[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




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                  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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