. Karlan. Well, and there may be a question about
    legitimacy here. I hate to use the word again, but imagine, for
    example, that the Senate is very closely divided and a Senator
    dies, and then a Governor from the other party appoints
    somebody who the people of that State would never have elected,
    and that switches control of the Senate. It is not clear to me
    that that does not cause you exactly the same problem.
        Chairman Feingold. Thank you, Professor Karlan. Thank you,
    Mr. Scott.
        Mr. Johnson, please.
        Mr. Johnson. Thank you, Mr. Chairman.
        In January of 2009, we have an unfolding drama in Illinois,
    allegations that the Governor attempted to sell a Senate
    appointment. And that was just a couple of months ago, and now
    in response to--I would argue in response to that we have this
    move to amend our Constitution. And I want everybody to know
    that, you know, I do not think that it is a given that the
    Governor is guilty of whatever, I assume, he will be charged
    with. And it is important to note that he has not even been
    indicted yet, much less convicted, and he certainly has a
    presumption of innocence.
        And so for us to assume that that is what he did and then
    as a premise look at amending our Constitution to make sure
    that that does not happen, I am kind of leery about that. And I
    am also troubled by the fact that States can set elections for
    a special election in--you know, you have to do it in 45 days,
    some might say between 90 and 120 days. Special elections
    probably should be uniform so that everyone, all Americans
    would have the same opportunity to experience a vigorous
    campaign, debates, forums, that kind of thing, before they are
    called upon to cast their vote.
        And so having said that, I kind of like the idea that
    Representative Schock put forth to make changes in the way that
    Senators are appointed to fill vacancies. I think that that is
    probably a more prudent approach. And I am looking here at
    Section 4 of Article I of our Constitution: ``The times,
    places, and manner of holding elections for Senators and
    Representatives shall be prescribed in each State by the
    legislature thereof; but the Congress may at any time by law
    make or alter such regulations, except as to the place of
    choosing Senators.''
        So the first question I want to ask, or the main question I
    want to ask is: If anyone has had a chance to review
    Representative Schock's proposed legislation, I would like to
    know whether or not you feel that that legislation could
    accomplish what this constitutional amendment would accomplish?
        Mr. Amar. Well, as I said in my earlier remarks, I think it
    would accomplish a great deal of what is behind the
    constitutional amendment. It does not fully address the
    question that Pam Karlan and others have raised about whether
    any appointed Senator has legitimacy to act on behalf of the
    State. But I think it does help address Mr. Scott's concern of
    States being underrepresented during that time, during the time
    of a vacancy, by having somebody in there, but then somebody
    who cannot be there for more than 90 days without having won a
    vote of the people.
        The one other thing, as I mentioned earlier, you could not
    do under Article I, Section 4 is prevent that appointed person
    from running in the election thereafter. And if you are worried
    about the kind of incumbency status that arises from having the
    office for up to 90 days, then you cannot statutorily do
    anything about that because you can set the time of the
    election, but you cannot set the qualifications for that
    election.
        Mr. Johnson. Thank you, sir. My time has about ended. I
    will just close with the observation that it is better to have
    some representation--it is better to have appointed
    representation than no representation, especially at crucial
    times like we face today.
        Thank you.
        Chairman Feingold. Representative Jackson Lee.
        Representative Jackson Lee. Thank you very much, Mr.
    Chairman. As I have sat here this morning and now almost
    afternoon, it becomes very clear that this hearing becomes more
    important by the moment, and I thank you for joining with the
    House on this constitutional question and I think something
    that the public should take notice of because it speaks to
    representation.
        Our time is short, so let me pose my questions, and I
    appreciate your answers in that context. I want to go to my
    good friend Bob Edgar, and let me just suggest that your
    election was not a mistake. We are grateful for your service
    and your service now. But your testimony indicates that this
    proposed amendment is in keeping with the strides toward
    democracy and, of course, your eloquent quoting of Dr. King.
        The majority of States allow gubernatorial appointment of
    Senate seats. Are gubernatorial appointments in your view of
    Senate seats inherently undemocratic?
        Mr. Edgar. I think they are, and this is a personal view,
    but shared by many members of Common Cause. I think we believe
    that the best way to serve democracy is for the election of
    House and Senate Members, and we see that over and over again.
    And I would like to speak just quickly to Mr. Johnson's point.
    It looks like this hearing is only about the issue in Illinois.
    I would say strongly that our constituents of Common Cause are
    concerned about the issue in Delaware, the issue in New York,
    the issue in Colorado, and other places.
        I think it is important for us to recognize that it is not
    just the Illinois Governor's appointment. There have been
    stumbles and fumbles on several other aspects of the election,
    and the people really need to be served, as opposed to the
    interest of one person--namely, the Governor.
        Representative Jackson Lee. Thank you very much. Let me go
    to the constitutional question and also the extensive amount of
    time that it takes to amend the Constitution and the sacredness
    in which I think most of us, on behalf of the American people,
    hold this process of constitutional amendments. And I would
    like to--I associate myself with the idea of public finance,
    for example, in this narrow window. That might equalize the
    kinds of persons that can come into the U.S. Senate, such as
    celebrities like Senator Feingold and stars getting their way
    into the body. But I do know, knowing Senator Feingold and the
    Chairman, that he welcomes the everyman and everywoman. And I
    happen to think that the 90-day window may be favorable.
        I would ask Professor Amar and my good friend--I know we
    have been together before--Professor Karlan two issues very
    quickly. Distinctly separate the constitutional approach versus
    the statutory approach, and what is your angst or your
    disagreement, Professor Amar, in particular, with the
    constitutional approach? And, Professor Karlan, just your
    analysis on why the view of the statute, which for me says,
    very quickly, that if there was a terrorist act and the only
    person standing was the Governor, we are stuck with the
    constitutional amendment. But I am open to how we can make this
    most effective. I certainly think there is a constitutional or
    democratic question or people's question of getting people to
    elect their Representative. Professor Amar.
        Mr. Amar. Sure. Statutorily, you can make the term of any
    appointment very small by setting a requirement that there be
    an election within a short period of time when the vacancy
    occurs. But you cannot foreclose a State from trying to appoint
    someone for whatever that window is, because the 17th Amendment
    right now gives States the power to fill vacancies until the
    next election. You can set the time for the next election a
    week after the vacancy, but, of course, then you have got the
    problem of no voter turnout and not a full and fair election
    because no one could really run.
        So if you have an election set for 90 days or so after a
    vacancy----
        Representative Jackson Lee. By statute.
        Mr. Amar. By statute, you can limit the term of a
    gubernatorial appointee, but you cannot eliminate that
    altogether. So----
        Representative Jackson Lee. The statute does not eliminate
    it, so the Governor can appoint----
        Mr. Amar. That is right.
        Representative Jackson Lee. But that person has to stand
    for election in 90 days.
        Mr. Amar. That is right.
        Representative Jackson Lee. Is there a problem with that?
        Mr. Amar. I do not see a problem with that, which is why I
    support the statute. But if you believe that there should be no
    appointees at all because they are inherently illegitimate
    democratically, then the statute does not get rid of that
    problem.
        Representative Jackson Lee. OK. And your problem with the
    constitutional amendment?
        Mr. Amar. Well, again, I think it is--I think it is
    important for States to be represented even in that window, and
    I think it is also important to proceed incrementally.
        Representative Jackson Lee. I thank you.
        Professor Karlan.
        Ms. Karlan. Two points. It is always good to see a
    satisfied client.
        The first is to draw an analog here to the 23rd Amendment,
    which I know is near and dear to many of you, which is the 23rd
    Amendment went part of the way toward enfranchising the people
    of D.C., and we are now in the process of seeing whether a
    statute can do the rest of that. And, you know, there is
    constitutional doubt about statutes like that, and there is
    going to be lots of litigation and the like, because there are
    some things that cannot easily be done through statutes.
        The same thing here. You can get most of the way there, but
    you cannot get the whole way there to ensuring that the Senate
    represents the people.
        Now, I agree with you, I agree with all of the other
    members who have said you need to do some serious thinking
    about continuity in Government. And I support thinking
    seriously about the continuity in Government point, but that is
    different than the normal kind of predictable, actuarial
    vacancies in the Senate. And as to those, I think a
    constitutional amendment is the way to go. And just the sheer
    length of time it is going to take for an amendment to get
    proposed, sent out to the States for ratification and the like
    allows, I think, for a goodly amount of time for discussion and
    debate. And ultimately the people of the several States will
    decide whether they want a gubernatorial election to occur or
    not by deciding whether they are going to ratify the amendment.
    But I think that process of having that conversation at a
    constitutional level is important and valuable.
        Representative Jackson Lee. Well, as usual, you all have
    shed light on areas that have been quite gray, and it will give
    us a lot to think about. It is a very important question that
    we are raising, and I think the issue of democracy and the
    people's choice may be swaying us to move forward as quickly as
    possible.
        I thank you, Mr. Chairman, and I yield back.
        Chairman Feingold. Thank you, Representative. I am pleased
    we were able to have all the House Members here have a round
    before their votes start.
        Let me take my time and first say thank you to Mr. Edgar
    for pointing out this is not just about Illinois. Each of the
    situations that has occurred raises, in my view, serious
    concerns that have really nothing or very little to do with the
    people who are appointed. But without getting into the
    specifics, each of them raises real concerns when you do not
    have all the people being eligible to choose somebody, when it
    is just one person who can make the choice.
        And, frankly, I say to my friends from the House, the more
    you tell me that it is better to have somebody appointed than
    to have a vacancy, well, maybe you ought to reconsider what
    happens when House Members have to change. If that is true, we
    should change the Constitution to have appointment of House
    Members. We cannot have it both ways, and I strongly oppose
    that. I think the notion that people have a right to vote for
    their House Members or their Senators applies with equal force.
        So the more I hear this notion that somehow you have got to
    have somebody appointed right away, you cannot have a gap, that
    really raises questions about the whole way in which the House
    of Representatives is constituted. And I have no problem with
    the way it is constituted.
        Mr. Kennedy, just very quickly, I wanted to know your
    reaction to what seems to be another argument that is
    constantly raised, the assumption of some of my colleagues
    somehow that special elections would take longer to organize in
    larger or more populous States. Could you comment on that?
        Mr. Kennedy. Well, I think it has already been pointed out,
    Senator, that California can run an election--it was a bit
    chaotic, their election, but--maybe I am understating it for
    those that live in California. But it can be done, and it is
    done in several countries. Wisconsin, which is 24th in
    population, 26th in geographic size, holds its special
    elections, the shortest 62 days from the time the Governor
    calls the order. You look at other countries and how they
    organize it, it can be done, where if you leave it to the
    States, it is how they organize that election process.
        I would also say that the public really does not want to
    see an election that goes on for 5 months. You know, while the
    candidates may want to articulate their positions and
    articulate their positions, given the media that we have in
    this country and the ability to communicate, I think the public
    could be well informed. I think the infrastructure exists that
    we can actually conduct an election, as, again, in Wisconsin we
    are doing it in as short as a 9-week period. So I think it is
    practically there.
        And when you think about the information that the people
    are going to have to make their choice, it can be done in that
    period of time. And----
        Chairman Feingold. And in that spirit, I want to turn to
    Mr. Edgar on this question of cost, and Mr. Nadler is concerned
    about the high cost of a statewide election to States like New
    York. Isn't one of the main contributors to the cost of an
    election the length of the campaign? It costs a lot more to run
    ads for 9 months than it does to run them for 3 months, doesn't
    it?
        Mr. Edgar. That is absolutely correct. I think we drag out
    these elections. We ought to take a look at the Presidential
    election. It probably has already started for 2012.
        I think we in the United States need to figure out systems
    where elections can be fair, where the machinery works, where
    there can be a paper trail and audited, and I think Minnesota
    has shown that, in fact, they had the right machines, they had
    the process, they had a close election. It could be verified.
    It is taking a long time. But I think normally we can shorten
    the time. It would shorten the cost, and I think we would have
    a better Congress if we knew that all were representing all the
    people.
        Chairman Feingold. Thank you.
        Mr. Neale, thanks for all the work you have done again, and
    your colleagues. Both Dr. Spalding and Dean Amar are very
    concerned about the possibility that States will lack full
    representation in the Senate for several months. Of course,
    this can even happen when a seat is not vacant, because of an
    illness, for example. I can think of several Members of the
    Senate since I have been here who have been unavoidably absent
    for weeks or months at some point in their service.
        You have been at CRS for quite a while. Can you think of
    some examples that former Senators were unable to vote on the
    floor for extended periods of time?
        Mr. Neale. Certainly, Mr. Chairman. I think probably the
    champion in this case was Senator Carter Glass from Virginia,
    who was President Pro Tem and I believe Chair of the Committee
    on Appropriations. From about 1942 through 1946, he was
    basically bedridden with serious heart problems, and he finally
    did die before the end of his term. But for a 4-year period, he
    did not appear in the Senate chamber.
        More recently, in 1964, Senator Clair Engle of California
    was ill with--being treated for a brain tumor, from which he
    ultimately died, and, in fact, came to the Senate in a very
    dramatic moment to cast his vote. He could not speak. He raised
    his hand to cast a vote to break the filibuster on the Civil
    Rights Act of 1964.
        And, more recently, Senator Karl Mundt suffered a disabling
    stroke so far as speech was concerned. He became aphasic in
    1969, continued to serve out his term while from his hospital
    bed or from home from 1969 until 1972. And at that time, it was
    pointed out, with Senator McGovern campaigning for President
    and Senator Muntz essentially disabled, that the State was
    without a Senator for a full year.
        Chairman Feingold. Thank you. One more question.
        Mr. Segal, Dean Amar suggests that special elections are an
    unappealing method of filling Senate vacancies due to low voter
    turnout. Do you agree with his statement that the premise that
    popular elections are the best way to pick a Senator is
    justified only when ``those popular elections are ones in which
    a broad cross section of statewide voters are encouraged and
    likely to participate? ''
        Mr. Segal. I think higher participation is obviously
    preferable to lower participation, but I think that to have a
    Senator selected by perhaps not the entire breadth of the
    electorate but a large portion of it is certainly preferable an
    appointee by a single individual. And there are in our
    estimation ways of increasing turnout in special elections. We
    in particular support instant runoff voting, which has been
    incorporated into the legislation that is pending before the
    Vermont Legislature right now, which would compress the general
    election and the primary election, increasing the number of
    candidates on the ballot, increasing the focus on that
    particular date, and likely increasing turnout.
        Chairman Feingold. Thank you very much.
        Mr. Gohmert, did you have anything further?
        Representative Gohmert. No. Thank you very much. I do
    appreciate the manner in which you have conducted the hearing,
    and it is heartwarming to note from your comments that you
    really see no difference between Senators and Representatives.
        Chairman Feingold. Absolutely none. Celebrities and
    millionaires all.
        Mr. Scott.
        Representative Scott. No. Thank you very much, Mr.
    Chairman.
        Chairman Feingold. OK. Thank you all. Of course, I thank
    all the witnesses.
        If there are no further questions, we will bring this
    hearing to a close. Once again, I want to thank all the
    witnesses for their very thoughtful written testimony and oral
    presentations. It has been a fascinating hearing. I think all
    the major issues raised with regard to the proposed
    constitutional amendment have been aired with great care.
        The record of this hearing will be a significant aid to
    Members of Congress, and hopefully State legislatures who will
    have to decide, of course, how to vote on the amendment if we
    are able to get it to them.
        I want to thank my colleagues who have participated for
    their insights as well, and I look forward to working with all
    of you as we move this amendment through the legislative
    process.
        The record of this hearing will remain open for one week
    for the witnesses or anyone who has not testified today to
    submit any materials they wish to provide for the record.
    Members will have the same amount of time to submit written
    questions, and we will ask the witnesses to respond to those
    questions promptly so that we can close the record in a
    reasonable amount of time.
        Again, I thank everyone who has participated in the
    hearing, and the hearing is adjourned.
        [Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]
        [Questions and answers and submissions for the record
    follow.]

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