[Senate Hearing 111-203]
[From the U.S. Government Publishing Office]
S. Hrg. 111-203
S.J. RES. 7 AND H.J. RES. 21: A CONSTITUTIONAL AMENDMENT CONCERNING
SENATE VACANCIES
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
and
HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES,
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
----------
MARCH 11, 2009
----------
Senate Serial No. J-111-10
----------
House Serial No. J-111-34
----------
Printed for the use of the Committee on the Judiciary
S. Hrg. 111-203
S.J. RES. 7 AND H.J. RES. 21: A CONSTITUTIONAL AMENDMENT CONCERNING
SENATE VACANCIES
=======================================================================
JOINT HEARING
before the
SUBCOMMITTEE ON THE CONSTITUTION
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
and
HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON THE CONSTITUTION, CIVIL RIGHTS, AND CIVIL LIBERTIES,
ONE HUNDRED ELEVENTH CONGRESS
FIRST SESSION
__________
MARCH 11, 2009
__________
Senate Serial No. J-111-10
__________
House Serial No. J-111-34
__________
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
54-105 PDF WASHINGTON : 2010
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20402-0001
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin ARLEN SPECTER, Pennsylvania
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JON KYL, Arizona
RICHARD J. DURBIN, Illinois JEFF SESSIONS, Alabama
BENJAMIN L. CARDIN, Maryland LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island JOHN CORNYN, Texas
RON WYDEN, Oregon TOM COBURN, Oklahoma
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
Bruce A. Cohen, Chief Counsel and Staff Director
Nicholas A. Rossi, Republican Chief Counsel
------
SUBCOMMITTEE ON THE CONSTITUTION
RUSSELL D. FEINGOLD, Wisconsin, Chairman
DIANNE FEINSTEIN, California TOM COBURN, Oklahoma
RICHARD J. DURBIN, Illinois ARLEN SPECTER, Pennsylvania
BENJAMIN L. CARDIN, Maryland LINDSEY O. GRAHAM, South Carolina
SHELDON WHITEHOUSE, Rhode Island JOHN CORNYN, Texas
EDWARD E. KAUFMAN, Delaware
Robert F. Schiff, Democratic Chief Counsel
Brook Bacak, Republican Chief Counsel
COMMITTEE ON THE JUDICIARY
JOHN CONYERS, Jr., Michigan, Chairman
HOWARD L. BERMAN, California LAMAR SMITH, Texas
RICK BOUCHER, Virginia F. JAMES SENSENBRENNER, Jr.,
JERROLD NADLER, New York Wisconsin
ROBERT C. ``BOBBY'' SCOTT, Virginia HOWARD COBLE, North Carolina
MELVIN L. WATT, North Carolina ELTON GALLEGLY, California
ZOE LOFGREN, California BOB GOODLATTE, Virginia
SHEILA JACKSON LEE, Texas DANIEL E. LUNGREN, California
MAXINE WATERS, California DARRELL E. ISSA, California
WILLIAM D. DELAHUNT, Massachusetts J. RANDY FORBES, Virginia
ROBERT WEXLER, Florida STEVE KING, Iowa
STEVE COHEN, Tennessee TRENT FRANKS, Arizona
HENRY C. ``HANK'' JOHNSON, Jr., LOUIE GOHMERT, Texas
Georgia JIM JORDAN, Ohio
PEDRO PIERLUISI, Puerto Rico TED POE, Texas
LUIS V. GUTIERREZ, Illinois JASON CHAFFETZ, Utah
BRAD SHERMAN, California TOM ROONEY, Florida
TAMMY BALDWIN, Wisconsin GREGG HARPER, Mississippi
CHARLES A. GONZALEZ, Texas
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SANCHEZ, California
DEBBIE WASSERMAN SCHULTZ, Florida
DANIEL MAFFEI, New York
[Vacant]
Perry Apelbaum, Staff Director and Chief Counsel
Sean McLaughlin, Minority Chief of Staff and General Counsel
------
Subcommittee on the Constitution, Civil Rights, and Civil Liberties
JERROLD NADLER, New York, Chairman
MELVIN L. WATT, North Carolina F. JAMES SENSENBRENNER, Jr.,
ROBERT C. ``BOBBY'' SCOTT, Virginia Wisconsin
WILLIAM D. DELAHUNT, Massachusetts TOM ROONEY, Florida
HENRY C. ``HANK'' JOHNSON, Jr., TRENT FRANKS, Arizona
Georgia STEVE KING, Iowa
TAMMY BALDWIN, Wisconsin JIM JORDAN, Ohio
JOHN CONYERS, Jr., Michigan LOUIE GOHMERT, Texas
STEVE COHEN, Tennessee
BRAD SHERMAN, California
SHEILA JACKSON LEE, Texas
David Lachmann, Chief of Staff
Paul B. Taylor, Minority Counsel
C O N T E N T S
----------
STATEMENTS OF COMMITTEE MEMBERS
Page
Feingold, Hon. Russell D., a U.S. Senator from the State of
Wisconsin...................................................... 1
prepared statement........................................... 226
Coburn, Hon. Tom, a U.S. Senator from the State of Oklahoma...... 3
prepared statement........................................... 111
Conyers, Hon. John Jr., a Representative in Congress from the
State of Michigan.............................................. 5
prepared statement........................................... 187
Durbin, Hon. Richard J., a U.S. Senator from the State of
Illinois, prepared statement................................... 219
Kaufman, Hon. Edward E., a U.S. Senator from the State of
Delaware....................................................... 3
prepared statement........................................... 235
Lee, Sheila Jackson, a Representative in Congress from the State
of Texas....................................................... 266
Nadler, Hon. Jerrold, a Representative in Congress from the State
of New York.................................................... 5
Sensenbrenner, F. James, Jr., a Representative in Congress from
the State of Wisconsin......................................... 6
prepared statement........................................... 296
WITNESSES
Amar, Vikram D., Associate Dean for Academic Affairs and
Professor of Law, University of California, Davis School of
Law, Davis, California......................................... 24
Begich, Hon. Mark, a U.S. Senator from the State of Alaska....... 8
Dreier, Hon. David, a Representative in Congress from the State
of California.................................................. 10
Edgar, Bob, President and Chief Executive Officer, Common Cause,
Washington, DC................................................. 16
Karlan, Pamela S., Kenneth and Harle Montgomery Professor of
Public Interest Law, Stanford Law School, Stanford, California,
and Co-Director, Stanford Law School Supreme Court Litigation
Clinic......................................................... 26
Kennedy, Kevin J., Director and General Counsel, Wisconsin
Government Accountability Board, Madison, Wisconsin............ 18
Neale, Thomas H. Specialist in American National Government,
Congressional Research Service, Wahsington..................... 14
Schock, Hon. Aaron, a Representative in Congress from the State
of Ilinois..................................................... 12
Segal, David, Analyst, FairVote, Rhode Island State
Representative, Providence, Rhode Island....................... 22
Spalding, Matthew, Director, B. Kenneth Simon Center for American
Studies, The Heritage Foundation, Washington, D.C.............. 20
QUESTIONS AND ANSWERS
Responses of Vikram Amar to questions submitted by Senators
Coburn and Conyers............................................. 41
Responses of Bob Edgar to questions submitted by Senators Coburn
and Conyers.................................................... 50
Responses of Pamela S. Karlan to questions submitted by Senators
Coburn and Conyers............................................. 59
Responses of Kevin J. Kennedy to questions submitted by Senators
Coburn and Conyers............................................. 65
Responses of Thomas H. Neale to questions submitted by Senators
Coburn and Conyers............................................. 76
Responses of David Segal to questions submitted by Senators
Coburn and Conyers............................................. 82
Responses of Matthew Spalding to questions submitted by Senators
Coburn and Conyers............................................. 89
SUBMISSIONS FOR THE RECORD
Amar, Vikram D., Associate Dean for Academic Affairs and
Professor of Law, University of California, Davis School of
Law, Davis, California, statement.............................. 95
Begich, Hon. Mark, a U.S. Senator from the State of Alaska,
statement...................................................... 106
Brunner, Jennifer, Ohio Secretary of State, Columbia, Ohio,
statement...................................................... 109
Continuity of Congress, Lloyd Cutler, Co-chairman and Alari
Simpson, Co-chairman, Washington, DC:
Report....................................................... 113
Associated Press, May 30, 2002, article...................... 183
New York Times, March, 14, 2002, article..................... 185
Congressional Reserch Service, Washington, DC:
Selected Data on Persons Appointed to the U.S. Senate, or
Elected to the U.S. Senate in Special Elections, since the
Ratification of the 17th Amendment to the Constitution in
1913, memorandum........................................... 191
General Statistics on Special Elections: Corrected,
memorandum................................................. 208
Length of Seat Vacancy Before Gubernatorial Appointment,
memorandum................................................. 211
Dreier, Hon. David, a Representative in Congress from the State
of California, statement....................................... 214
Edgar, Bob, President and Chief Executive Officer, Common Cause,
Washington, D.C., statement.................................... 221
Karlan, Pamela S., Kenneth and Harle Montgomery Professor of
Public Interest Law, Stanford Law School, Stanford, California,
and Co-Director, Stanford Law School Supreme Court Litigation
Clinic, statement.............................................. 228
Kennedy, Kevin J., Director and General Counsel, Wisconsin
Government Accountability Board, Madison, Wisconsin, statement. 237
Neale, Thomas H. Specialist in American National Government,
Congressional Research Service, Washington, statement.......... 271
Otter, C.L. ``Butch'', Governor, State of Idaho, statement....... 273
Perry, Rick, Governor, State of Texas, statement................. 274
Reed, Sam, Secretary of State of Washington, Olympia, Washington,
letter......................................................... 275
Schock, Hon. Aaron, a Representative in Congress from the State
of Ilinois, statement.......................................... 276
Segal, David, Analyst, FairVote, Rhode Island State
Representative, Providence, Rhode Island, statement............ 287
Spalding, Matthew, Director, B. Kenneth Simon Center for American
Studies, The Heritage Foundation, Washington, D.C., statement.. 301
S.J. RES. 7 AND H.J. RES. 21: A CONSTITUTIONAL AMENDMENT CONCERNING
SENATE VACANCIES
----------
WEDNESDAY, MARCH 11, 2009
U.S. Senate,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives,
Subcommittee on the Constitution, Civil Rights, and Civil
Liberties,
Committee on the Judiciary,
Washington, DC
The Subcommittees met, pursuant to notice, at 10:05 a.m.,
in room SH-216, Hart Senate Office Building, Hon. Russ
Feingold, Chairman of the Senate Subcommittee, and Hon. John
Conyers, Jr., Chairman of the House Committee, presiding.
Present: Senators Feingold, Cardin, Kaufman, and Coburn;
Representatives Conyers, Nadler, Scott, Johnson, and Jackson
Lee.
OPENING STATEMENT OF HON. RUSS FEINGOLD, A U.S. SENATOR FROM
THE STATE OF WISCONSIN
Chairman Feingold. The hearing will come to order. I want
to welcome everyone to this joint hearing of the House and
Senate Constitution Subcommittees on S.J. Res. 7 and H.J. Res.
21, which are both proposed constitutional amendments
concerning Senate vacancies. A special welcome to our
colleagues from the House side, especially two longtime
friends: John Conyers, the Chair of the House Judiciary
Committee, who will act as the Chair of the House Subcommittee
today, and, of course, James Sensenbrenner from my own State of
Wisconsin, a former Chair of the House Judiciary Committee, who
now serves as the Ranking Member of the House Subcommittee.
I want to thank my new Ranking Member, Senator Coburn, and
his staff for their great cooperation in putting this unusual
hearing together. This is the first hearing that Dr. Coburn and
I have worked on together--we have worked on many issues
together--and I look forward to continuing the productive
working relationship that we have had on those issues in the
past as he takes on this new role.
Joint hearings of House and Senate Committees are not
unprecedented, but they are unusual. I think it is fitting that
we are holding this particular joint hearing because the topic
is so timely and so fundamental. There are now four Senators
who will serve until the next general election, still 20 months
away, who were not elected by their constituents. They serve
because of what I have a called a ``constitutional
anachronism,'' which allowed the Governors of their States to
appoint them to serve.
Now, I want to be clear. I don't have anything against
these newest Senators. In fact, I have developed a good
relationship with all of them and think a great deal of them. I
hope and expect that they will serve with great distinction, as
quite a few appointed Senators have done in the past. But when
over 12 percent of our citizens are represented by someone in
the Senate who they did not elect, I think that is a problem
for our system of democracy. And it is a problem that I think
only can be fixed properly by a constitutional amendment.
In 1913, the citizens of this country, acting through their
elected State legislatures, ratified the Seventeenth Amendment
to the Constitution, providing for the direct election of
Senators. That ratification was the culmination of a nearly
century-long struggle. The public's disgust with the
corruption, bribery, and political chicanery that resulted from
the original constitutional provision giving State legislatures
the power to choose United States Senators was a big motivation
for the amendment. As we have seen in recent months,
gubernatorial appointments may pose the same dangers. They
demand the same solution and, that is, direct elections.
The constitutional anachronism was created by the inclusion
in the Seventeenth Amendment of a proviso, permitting State
legislatures to empower their Governors to make temporary
appointments in the case of an unexpected vacancy. Since the
Seventeenth Amendment, 184 such appointments have been made. So
this departure from the principle that was behind the
Seventeenth Amendment itself--that the people should elect
their Senators--is by no means an uncommon occurrence.
I believe that those who want to be a U.S. Senator should
have to make their case to the people whom they want to
represent, not just the occupant of the Governor's mansion. And
the voters should choose them in the time-honored way that they
choose the rest of the Congress of the United States--in an
election.
This proposal is not simply a response to the latest cases
that have been in the news over the past few months. These
cases have simply confirmed my longstanding view that Senate
appointments by State Governors are an unfortunate relic of the
pre-Seventeenth Amendment era, when State legislatures elected
U.S. Senators, and those legislatures might only meet for a few
months a year. I view this issue, at base, as a voting rights
question. The people of this country should no longer be
deprived, for months or even years, of their right to be
represented in the Senate by someone whom they have elected.
Direct election of Senators was championed by the great
progressive Bob La Follette, who served as Wisconsin's Governor
and a U.S. Senator. We need to finish the job started by La
Follette and other reformers nearly a century ago. No one can
represent the people in the House of Representatives without
the approval of the voters, and the same should be true for the
Senate. I look forward to the testimony of our witness on this
very important topic.
And now, just prior to turning to our Ranking Member, I am
going to turn to Senator Ted Kaufman of Delaware, who has to
leave but who wants to make a brief statement.
STATEMENT OF HON. TED KAUFMAN, A U.S. SENATOR FROM THE STATE OF
DELAWARE
Senator Kaufman. Thank you, Mr. Chairman. I appreciate the
courtesy, and I think this is a great hearing. I thank two
great Chairs, Congressman Conyers and Congressman Feingold, and
Ranking Members Coburn and Sensenbrenner, I think this is a
good idea.
As the only person in the room, I think, that this applies
to, there have only been 185 appointed Senators in the history
of the country, but I really associate my remarks to Chairman
Feingold's remarks about the fact that this is a democracy,
that the elected officials should be picked by a democracy. I
think that is really the key part of our system. I have great
faith in democracies. So I think the idea of having appointed
Senators should yield to the idea of having elected Senators,
even for special elections.
The one concern I have, which I have expressed many times,
as long as I have been involved in the Senate as a staff person
and now as a Senator, is I have a real question about when we
should be amending the Constitution. I think our Founding
Fathers were--to say ``brilliant'' really understates it, in
how they set this Government up. We have had a few
constitutional amendments over the course of our Government. So
I am looking forward to what you say, but basically I am
concerned about amending the Constitution, but I think anything
we can do to encourage Governors and State legislatures to do
the right thing and have limited appointed Senators and have
Senators elected would be a good thing.
I have a statement to put in the record, and I want to
thank you, Mr. Chairman and Chairman Conyers, for giving me
this courtesy. I appreciate it.
Chairman Feingold. I thank you, Senator, and I thank you
for your service on this Committee.
I am pleased now to turn to our Ranking Member of the
Senate Subcommittee, Senator Coburn.
STATEMENT OF HON. TOM COBURN, A U.S. SENATOR FROM THE STATE OF
OKLAHOMA
Senator Coburn. Thank you, Mr. Chairman. This marks the
first hearing of the Senate Judiciary Subcommittee on the
Constitution in this Congress, but it is also the first hearing
I have attended as Ranking Member of this important
Subcommittee. I consider it a high honor to serve in this role,
as matters within this Committee's jurisdiction--such as
constitutional amendments and rights, separation of powers and
federalism, as well as civil rights and civil liberties--are
among the Senate's most awesome responsibilities.
I also consider it an honor to serve alongside Chairman
Feingold, whose command of the law I have always respected. I
look forward to working with him and his especially, and other
members of this Subcommittee.
It is fitting that our first order of business is a
proposal to amend the Constitution. The matter at hand serves
as a reminder of the gravity of our responsibilities as members
of this Subcommittee.
Like the Chairman, I do not consider constitutional
amendments lightly. Modifying the Nation's founding document
should only be done in the most compelling circumstances. Just
this week, some seven proposed constitutional amendments were
referred to this Subcommittee. While it is highly unlikely that
all will be considered, our responsibility as members of this
Subcommittee is to thoroughly vet and debate such proposals
before they advance in Congress.
After all, constitutional amendments are relatively rare.
Since 1789, more than 5,000 proposals to amend the Constitution
have been introduced in Congress, yet only 33 have gone to the
States for ratification. By design, the Constitution is very
difficult to alter. The Founders struck a brilliant balance by
creating a document that is amendable, yet authoritative, and
their design has served the Republic well.
In reality, proponents of this--and any other--
constitutional amendment face overwhelmingly unfavorable odds.
Fortunately, proponents of the amendment at issue today do not
have to wait for approval of supermajorities in the House and
Senate and three-fourths of the States. The Constitution
permits what the amendment would require.
Although this hearing is intended to advance S.J. Res. 7
and H.J. Res. 21, it may also lead to further discussion within
the States about the most prudent way to fill their own Senate
vacancies. These discussions began in light of the inordinate
number of vacancies created after this most recent Presidential
election. And, most notably, the scandal sparked by Illinois
Governor Rod Blagojevich's efforts to fill the seat of our
newly elected President exposed the potential for corruption in
gubernatorial appointments. Although calls for a special
election in Illinois were rejected at the time, the fallout
from that appointment continues, and we find ourselves here
today debating a proposal that would require for all States
what one State would not do for itself.
It is important to note that the vast majority of States
have chosen to exercise their constitutional right to allow
gubernatorial appointments. Ironically, the Chairman and I
represent two of the small handful of States that do not allow
such appointments. While the citizens of Wisconsin and Oklahoma
have clearly determined that special elections are their own
preferred course, whether the same approach is right for all of
the other States is still an open question.
Although the witness panel includes diverse perspectives,
there are many important voices not present in today's debate.
To that end, I would like to submit the statements from
Governors who oppose this amendment, including the Governors of
Texas and Idaho. I have yet to hear anyone espouse the virtues
of appointed representation over elected representation, but I
have heard legitimate concerns raised about the practical
implications this amendment may have for the States. It is
important that we carefully consider all sides of this debate
before moving forward on this amendment, and I invite others to
weigh in on this proposal, even after this hearing is over.
I look forward to our witnesses' testimony. I thank, Mr.
Chairman, for this, and I do look forward with great
anticipation to working with you, and I would submit these two
letters from the Governor of Texas and the Governor of Idaho.
Chairman Feingold. They will be entered, without objection,
and thank you, Senator Coburn.
I now recognize the Chairman of the House Judiciary
Committee, Mr. Conyers.
STATEMENT OF HON. JOHN CONYERS, JR. A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MICHIGAN
Chairman Conyers. Thank you very much, and good morning. It
is a pleasure and honor, and a little bit intimidating, to be
on the Senate side. Everything seems so formal and wonderful
looking. Even the people that come in the doors to visit you
seem to be more businesslike. We have got to check up for a
little bit more equity in terms of the appointments of these
buildings.
Senator Coburn. The budgets.
Chairman Conyers. We will look into the budget a little bit
later.
[Laughter.]
Chairman Conyers. But it is always a pleasure to be here in
these kinds of discussions with our colleagues in the other
body, and I am happy that we are all here today.
The only point I want to make before I yield to the
Chairman of the Constitution Committee on the House Judiciary,
Jerry Nadler, is to say that my only problem about this
proposal is the possible cost to the States. I need to feel
more comfortable about that, but the logic of it to me is
perfectly feasible.
The other thing I keep hearing a lot about is how much
genius was invested in those that wrote the Constitution, and I
have great admiration for the authors. But, you know, without
the Bill of Rights, the first ten Amendments, the Constitution
would have been roundly criticized. And so to think that we
have to approach this with so much caution, about changing the
Constitution, I do not think we need to be overly cautious
about that. The requirement of approval by three-quarters of
the States is a pretty daunting challenge for us to overcome.
So if I can, Chairman Feingold, I would like to yield the
rest of my time to Jerry Nadler.
Chairman Feingold. Mr. Nadler.
STATEMENT OF HON. JERROLD NADLER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF NEW YORK
Representative Nadler. Thank you, Mr. Chairman. I will not
use the full 5 minutes. This is a timely hearing, and the
issues we are going to examine are of the utmost importance. In
recent months, questions have been raised once again--this
happens periodically in our history--as to whether vacancies in
the Senate should be filled by election rather than by
gubernatorial appointment. The Constitution currently provides
that States may choose whether to fill a vacancy by direct
election or by appointment. Most States, as noted, have chosen
the latter, but some have chosen the former. It is important
that we consider whether there should be a uniform national
rule to fill such vacancies as there is with vacancies in the
House, or whether it would be better to allow the people of
each State to decide for them how it should be done. I think we
need to answer that question first.
Having said that, my preference would always be for
elections, but I have a couple of questions about this
situation.
Number one, if we were to go to a system of direct
elections within some reasonable period--180 days or whatever--
that would put a premium on immense amounts of funding without
the time for fundraising and might tend to make the Senate,
even more than it is already, a body of millionaires and
celebrities and might tend to say that most people could not
run, and that is one consideration that we would have to think
about.
Second is the question that we are going to have to address
with respect to the House, and that is the question of what
happens in, God forbid, the event of a terrorist attack where
there are mass casualties. How do you reconstitute the House
and the Senate quickly in the event of that kind of an
emergency? The Senate can be reconstituted quickly now. The
House cannot. That is something that we have to address and,
with this amendment, it will make that situation impossible in
the Senate as it is now in the House. And how could we address
that?
Those two questions, I think, have to be considered before
we can come to a conclusion on the proposal before us. So I
appreciate the Chairman for calling this hearing. I think we
ought to consider these questions carefully, and I look forward
to the testimony.
I thank you and I yield back.
Chairman Feingold. Thank you, Mr. Nadler.
Let me now turn to the Ranking Member of the Subcommittee,
Mr. Sensenbrenner.
STATEMENT OF HON. F. JAMES SENSENBRENNER, JR., A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF WISCONSIN
Mr. Sensenbrenner. Thank you very much, Mr. Chairman. I
think we ought to start out by saying that this hearing is not
called to improve upon James Madison's prose. He was not the
author of the Seventeenth Amendment. He was long gone and
immortalized by the time there was enough support to pass a
constitutional amendment to provide for the direction election
of Senators.
Currently, the Constitution's Seventeenth Amendment
provides for the popular election of Senators, but it provides
an exception in which States can allow Governors to appoint
Senators to fill vacancies until a special election is held. As
we have seen recently, such an appointment process is not only
undemocratic, but it is prone to abuse.
The time has come for Congress to pass an amendment to the
Constitution that would require all Senate vacancies to be
filled by special election. I am grateful to Congressman Dreier
and my Wisconsin colleague on the other side of the Capitol,
Senator Feingold, who have introduced such an amendment, which
we will consider today. I am an original cosponsor of the
amendment.
The amendment would correct a constitutional anomaly that
has too often been overlooked. When the Senate was first
created, Senators were elected by State legislatures and not by
the people. Because State legislatures were often in session
only a few months a year, the original Senate provision of the
Constitution included a means of replacing Senators when the
legislatures were not in session. The mechanism was the
temporary appointment by Governors of replacement Senators.
Then came a series of notorious instances of corrupt deals
between the State legislators and those whom they selected as
Senators. As the Senate Historical Office points out,
``Intimidation and bribery marked some of the States' selection
of Senators. Nine bribery cases were brought before the Senate
between 1866 and 1906.''
The result was the passage of the Seventeenth Amendment in
1913, which provided for the popular election of Senators.
However, in an effort to change as little of the original
constitutional language as possible, the sponsors of the
Seventeenth Amendment simply carried over the State Governor's
appointment authority in the case of vacancies that was
contained in the original Article I, Section 3. They did so
with little debate, even though the removal of State
legislatures from the election process rendered the original
rationale for allowing temporary appointments obsolete.
Indeed, the only direct mention of the ``vacancies''
provision of the Seventeenth Amendment during congressional
debate on that amendment in both the Senate and the House was
made by Congressmen Mann and Rucker. Their remarks are
exceedingly short, focusing mainly on grammatical points, and
they do not include reference to any policy rationale behind
the decision to retain the provision that allows Governors to
appoint replacement Senators. That is not surprising, as there
remained little policy rationale for those provisions.
Consequently, it is clear from the historical record that
the debate over the Seventeenth Amendment focused entirely on
the policy of requiring the direct election of Senators, and
not at all on the ability of Governors to appoint people to
fill Senate vacancies.
Today, however, with the recent example of the former
Democratic Governor of Illinois and his appointee, Congress can
no longer ignore this constitutional anomaly. It is now clear
that the gubernatorial appointment provision can be subject to
abuse as well, and it is time for Congress to belatedly address
this issue.
My own State of Wisconsin recognized the importance of
codifying elections as an essential element of Senate
membership the very same year the Seventeenth Amendment was
ratified. In 1913, Wisconsin passed a law requiring all Senate
seats to be filled by special election, and on an expedited
basis. That provision has been successfully administered three
times since then: in 1918, following the death in a hunting
accident of Senator Paul Husting; in 1925, following the death
of Senator Robert La Follette, Sr.; and in 1957, following the
death of Joseph McCarthy. The amendment we consider today would
allow the rest of the country, however belatedly, to consider
amending our shared founding document to fully enshrine
elections as a prerequisite for serving the people in our
democracy.
I look forward to hearing from all the witnesses today, and
I would like to extend a special welcome to Kevin Kennedy of
the Government Accountability Board of Wisconsin.
I thank the Chair for yielding.
Chairman Feingold. I thank you, Congressman Sensenbrenner,
for your enthusiastic support, and I also want to welcome Mr.
Kennedy particularly. We go back a long way, and we will hear
from him later.
Now we will go to the first panel of witnesses. Our first
witness this morning is the Honorable Mark Begich of Alaska,
who was elected to the U.S. Senate in 2008. Senator Begich was
a member of the Anchorage Assembly for 10 years and served as
the mayor of Anchorage from 2003 until his election to the
Senate. He has also served on the University of Alaska Board of
Regents, the Alaska Student Loan Corporation, and the Alaska
Commission on Postsecondary Education. Senator Begich was the
first Member of Congress to contact me after I announced my
intention to introduce the Senate vacancies amendment, and I am
proud to have him as a cosponsor of the amendment.
Thank you for being here, Senator, and you may proceed.
STATEMENT OF HON. MARK BEGICH, A UNITED STATES SENATOR FROM THE
STATE OF ALASKA
Senator Begich. Thank you very much, Chairman Feingold and
Chairman Conyers and other members here of the Committees, and
thank you for the opportunity to testify today. As mentioned, I
am from Alaska, the newly elected Senator from Alaska.
I am honored to be an original cosponsor of Senate Joint
Resolution 7, along with Senator McCain. When Senator Feingold
proposed the constitutional amendment requiring that States
hold special elections to fill vacancies, I was happy to agree
to cosponsor.
I did so for two reasons. The first is that my constituents
feel very strongly about this issue. Just 5 years ago, they
voted overwhelmingly to require a special election in the case
of a vacancy in Alaska's U.S. Senate seats. That vote, in
response to a citizen-run initiative, was nearly 56 percent in
favor.
In Alaska, that would be considered a landslide. In my own
election as mayor of Anchorage in 2003, I won my election by 18
votes over the threshold necessary to avoid a run-off election.
So, again, 56 percent is considered a landslide. And I won this
Senate seat by a little over 1 percent out of the more than
327,000 votes.
The second reason I support this amendment is more of a
personal one. Some members of these subcommittees may know that
my father served in the U.S. Congress in Alaska's at-large
seat. In October 1972, Congressman Nick Begich was campaigning
for re-election to his second term in the House. His small
Cessna 310 left Anchorage on a stormy night bound for our State
capital of Juneau. It never arrived.
Also lost was House Majority Leader Hale Boggs of
Louisiana, who was campaigning for my father. My father's aide
and pilot also perished in this plane. I was 10 years old. My
mother was left, along with me, with my five brothers and
sisters.
Besides the terrible loss for our family, I recall the
tragedy today for what happened next. As the largest aviation
search in Alaska's history up to that time continued, the
already scheduled State general election was held 3 weeks
later. Despite his disappearance, Congressman Begich was re-
elected with better than 56 percent of the vote.
In late December, my father was officially declared
deceased, and a special election was set for March 1973. The
two political parties nominated their candidates, an
abbreviated campaign took place, and Don Young was elected
Alaska's sole United States Congressman, a seat he has held
since then.
Throughout this ordeal, Alaskans were officially without
representation in the House of Representatives. But my
recollection--and my review of news reports from that era--show
no outcry for the appointment of a new Congressman.
Alaskans then, like Alaskans now, feel strongly that their
elected representatives in the Federal Government should be
exactly that--elected. The residents of my State believe that
they alone have the power to select those representing them in
the U.S. House and Senate.
I know a number of arguments will be advanced in opposition
to this proposed amendment to our Constitution: that a special
election will cost much more or that a State's citizens will be
disenfranchised during the vacancy.
When balancing the relatively modest cost of a special
election against one of the most fundamental principles of our
democracy--the election of representatives of the people--I
believe the expense is justified.
And as recent examples have shown us with drawn-out and
controversial appointment scenarios, I believe the time
required to mount a special election is far more preferable to
a gubernatorial selection.
Mr. Chairman, to me and my constituents, this issue is a
simple one: United States Senators should be elected by the
voters of their States.
I want to thank you for the opportunity to testify and give
my personal story. Thank you.
[The prepared statement of Senator Begich appears as a
submission for the record.]
Chairman Feingold. Thank you so much, Senator. It is very
good to have you before this hearing.
Our next witness this morning is the Honorable David
Dreier, who has served California's 26th Congressional District
in the U.S. House of Representatives since he was first elected
in 1980. A graduate of Claremont McKenna College,
Representative Dreier became the youngest Chairman of the House
Rules Committee and the first from California 10 years ago. Not
long after, Representative Dreier was selected to chair the
State's Republican congressional delegation.
I want to note that Mr. Dreier is in many ways responsible
both for the momentum on this issue and for this joint hearing
because he took the initiative and reached out to me several
weeks ago to tell me that he wanted to introduce the House
version of the constitutional amendment. So I thank you for
that, Congressman, and I welcome you, and you may proceed.
STATEMENT OF HON. DAVID DREIER, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF CALIFORNIA
Representative Dreier. Thank you very much, Mr. Chairman
and my colleagues in both the House and Senate. I know that
some will look at this as just one of those typical Feingold-
Dreier-Conyers-Sensenbrenner initiatives that are a dime a
dozen. But the fact of the matter is this is a very, very
important issue, and it is one that I do believe gets to the
point that has been raised by almost everyone here, and that
is, we need to be very careful when we amend the Constitution.
I have a somewhat unique position within my party. I have
joined John Conyers probably more than I have Jim Sensenbrenner
on the issue of amending the Constitution. That is, I have
opposed balanced budget amendments to the Constitution. I have
opposed the three-fifth requirement for increasing taxes as an
amendment to the Constitution. I have opposed the flag burning
amendment to the Constitution. I have opposed defining marriage
in the Constitution. I have opposed the term limits requirement
in the Constitution. I have always argued that we should only
amend the Constitution if we are expanding the rights of the
American people. And, frankly, the only other ones that I have
supported are lifting the term limits on the President and
allowing Jennifer Granholm and Arnold Schwarzenegger the
opportunity to run for President of the United States, because
I think there are 12 million Americans right now who we are not
giving the opportunity to decide whether they could potentially
serve as President of the United States because they were born
outside of the United States.
So I think that that really should be the gauge that we
would use, and it gets back to, as my friend John Conyers said,
the Bill of Rights and the vision of James Madison. And that is
why, again, getting to the point raised by Senator Kaufman, I
really see what we are doing here as a perfecting amendment.
To the concern that was raised by my friend Jerry Nadler,
in my reading of the Constitution, it is my understanding that
being a millionaire and a celebrity is a prerequisite for
service in the U.S. Senate. So I really do not see that as a
major concern. And Russ Feingold and Tom Coburn are great
examples of that. I have to say that.
Let me just say, Mr. Chairman, if there was ever a time
when the American people needed a clear, undiluted voice in
Washington, it is right now. Working families are facing
tremendous economic difficulties, and we remain engaged in
conflicts across the globe. And yet, the residents, as you
said, Chairman Feingold, of those four States haven't elected
their newest Senators. Those same Senators are now voting on
the critical economic issues of our time. Some of my colleagues
and I, as has been stated, believe that this is, in fact,
undemocratic. The people of those States, and every State, do
deserve a voice in their representation. That is why we have
proposed this constitutional amendment to require all U.S.
Senators be duly elected by the people they represent.
We have not proposed this amendment as a reaction to the
people chosen to fill those seats. As you said, Mr. Chairman,
we have proposed this amendment because of the people they
represent. They are understandably outraged at some of the
gamesmanship that surrounded the most recent Senate
appointments. We don't need to recount them here, but suffice
it to say, they have brought back to the forefront of American
discussion the need for popular elections when deciding our
representatives in both bodies of Congress.
Personally, I believe the amendment we are proposing, as I
said, is a ``perfecting'' amendment to the 17th, and Jim
Sensenbrenner hit the nail on the head. We are not tampering
with James Madison's vision. We are tampering with those guys
who in the early part of the 20th century were battling over
this thing. After years of back-room deals, this amendment
reformed the Senate selection process by instituting direct
elections. However, it left to the States the authority to
decide what to do when an out-of-cycle vacancy came up. Most
States chose to allow their Governors to make appointments. A
few, including yours, Mr. Chairman and Mr. Sensenbrenner, chose
to leave it to the people, and now Senator Begich's, calling
for special elections. While our amendment does call for all
Senators to be elected, it does not dictate the terms of those
elections, leaving that to the States. I view this proposal as
the fulfillment of the reform effort that began with the 17th
Amendment nearly a century ago.
Now, some argue that special elections are too expensive,
as has been raised here, and that is what Chairman Conyers
raised as his concern. This is an argument that I have, in
fact, heard before and one does have some resonance at a time
when State budgets are stretched very thin. However, I do not
believe budget constraints nullify the imperative for electing
our leaders.
Now, there are others--and I read that piece from our
friend George Will in the Post the other day. Some have argued
that this amendment only weakens the pillars of federalism that
the Founders carefully constructed. I spoke to Mr. Will about
this the other day, and in this piece in the Post, he referred
to the fact that our Constitution created distinct electors for
the three elected bodies of the Federal Government--as we all
know, the Electoral College, the State legislatures, and then
we the body of the people, those of us in the House of
Representatives. And the President was to be elected, as I
said, by the Electoral College, the Senate by the legislatures,
and the House directly by the people.
With this perspective in mind, the 17th Amendment would
appear to have undermined the Founders' intentions, and today's
proposed amendment would undermine them further. I respect Mr.
Will's point of view. I, too, look to the Founders' original
intentions and do not support amending the Constitution
lightly, as I said. But I believe in addressing this matter we
must look at the history of our electoral processes--not just
how they were envisaged at our Nation's founding, but how they
have been conducted in practice.
From a purely academic perspective, it is interesting to
consider whether the authors of the 17th Amendment could have
plotted a reform course that was truer to the Founders'
intentions. But the reality today is that we now have a nearly
100-year tradition of directly electing our Senators, nearly
half the life of our country. This practice has become an
integral part of American democracy. Trying to undo a century
of our history simply is not a viable option. The American
people elect their Senators and would not accept any other
method. Yet the current system does have this loophole. The
large number of sudden vacancies in the Senate this year has
made the consequences of this loophole very, very clear, as you
said, Mr. Chairman, with 12 percent of the people having their
newest Senators not having been elected. Today's proposed
amendment I believe will address this challenge.
A few years ago, the issue of preserving the direct
election of our representatives was raised within the context
of a continuity plan for Congress in the event of a catastrophe
and the deaths of more than 100 House Members. My colleague Mr.
Sensenbrenner and I argued vigorously for the direct election
of all House members, as the Constitution mandates, under any
circumstance. We were joined by an overwhelmingly bipartisan
majority in our effort to ensure that we did not tamper with
the Constitution on that, undermining the opportunity for
elections to be held. At the time, we argued that holding and
participating in elections, even in the event of a catastrophe,
was an absolutely essential part of our democracy to ensure
that it remains vital and functioning.
Senate vacancies are no less significant than vacancies in
the House. Yes, they should be filled as quickly and as fairly
as possible. But most important, Mr. Chairman, they should be
filled by the people.
Thank you very much.
[The prepared statement of Representative Dreier appears as
a submission for the record.]
Chairman Feingold. Thank you, Representative Dreier, for
your excellent testimony.
Also joining us this morning is Representative Aaron
Schock. Congressman Schock represents Illinois' 18th District.
A graduate of Bradley University, he is a former Illinois State
Representative. He joined the House in January of this year,
becoming the youngest Member of the House of Representatives
and the first born in the 1980's.
Congratulations, Mr. Schock, and welcome. You may proceed.
STATEMENT OF HON. AARON SCHOCK, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF ILLINOIS
Representative Schock. Thank you, Mr. Chairman, thank you,
Chairman Conyers, and thank you to the members of the
distinguished panel for inviting me to be here today.
I have a simple alternative to the amendment that is being
offered today. I introduced it several weeks ago. It is the
Ethical and Legal Elections for Congressional Transitions Act,
or, simply put, the ELECT Act, which would get us to where we
all want to go much quicker, cleaner, and more efficiently.
Simply put, it would require that all State voters be given the
opportunity for a special election within 90 days of a vacancy
being created for their U.S. Senate seat.
To determine this time period, we looked around the country
at vacancies, when congressional vacancies occur, and 90 days
was the greatest latitude given for States to be able to call
for a special election. And so we afforded that same
opportunity for the vacancies in a U.S. Senate seat, allowing
for the potential marrying of a special elect with statewide
referendum or local municipal elections to reduce the cost.
The second issue that has been raised is the cost to these
States. First, I would like to point out the fact that in my
home State of Illinois, it was precisely this issue that got us
into the problem we had when, in fact, an elected official
tried to place a value on a U.S. Senate seat--in his words,
``monetize the position.'' I would submit to you that there is
no value that can be placed on good government or having the
will of the people in terms of who they wish to represent them
here in the United States Senate.
To that point, our bill allows for cost-sharing, half to be
borne by the Federal Government, the other half by the State
government, recognizing that both benefit from a clear and open
election.
Second, it would still allow us to work within the confine
of the 17th Amendment, which means that if some national crisis
occurs or it is the belief of the Governor at that time that
the State would be best served to have a representative, he or
she may make that appointment during that 90-day window of
time, but that individual would have to stand for election
before the voters.
Regardless of whether an appointment is made or not, it is
very clear and history has shown that those appointments made
by the Senators, regardless of party or regardless of State,
are not in tune with the wishes of the voters. In fact, less
than a third of those U.S. Senators who are appointed by
gubernatorial appointments win re-election during their first
time standing before the voters. So, clearly, the will of the
voters is not being done by the gubernatorial appointments,
and, thus, action is necessary in either this form or the
amendment being offered.
Simply put, we have a shared goal. We believe, all of us, I
think, that there is a problem and that at the end of the day
the power should not be vested with the legislatures or with
the Governors, but ultimately with the voters. There is no one
better qualified to choose his or her representative than the
electorate of each State, and the ELECT Act is easier to pass,
quicker to enact, does not amend our national charter, and
still allows for immediate vacancies when a national crisis
occurs.
So I wish to again thank you for the opportunity to address
you this morning, and I would be happy to answer any questions
my colleagues would have. Thank you.
[The prepared statement of Mr. Schock appears as a
submission for the record.]
Chairman Feingold. Thank you, Representative.
As is our practice, we will not have questions for this
panel, but I want to thank all of you for your great testimony.
Thanks for being here. You are excused, and we will bring up
the next panel.
Chairman Feingold. All right. Please stand to be sworn. Do
you swear or affirm that the testimony you are about to give
before the Committee will be the truth, the whole truth, and
nothing but the truth, so help you God?
Mr. Neale. I do.
Mr. Edgar. I do.
Mr. Kennedy. I do.
Mr. Spalding. I do.
Mr. Segal. I do.
Mr. Amar. I do.
Ms. Karlan. I do.
Chairman Feingold. Thank you. We will begin with our second
panel now, and our first witness will be Thomas H. Neale,
Specialist in American National Government at the Congressional
Research Service. Mr. Neale's work focuses, among other things,
on U.S. elections and U.S. constitutional history and theory.
Mr. Neale has been a featured lecturer on U.S. elections at the
U.S. Embassy in Austria, the State Department's Foreign Press
Center in Washington, and for the House of Representatives'
Democracy Assistance Commission. He is a graduate of Georgetown
University School of Foreign Service.
Before you begin, Mr. Neale, I want to take this
opportunity to thank you and all of your colleagues at CRS,
especially Jennifer Manning and Carla Warner for the work you
have done over the past several weeks to prepare excellent
research materials on the history of temporary appointments,
along with your updated report in filling U.S. Senate
vacancies. Without objection, all these materials will be
placed in the record of this hearing.
Mr. Neale, thank you for being here, and I will ask you and
all of our witnesses to limit your presentations to 5 minutes.
Of course, your full statement will be placed in the record.
You may proceed.
STATEMENT OF THOMAS H. NEALE, SPECIALIST IN AMERICAN NATIONAL
GOVERNMENT, CONGRESSIONAL RESEARCH SERVICE, WASHINGTON, D.C.
Mr. Neale. Thank you, sir. Chairman Conyers, Chairman
Feingold, my name is Thomas Neale, and I am with the
Congressional Research Service, the Government and Finance
Division. I have prepared testimony in the form of my report,
``Filling Senate Vacancies: Perspectives and Contemporary
Developments,'' which is available for inclusion in the record.
The Presidential election of 2008 resulted, directly and
indirectly, in the highest number of Senate vacancies within a
short period in more than 60 years. The election of incumbent
Senators as President and Vice President, combined with
subsequent Cabinet appointments, resulted in four Senate
vacancies, in Colorado, Delaware, Illinois, and New York--all
States in which the Governor is empowered to appoint a
temporary replacement.
Chairman Feingold. Just pull that microphone closer to
yourself, if you would.
Mr. Neale. Protracted controversies surrounding the
replacement process in two of these States have drawn scrutiny
and criticism of not only these particular instances but of the
appointment process itself.
While the process of appointing temporary vacancies is
under examination currently, the practice itself is as old as
the Constitution, having been incorporated in the original
document by the Founders at the Constitutional Convention.
The practice, as was noted earlier, was revised by the 17th
Amendment, which became effective in 1913. The amendment's
primary purpose was to substitute direct popular election of
Senators for the original provision of election by State
legislatures, but it also changed the requirements for filling
Senate vacancies, by specifically directing the State Governors
to ``issue writs of election to fill such vacancies.'' At the
same time, it preserved the appointment power by authorizing
State legislatures to empower the Governor, the executive
thereof, ``to make temporary appointments until the people fill
the vacancies by election as the legislature may direct.'' The
record of congressional deliberations at that time shows that
the appointments provision was not controversial but, rather,
the primary conflict centered on a proposal that would have
eliminated the Article I Section 4 power of Congress to
override State provisions regarding the ``Times, Places, and
Manner of holding Elections for Senators.''
Since the amendment was ratified, the appointment by
Governors of interim Senators has remained the predominant
practice in the States, with the appointees serving until a
special election is held. State provisions differ as to when
the special election should be scheduled, but appointed
Senators generally serve well under 2 years, and their terms
usually expire immediately upon certification of the special
election results.
Most State Governors have broad authority to fill Senate
vacancies, provided the appointee meets constitutional
requirements for the office, but here again, variations exist
in State practice. Four States seek to guarantee that a
departed incumbent will be replaced by one of the same party,
thus respecting the public's choice in the previous election.
Also, Arizona requires appointed Senators to be of the same
political party as the prior incumbent, while Hawaii, Utah, and
Wyoming require the Governor to choose a temporary Senator from
a list of three names submitted by the previous incumbent's
party apparatus. It should be noted that some legal
commentators have questioned these provisions, suggesting that
they place additional qualifications beyond the constitutional
ones of age, citizenship, and State residence at the time of
election.
Over the 96 years since the 17th Amendment was ratified,
184 Senate vacancies have been filled by the appointment of 181
individuals--and, yes, three individuals have been appointed
twice to fill Senate vacancies. This process has generated
relatively few controversies prior to the present. Most of
these centered on occasions when the incumbent State Governor
resigned after a Senate vacancy occurred and was appointed to
fill the vacancy by his successor. In almost all such
instances, the Governor-turned-appointed-Senator was defeated
in the subsequent special election.
At present, three States--Massachusetts, Oregon, and
Wisconsin--do not permit any gubernatorial appointments,
requiring special elections to fill Senate vacancies. A fourth,
Oklahoma, allows the Governor to appoint only the winner of a
special election, and then only to fill out the expiring term,
after the election. A fifth State, Alaska, has passed both
legislation and a referendum providing for special elections,
but the statute retained the Governor's power to appoint in the
interim, while the referendum eliminated it entirely. Given the
conflict, the official reviser's notes cast doubt on the
Governor's appointment authority in future instances.
As the controversy surrounding gubernatorial appointments
has grown since the 2008 election, legislation that would
curtail or eliminate the Governor's appointment power has been
introduced in the current sessions of no fewer than eight State
legislatures, including Colorado, Connecticut, Illinois, Iowa,
Maryland, Minnesota, New York, and Vermont.
A number of factors may suggest themselves to Congress as
the Committees consider Senate Joint Resolution 7 and House
Joint Resolution 21. These may include, but will almost
certainly not be limited to, arguments in favor of a more
democratic means of filling vacancies compared with those of
preserving a traditional State option; questions of the costs
associated with special Senate elections, which would be borne
by State and local governments; and, in the post-9/11 era, the
comparative advisability of appointments as opposed to special
elections in the event of an attack resulting in the death or
incapacity of a large number of Senators.
I thank the chairmen and members of these committees for
their attention, and I would be happy to respond to your
questions.
[The prepared statement of Mr. Neale appears as a
submission for the record.]
Chairman Feingold. Thank you so much, Mr. Neale.
Our next witness is Bob Edgar, the President and CEO of the
nonpartisan, nonprofit citizens lobby, Common Cause. Mr. Edgar
served six terms in the House representing the 7th
Congressional District of Pennsylvania until 1986. More
recently, he served as General Secretary of the National
Council of the Churches of Christ in the USA before joining
Common Cause in 2007. He holds a Master of Divinity degree from
the Theological School of Drew University and is the recipient
of five honorary doctoral degrees.
Mr. Edgar, we very much appreciate your presence here
today, and you may proceed.
STATEMENT OF BOB EDGAR, PRESIDENT AND CHIEF EXECUTIVE OFFICER,
COMMON CAUSE, WASHINGTON, D.C.
Mr. Edgar. Thank you, Mr. Chairman. I have five honorary
doctorate degrees but only four arrests for civil disobedience,
so I am looking for one other opportunity.
Mr. Chairman, it is a pleasure to be here today, and I was
particularly moved by two of the congressional speakers who
spoke on the first panel.
First, Congressman Dreier and I have a lot of things in
common. I was President of the Claremont School of Theology
across the street from the school he graduated in, and for 10
years, he was my Congressman. And we differed on almost every
issue you could imagine, and we agree on this issue, so I would
like to associate myself with his remarks.
Also, you had the youngest Congressman here, and when I got
elected by accident in 1974, there were six Congressmen younger
than I was, and I was 31 at the time. So we have a tradition of
people in certain times in history stepping forward and running
for public office and being able at a variety of ages to make a
real contribution. And I appreciated his comments.
Dr. Martin Luther King said, ``We will have to repent in
this generation not merely for the hateful words and actions of
bad people, but for the appalling silence of good people.'' I
am reminded often that we have to stand up and speak out when
things seem to be broken, and I think the systems of selection
of Senators in a few States have been proven to be broken over
the past couple months. And I sit here before you strongly
supporting S.J. Resolution 7 and House Joint Resolution 21
proposing the constitutional amendment. We urge Congress to
pass this proposed constitutional amendment and send it to the
States for ratification.
I am currently President of Common Cause, founded by John
Gardner some 39 years ago as the people's lobby. We have about
400,000 members and growing, and we are growing with
Republicans, Independents, and Democrats who want Government to
work. And they anticipate that their elected officials in both
the House and the Senate would be elected by the people and
serve in that office as public servants.
I think too often over the period of the last few years we
have seen elected officials who often are controlled more by
special interests than by the public's interests. And I believe
that we need to reform a number of measures across the board to
get our election process straight, to get money moderated in
its influence in Congress, and to elect public officials who
serve that broader public interest.
We believe the Constitution should be amended rarely and
with great care, but election of representatives in Congress is
one of those issues that crosses that threshold.
We all know this issue has arisen because of the
unfortunate experiences in recent months as four Senate seats
became vacant subsequent to President Obama's election. As an
article in the December 10, 2008, New York Times noted, ``Given
the prestige of the and of the Senate seat and the magnetic
allure of politicians, it is perhaps not surprising that when
these vacancies come up, the process of awarding the office has
become fraught with malfeasance and political peril.''
In many State governments and too often in Congress itself,
there is a prevalent attitude that you must pay to play. Common
Cause strongly supports this action and strongly works to try
to get money's influence out of the political process.
Democracy is at its best when it is open and transparent.
We believe that setting a special election within 3 or 4 months
is reasonable, and we do not believe that State or Federal
Government will suffer unduly from the lack of a Senator for a
period of time.
Let me just close by answering one of Mr. Nadler's
questions about the cost. Previous speakers have talked about
the fact that there could be shared costs, but I would urge
both House and Senate Members to take a look at an effort to
revisit the issue of public financing of campaigns. Shortly, we
will see on the Senate and House a reintroduction of a public
financing measure, and it has been renovated over the past year
given the experiences in Connecticut, Arizona, and Maine, and
given the Obama Presidential campaign with its ability to raise
some small contributions. I hope both the House and Senate will
take a look at that. I think there are provisions of public
financing that could, in fact, be in place and provide an
answer to the question of how do we pay for these elections.
I close by simply urging both the House and Senate to pass
this constitutional amendment. Let us get on with the process
of having government for the people and by the people.
Thank you.
[The prepared statement of Mr. Edgar appears as a
submission for the record.]
Chairman Feingold. Thank you, Mr. Edgar. I appreciate your
comments on public financing as well.
Our next witness is Kevin J. Kennedy, Director and General
Counsel for the Wisconsin Government Accountability Board and
former Executive Director and Legal Counsel for the Wisconsin
State Elections Board. He is a former President of the National
Association of State Election Directors. A graduate of the
University of Wisconsin Law School, Mr. Kennedy worked in
private practice and served as assistant district attorney in
Wisconsin before joining the Elections Board in 1979. He has
also served as co-chair of the National Task Force on Election
Reform. Mr. Kennedy and I have known each other for longer than
either of us may care to remember, and he did preside over an
election in 1982 where a 29-year-old kid was trying to run for
the State Senate and ended up winning by 31 votes out of
47,000. That would be me. He was in charge of our elections in
Wisconsin at that time as well.
So it is good to see you again, Kevin. Thank you for being
here today. Please proceed.
STATEMENT OF KEVIN J. KENNEDY, DIRECTOR AND GENERAL COUNSEL,
WISCONSIN GOVERNMENT ACCOUNTABILITY BOARD, MADISON, WISCONSIN
Mr. Kennedy. Thank you, Chairman Feingold, Chairman
Conyers--I believe I was a kid back then, too; I appreciate
that--Representative Sensenbrenner. I also want to just
acknowledge the fact that it is great to be here in front of
two of Wisconsin's dedicated public servants. You make
Wisconsin look well in your service in Congress, and the
citizens back home and your public officials appreciate that.
Chairman Conyers, I had the honor of testifying once before in
the House, and I can appreciate the more comfortable atmosphere
that is there at times.
I want to thank you for the opportunity to provide
information to the Subcommittees on Wisconsin's procedures for
conducting special elections to fill vacancies in the office of
United States Senator. It is a special honor to be here.
Wisconsin has a long history of relying on special elections to
fill vacancies in the office of United States Senator dating
back to the ratification of the 17th Amendment to the
Constitution.
While it has been 40 years since our last special election
to fill a vacancy in the office of the U.S. Senate, in that 40
years since that time, we have actually filled four House
vacancies. And in those cases, we always managed, with the
flexibility in Wisconsin's statute, to coordinate those
elections with regularly scheduled elections, thereby saving
significant costs in the administration of the election
process.
Let me just briefly describe how the special election works
in Wisconsin. There is a vacancy, either by death, resignation,
or some other cause. The Governor issues an order calling the
election. There is no real deadline for the Governor to issue
that call. There will be practical considerations. There will
also be some political considerations in that order. Generally,
our staff will work with the Governor's staff to work through
timing considerations and to deal with the flexibility that our
law provides in terms of cost savings.
Once the Governor issues that order, that date is set
between 9 and 11 weeks from the time of the order that we are
going to have that special election. That date determines our
primary election, which is 4 weeks before the special, if it is
required. The deadline for getting nomination papers submitted
to our office is 4 weeks before the date of the primary. That
leaves a very short period for circulating nomination papers,
but it has worked well for a large number of special elections.
We use the same procedure for vacancies in our State
legislature as well.
Thirteen days after the special election, the counties have
to have their official canvass results to us. They often have
it there sooner. Within 5 days, we have to certify those
results and prepare the Certification of Election for the
Governor's signature. So things move very quickly in Wisconsin.
There are some special timing considerations that come up
in even-numbered years with our regularly scheduled election in
the fall. In those periods of time, again, the Governor has
some more constraints, but we, again, look to try and schedule
an election at the same time as the regular election if a
vacancy occurs.
Costs have been an issue that has been identified, and I
think it is important for the Committee to understand what the
elements are when we talk about costs. I provided you with a
line-item listing that suggests a stand-alone special election
in Wisconsin would cost close to $3 million, and this is an
investment that we make in democracy in Wisconsin. But, again,
we have a certain level of flexibility.
One of the things that is not included in that is the
regular staffing that goes into running our office, running our
county offices, and in Wisconsin, we run our elections at the
municipal level. So our municipal clerks are the ones who are
out there handling the absentee ballots, the voter
registration, equipping the polling places, recruiting and
training the poll workers.
If we hold a special election at the same time as the
regularly scheduled election, most of those costs are shifted
from direct costs to just incremental changes. Only the Notice
of Election is really the stand-alone cost. The other costs
that I have identified, that is the cost of running an election
just about any State you look at--cost for publishing notices.
Wisconsin is a paper ballot-based State, so if we ran an
election, we would expect to print 2.5 million ballots for a
special election for the U.S. Senate. That cost would be there
in conjunction with other costs.
We now have--one of the things we did not have in 1957--the
costs of programming electronic voting equipment so that people
with disabilities can participate in the electoral process.
Again, Wisconsin uses optical scan voting, so we program that
equipment.
Absentee postage, a cost borne by municipalities, is a big
factor. The biggest single cost factor is what we pay our poll
workers. Popular belief is that they work for free. Given the
commitment that they bring, maybe they do. But we do recognize
them with a small amount of money for that.
Incidental costs are the supplies for poll lists, various
forms that have to be filled out.
Those are costs that I think Wisconsin has committed itself
to. We have had a long history of special elections not only
with our U.S. Senate vacancies that Congressman Sensenbrenner
identified, but also our four House vacancies. We have had a
number of vacancies in the legislature sometimes as legislators
have moved on to higher office.
Elections are the cornerstone of our democracy. Wisconsin
has committed to filling vacancies since 1913. This enables
Wisconsin voters to actively participate in determining their
Federal representative in the United States Senate rather than
delegating the selection to the Governor, even for a short
period of time. It comes at a price, but the conduct of fair,
transparent elections provides the foundation for public
confidence in their elected representatives.
Thank you for allowing me to share my thoughts with you. I
would be happy to answer questions later.
[The prepared statement of Mr. Kennedy appears as a
submission for the record.]
Chairman Feingold. Thank you, Kevin.
Our next witness will be Dr. Matthew Spalding, the Director
of the B. Kenneth Simon Center for American Studies at the
Heritage Foundation. Dr. Spalding has a Ph.D. in Government
from Claremont Graduate School where his work concentrated in
government, political philosophy, and early American political
thought. He has written and edited books on political history
and the Constitution.
We welcome you, Dr. Spalding. The floor is yours.
STATEMENT OF MATTHEW SPALDING, PH.D., DIRECTOR, B. KENNETH
SIMON CENTER FOR AMERICAN STUDIES, THE HERITAGE FOUNDATION,
WASHINGTON, D.C.
Mr. Spalding. Thank you, Chairman Feingold and Chairman
Conyers, and everyone on the Subcommittees, thank you for
taking constitutional questions seriously.
I would actually like to make three arguments against the
proposed amendment this morning, and I will right to those.
The first is based on the nature of the United States
Senate and its unique role representing States in our
constitutional structure. Based on equal representation in all
the States, as guaranteed in Article V, the Senate--with its
longer terms of office and larger and distinct State
constituency--was to be more stable, deliberative, and oriented
toward long-term State and national concerns. The 17th
Amendment did not change that. It is because of the nature of
the Senate that the chamber is given its unique
responsibilities having to do with, among other things,
executive appointments and treaties with other countries.
Therefore, it is in the interest of individual States--and,
given the responsibilities of the Senate, in the interest of
the Nation--that ongoing representation in the Senate be
maintained.
Without the possibility of temporary appointments, the
Senate could be prevented by vacancies from being able to
conduct its business in a timely fashion, subject to
fluctuating numbers and representation. The proposed amendment
leaves States unrepresented--or at least underrepresented--
potentially at times of great significance to that State, as
well as--considering the Senate's role in confirmations,
treaty-making, and the like--the Nation. Several vacancies of
several months, at a time of crisis, could well have a
detrimental effect on the well-being of those States--consider
the economic legislation of late--but also to our national
security.
Second, the proposed amendment is unnecessary. Over the
course of the 40 years between 1866 and 1906, there were nine
cases of bribery concerning the appointment of United States
Senators. Over the course of the 95 years between the passage
of the 17th Amendment and today--during which there have been
184 appointments to fill Senate vacancies--there has been only
one case of a Governor trying to sell a Senate seat. As
appalling as this case clearly appears to be, this is neither a
pattern of corruption nor a crisis of constitutional
proportions. Appointment per se is not corruption.
Third, the proposed amendment undermines rather than
supports core political principles. Temporary gubernatorial
appointment in this case is a perfectly reasonable and
necessary option for the Senate to work in the context of our
democratic system. The current arrangement does not take away
or jeopardizes fundamental voting rights anymore than the
proposed amendment takes away voting rights of the people and
the Senate.
While the proposed amendment seems to advance the principle
of democracy, it would do so at the expense of other
principles, like federalism, self-government, and democratic
constitutionalism. The amount of time considered necessary for
statewide special elections, as we have heard, differs from
State to State, depending on the size, demographics, and other
aspects of individual States. As a result, there is great
variance in current State laws. I see no reason for a uniform
rule.
The question here is not one of democracy versus other
principles. It is a question of weighing the risk associated
with the possibility of a bad appointment, on the one hand, and
accepting that the people of a State are not being fully
represented in the Senate for a period of time, on the other.
Different States have different opinions. This is as it should
be.
In my written testimony, I consider the importance of
constitutional amendments and the historical pattern of
previous amendments. The proposed amendment, in my opinion,
does not rise to that level of serious consideration. This is
not a ``great and extraordinary occasion,'' as it says in the
Federalist Papers. Nor is there an underlying consensus either
about a problem or about a solution to justify pursuing a
constitutional amendment at this time.
Let me add here that while we are moving temporary
gubernatorial appointments and cases of vacancy by legislation,
it is likewise my opinion of that idea it is also clearly
unconstitutional. The appropriate place for such legislation is
in State legislatures, not Congress.
The best mechanism for balancing democratic principles and
representation, and for weighing the risk of a bad appointment
against the temporary loss of representation in the case of
vacancies in the U.S. Senate, is already in place. It is in the
second clause of the 17th Amendment. That clause actually goes
back to a discussion in the Constitutional Convention, and it
was decided at the time it was a necessity, given the nature of
the institution. As such, Congress, in my opinion, should not
proceed to amend the Constitution in this manner.
I thank you for your time this morning and look forward to
taking your questions.
[The prepared statement of Mr. Spalding appears as a
submission for the record.]
Chairman Feingold. Thank you, Dr. Spalding.
The next witness is David Segal, an analyst for the
advocacy group FairVote, who is serving his second term as a
member of the Rhode Island House of Representatives. A graduate
of Columbia University, he served as Minority Leader of the
Providence City Council from 2003 to 2007 and remains the first
and only Green Party member to be elected in Rhode Island.
Mr. Segal, welcome and thank you for joining us.
STATEMENT OF DAVID SEGAL, ANALYST, FAIRVOTE, RHODE ISLAND STATE
REPRESENTATIVE, PROVIDENCE, RHODE ISLAND
Mr. Segal. Thank you, Mr. Chairman. FairVote and I are, of
course, honored to be here before you today to testify in
strong support of the proposal that is before you.
I would like to quickly stress that I speak today on
FairVote's behalf rather than for my constituents or for the
Rhode Island Legislature at large.
FairVote is active at the local level in several States and
has a broad network of State-level partner organizations and
allies. We have followed State legislative attempts to end
senatorial vacancy appointments--some efforts new, others
longer-standing--and will focus our testimony on rebutting the
notion that the vacancy appointment issue, and any problems
arising therefrom, are better resolved via State legislation
than via constitutional amendment. State legislation is
important and, for the moment, necessary, but it is far from
sufficient. Such legislation seems unlikely to yield broad-
based Senate vacancy reform, which is why we so strongly
support the constitutional amendment track.
It has been suggested that passage of the proposal before
you would be an affront to pluralism or federalism, and
FairVote contends that it is not pluralism or federalism as
such that would make it difficult for States to reform Senate
vacancy laws; rather, the major obstacle is the natural
tendency of powerful, self-interested actors to strive to
maintain their authority. We believe that the proposal before
your Committee respects federalism, insofar as it provides
States with wide latitude in determining how best to implement
vacancy elections. And we also note that States, per those
mechanisms set forth by our Nation's Founders, will play a
critical role in the ratification of any constitutional
amendment relative to this matter. Amendment of the
Constitution is not an affront to federalism. It is an exercise
therein.
FairVote has identified nine States in which legislation
requiring U.S. Senate vacancies be filled by special election
has been introduced this year, and we believe this to be a
nearly exhaustive account of such States at this time, though
additional legislation may be introduced in coming weeks and
months.
It is worth noting our initial surprise at the relative
lack of formal consideration of this issue by State
legislatures, despite the prominence in the national discourse
of Senate vacancies, and what appears to be broad popular
support, editorial support from prominent newspapers, and
support by many Government reform groups like FairVote and
Common Cause. Even at this relatively early moment in most
legislative sessions, it is evident that few of the
aforementioned bills stand a chance of passage this year, and
we attribute this state of affairs largely to the
euphemistically awkward, frequently tense, intra- and inter-
party political dynamics endemic to most State governments. The
predicament in Illinois is the most loaded and remains fluid
and unpredictable, but let us consider the various other
scenarios.
First, States in which the legislature is dominated by the
same party as the Governor--especially those with political
dynamics that are relatively stable--are unlikely to perceive
an urgency to act on the Senate vacancy issue without all
States moving forward in concert. The party that rules the
legislature is hesitant to strip authority from a Governor of
the same party, and individual members might fear being
ostracized or other political retribution for participating in
such efforts.
Consider Colorado, where Democrats control the legislature
and the Governor's seat, special election legislation was
introduced by Republican State Senator Michael Kopp, and the
legislation died in committee on a 3-2 party-line vote, with
Democrats openly acknowledging that passage of the legislation
was politically unpalatable because it would appear to be a
demonstration of disapproval of Governor Ritter's recent
appointment of Senator Bennet.
In Maryland, a Democratic Delegate introduced legislation
to require special elections, but only beginning after 2015,
when Democratic Governor Martin O'Malley will certainly have
vacated his office. And this has reduced any sense of urgency
to pass the legislation, and it appears unlikely to move
forward this session.
In New York, Republicans have lined up behind legislation
to require special elections. Democrats control both houses of
the Assembly, and passage of the legislation would no doubt be
seen as a referendum on Governor David Paterson's appointment
of now-Senator Kirsten Gillibrand.
Second, in the remaining States in which power is shared by
Democrats and Republicans, the parties typically have competing
interests that tend to complicate the case for holding vacancy
elections. Legislative chambers might be controlled by
different parties, or a single party might control both
chambers, but not have enough votes to override a likely
gubernatorial veto.
This is true in Vermont, where the Vermont House and Senate
are controlled by Democrats, but Governor Jim Douglas has said
that he thinks the status quo of allowing appointments under
certain circumstances ``is a pretty good system'' and sees no
reason to change it.
Connecticut Democrats control both chambers, but the
Republican Governor's office called the move to end
appointments a ``political maneuver'' and a ``political ploy.''
In Mississippi, legislation to end appointments has died
already in the Democratic-controlled State legislature, despite
controversy there over Governor Barbour's appointment to
replace Trent Lott a couple of years ago.
And in Minnesota, legislation has been introduced to
require specials to fill future vacancies, but in the midst of
a contentious multi-party scrum and expensive recount, it
appears that this legislation will not advance.
Such dynamics appear to confirm the hypothesis that a
constitutional amendment is more likely to achieve widespread
adoption of this reform than would individualized, State-by-
State bills. And one State, my State, serves as the proverbial
``exception that proves the rule.'' For reasons that are
intuitive, it appears that the greatest likelihood of passage
is in States where the Governor is of one party but the
legislature is overwhelmingly of the other party, and Rhode
Island's House voted yesterday to strip the Governor of his
appointment power on a 65-6 vote.
So we would urge that Congress formally propose this
amendment to the States and hopefully catalyze a national
effort on its behalf.
Thank you.
[The prepared statement of Mr. Segal appears as a
submission for the record.]
Chairman Feingold. Thank you very much, Mr. Segal.
Our next witness is Professor Vikram Amar from the
University of California School of Law, where he serves as
Associate Dean. A graduate of Yale Law School, Dean Amar
clerked for Judge William Norris on the Ninth Circuit Court of
Appeals and for Justice Harry Blackmun on the United States
Supreme Court. Today, Dean Amar writes, teaches, and consults
in the field of constitutional law. He also authors a biweekly
column on constitutional matters for Findlaw.com, a website
devoted to legal issues.
Dean, welcome and thank you for making the trip to be with
us, and you may proceed.
STATEMENT OF VIKRAM D. AMAR, ASSOCIATE DEAN FOR ACADEMIC
AFFAIRS AND PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA, DAVIS
SCHOOL OF LAW, DAVIS, CALIFORNIA
Mr. Amar. Thank you all so much for having me.
I would like to offer a few thoughts and suggestions, but
before I do, let me make it clear that I completely agree with
the premise behind the proposed amendment, namely, that popular
election is the best way to pick U.S. Senators. Of the three
devices that we have experience with--legislative selection,
popular election, and gubernatorial appointment--there is no
doubt that popular election is the best mode.
But the problem, of course, is that elections take time.
And as Mr. Nadler pointed out, you need a fair amount of time
for the election to be fair and open to candidates. Related to
that is a very important factor we have not talked about, and
that is voter turnout. If an election is not organized well
enough to facilitate turnout, it loses a lot of its normative
force.
You know, I have read the literature, and it seems like 3
months is about the minimum amount of time under ordinary
circumstances you could expect an election to take place, which
brings us to the crux, and that is, whether 3 months is too
long to tolerate vacancies and a State's underrepresentation
that the Constitution so painstakingly tries to avoid. And
whether 3 months is a long time or not depends on how you look
at things.
Reflect back on how much important work you all have done
in the last 6 weeks, which is half of 3 months, and you realize
how close some of those votes were, how the margins are tight
in these times. And super-majority rules like filibusters may
exaggerate the tightness of those margins. Then 3 months may be
a fair amount of time.
I know my good friend Pam Karlan in her written remarks
points out that even though States that lack one Senator have a
second Senator to represent them, but, you know, if California
had had only one voice, one vote in some of the big votes in
the last 6 weeks, I as a Californian would have felt very
disenfranchised by that if there had not been a full Senate
contingent.
That is why all but a handful of States--and I recognize
that they are represented here today--a handful of States have
decided to allow their Governors to make temporary
appointments. Note that the current Constitution does not
require States to do that. It simply authorizes them, and
almost all of them have done so, and I think that there is some
wisdom to be gleaned from State common practice.
Of course, as we have heard, delay in filling vacancies is
exponentially more problematic if we are talking about mass
vacancies in, say, the setting of a terrorist attack or some
other crisis. In a post-9/11 world, we simply cannot ignore the
possibility of large numbers of vacancies, so that brings me to
the first big prescriptive point I want to make, and that is,
if you proceed with a constitutional amendment, at a minimum
include a fallback provision that would allow temporary
gubernatorial appointment when some trigger, say 20 vacancies
in the Senate, is hit. And if you are worried about those
people gaining incumbency advantage at the next election, you
can make them constitutionally ineligible to run. You could
build that into the constitutional amendment yourself if you
wanted to. And I would actually recommend that you carry that
idea over to the House. Since you are cleaning up that
altogether, you might want to provide a similar emergency
trigger for the House of Representatives in addition the act
that has already been passed that requires elections to take
place within a prompt time.
My second big point builds on Representative Schock's
interesting statute, which I think is a very promising avenue,
and that is, you can accomplish much of what you want to do
here today by congressional statute. You could pass a statute
that requires an election to be held to fill a vacancy within
90 days. That would not foreclose gubernatorial appointments in
that interim, but it would make them less likely to be used,
because they will only last 90 days, and it would prevent
anyone from serving more than that 90-day window.
Because you would not be absolutely foreclosing
gubernatorial appointments but, rather, regulating the time of
a legislative election, that falls squarely within your Article
I, Section 4 powers to prescribe times and manners of Senate
elections. And as Mr. Neale pointed out, in the legislative
history surrounding the 17th Amendment, there was a big effort
to free States from congressional control under Article I,
Section 4, and that was defeated, affirming that Congress
retains that power. And, indeed, Congress does set the time for
regular Senate elections. There is no difference in the text of
the 17th Amendment between regular Senate popular elections and
special vacancy-filling popular elections. Both are subject to
congressional oversight.
The one thing you could not accomplish by statute--and I
will close with this point--is that you could not make the
gubernatorial appointee ineligible to run 90 days hence because
that would move beyond setting the time of an election to
prescribing the qualifications to be in the Senate, and I think
that falls outside your Article I power--so if you are really
worried about that incumbency advantage, then the
constitutional amendment is the only way to go. But if that is
not really driving too much of it, then I think a statute which
is flexible has the advantage.
And let me say one other point. I do not disfavor
constitutional amendment versus statute because I revere the
Founders, although I do in some ways. I agree with Mr. Conyers
that a lot of the best parts of the Constitution came via
amendment. But I think statutes are flexible and could be
amended and tweaked in light of experience going forward, and
for that reason, I would urge incrementalism if it satisfies
most of your concerns.
Thank you very much
[The prepared statement of Mr. Amar appears as a submission
for the record.]
Chairman Feingold. Thank you so much, Dean.
Our final witness is Pamela Karlan, the Kenneth and Harle
Montgomery Professor of Public Interest Law at Stanford Law
School, and co-Director of the school's Supreme Court
Litigation Clinic. A graduate of Yale Law School, Professor
Karlan clerked for Judge Abraham Sofaer of the United States
District Court for the Southern District of New York and for
Justice Harry Blackmun of the United States Supreme Court.
After her clerkship, she worked as assistant counsel at the
NAACP Legal Defense and Educational Fund and later as a
commissioner of the California Fair Political Practices
Commission before beginning her work at Stanford in 1998.
Professor Karlan, thank you for being here today, and you
may proceed.
STATEMENT OF PAMELA S. KARLAN, KENNETH AND HARLE MONTGOMERY
PROFESSOR OF PUBLIC INTEREST LAW, STANFORD LAW SCHOOL,
STANFORD, CALIFORNIA, AND CO-DIRECTOR, STANFORD LAW SCHOOL
SUPREME COURT LITIGATION CLINIC
Ms. Karlan. Thank you, Mr. Chairman. It is an honor to be
here.
In 1913, the 17th Amendment made a decisive change to the
original constitutional structure, and I recognize that some
people differ on the wisdom of that change, but now the
Senators are selected by the people. They do not represent the
States as States. They represent the people of the States.
The 17th Amendment did not fully realize that principle
because of the method of allowing Governors to continue filling
vacancies. And I think at the level of principle we all agree
that vacancies should be filled by the same method that is used
to select Senators in the first place, because the people's
right to representation is not limited to participating in a
biennial election, but it is a continuing right that should not
be defeated by the death or the resignation of their Senator.
And experience over the years shows us that gubernatorial
appointment has in some sense reprised some of the same flaws
that led to the 17th Amendment in the first place.
First, one of the central criticisms of gubernatorial
appointment and of legislative appointment was the corruption
process, and we have seen that both in overt corruption, but
also in other forms of corruption--appointing your relatives to
a seat, or appointing a friend, or my favorite case, the 24-
hour appointment of an 87-year old woman in Georgia so that she
could be the first female Senator. I think those things are
problematic.
The second thing, though, is I think that the gubernatorial
appointments can distort the representational process in
important ways, because the Governor may be appointing someone
who absolutely could not have been elected by the constituents
that that Senator is ostensibly serving. And we know this in
part from the fact that so many of the people who are appointed
and then run for election from the positions do not get
elected.
Now, that undermines, I think, the legitimacy of what they
do while they are in office, because they are not representing
the people of the States. They are representing themselves. And
a Senator who has never faced and perhaps has no intention ever
of facing the voters is, I think, an illegitimate Senator.
Third, gubernatorial appointments can create long-term
distortions by changing the dynamic of the next election. They
can make it impossible for a candidate of the party that has
nominated the temporary Senator to run because that then
divides the party in a primary election. They can change the
fundraising dynamic and the like. And that I think is also
problematic. So that all of the arguments against filling
senatorial vacancies solely by election stem, I think, just
from practicality and not from principle.
From an argument that there is a period of time in which it
is a problem for a State to be represented by only one Senator,
let me make a couple of observations here.
The first is that that happens all the time now. Senators
are vacant during critical votes due to illness or due to
family emergencies or due to some other personal or
professional business. And no one says that the Senate has
become illegitimate because 100 members are not on the floor
voting.
Second, it is often the case that much of a Senator's work
is done through casework for constituents and the like, and
here there is a distinction between the Senate and the House,
which is, if a House member resigns or a House vacancy occurs,
the people in that district are not represented at all in the
House until the next election. And we have not seen that to be
a constitutional problem. Whereas, in the Senate the likelihood
of there being two vacancies from a single State simultaneously
is so low as to be almost non-existent. And so people are still
represented in the Senate.
So it seems worthwhile to me to distinguish between what we
might think of as conventional Senate vacancies, where that
short period of time is not a problem, and what we might call
the catastrophic, where you have widespread vacancies in the
Senate because of a terrorist attack or the like.
And, of course, I urge you all to be thinking seriously
about continuity in Government, but I do not think that issue
should be the enemy of the good. And the enemy of the good is
we have had 180 people appointed to serve in the Senate since
1913, which is basically almost two full turnovers of Senators.
And I think we should think seriously about how to deal with
the legitimacy of the process by which we fill those seats.
I will say one last thing about the ELECT bill, which is it
has one, I think, very salutary suggestion in it, and I make
some remarks in this direction in my prepared testimony as
well, which is that using your power under Article I, Section
4, Congress might think about ways to help the States defray
the cost of special elections so that they can do that swiftly.
But I do not think that temporary appointments, whether for 3
months, 6 months, or in some cases, for up to 2\1/2\ years, is
the right way to fill seats in a body that since the 17th
Amendment has been elected by the people.
Thank you very much.
[The prepared statement of Ms. Karlan appears as a
submission for the record.]
Chairman Feingold. Thank you so much, Professor Karlan.
Thanks to all of you for your presentations.
We will start with questions, and I understand that our
friends from the House have a series of votes coming up, so
what I would like to so--and Senator Coburn has said this is
all right with him--is to recognize as many House members for
5-minute rounds of questions as I can before they have to
leave.
So let me turn things over now to Mr. Nadler.
Representative Nadler. I thank the Chairman.
Let me start by saying that, in principle, the idea of
elections is certainly a good one. The recent round of
selections, appointments, has not been the most edifying
exercise in Government, shall we say. But I do have one
serious, practical problem, and it was not really addressed.
Bob Edgar did a little. And, that is, especially in a State
like New York or California, where you are talking $20, $30,
$40 million to run for a Senate seat, it is one thing to raise
that over a period of a couple years; it is another thing to
raise it in 90 days or 180 days. And unless we are to amend
this amendment to provide for mandatory public financing and no
private financing at all, which I would support, how do you get
around the problem that if you call a special election--and it
is not analogous to the House because House seats are much
smaller, but in a large--and maybe not in Alaska, but in large
States, how do you get around the problem if you call a special
election with 90 days' notice, 180 days' notice, in effect you
are telling everybody who does not have $30 million in the bank
or is not a celebrity or a basketball player or whatever, or
even a statewide official, you cannot run?
Mr. Edgar. Mr. Nadler, I would like to respond to that. The
public airways that we spend so much money on with television
commercials to get Senators elected are public airways. And I
think you could address that in a number of ways by making
those public airways free for those candidates that qualify
after going through the process system. But you could also try
to recognize the fact that by raising all of that money,
special interests often control the outcome of those elections.
So I think it is not so bad that a Senate race in New York,
for example, would cost less in that 90-day period because the
candidates could not raise the amount of money necessary, but--
--
Representative Nadler. But that would simply mean that it
would be limited to candidates who already had the money.
Mr. Edgar. Not necessarily, if the public demanded that the
airways be open, that advertisements be less costly, those
candidates--when I first ran for my seat in the most Republican
district in the Nation to have a Democratic Congressman, I only
raised $35,000 and my opponent raised more than a quarter of a
million dollars, and there was an awful lot of grassroots
effort. And I think in a starting effort of a Senate race, the
public should be interested, their interest should be
heightened. They should get to know the candidates. And if the
public airways were open and not as expensive as they are in a
traditional Senate race, I think that would be helpful.
I would also argue that in traditional Senate races we have
got to lower the cost and----
Representative Nadler. I certainly agree on that. My only
concern--I mean, I support public financing, clean elections
and so forth. I think it is essential. I have said that the
campaign financing system is a metastasized cancer in American
democracy.
Mr. Edgar. We agree.
Representative Nadler. I know we do. My concern is that the
quick special elections and statewide elections without
mandating some form of public financing or free airways or
whatever would simply make the problem worse. Anybody want to
comment on that?
Ms. Karlan. You raise, of course, a huge problem with the
American electoral system altogether, and this may be one
reason why we want to leave to individual States the decision
about whether to hold an election within 90 days or to
recognize that democracy takes time. And so maybe there are
States in which the State will choose rather to have a vacancy
for 5 months or 6 months, or even a year. I think the real
question is whether slotting somebody into a seat while you go
through that process--and in New York, as you know, there is
going to be a special election, that is, Senator Gillibrand is
not serving the entire unexpired term of Senator Clinton.
So that is going to be there in any event, and I think, you
know, this is one of these questions where, to use your
metaphor, if you have a cancer in the election system, that
does not mean you do not keep the electoral patient's teeth
clean in the meantime. And I think that is part of why you do
not want to have people slotted into that seat who will then
have a huge advantage in the next round of trying to raise the
money that we all, I think, agree they should not be raising
solely from large contributors.
Representative Nadler. Thank you. I yield back.
Chairman Feingold. Thank you, Mr. Nadler.
We will alternate parties here. Mr. Gohmert.
Representative Gohmert. Thank you, Chairman Feingold. I
appreciate the opportunity to be here. And as Mr. Sensenbrenner
said, there is--and Chairman Conyers--more feeling of comfort
down here. It almost makes you want to pass a big omnibus bill
or something.
But on this issue, I have been really torn. I met with the
Governor of Texas who is here today, and we had, I think, 21 or
so Representatives, as many Democrats as Republicans, I think,
in the meeting, and I asked them, ``What do you think? '' And
as one Democrat said--and this seemed to be the consensus--
``Should we let one bad Governor in Illinois make us change
everything? ''
I do not know, maybe it is the spirit of the room or
whatever, but I found significant points of interest in my
friend Mr. Nadler and Mr. Conyers as well. Before 9/11, we did
not worry so much about possible disasters leaving us without a
Government to represent us. But I would just be interested in--
and, Professor Karlan, I appreciate your use of the word
``illegitimate'' a number of times, ``illegitimate Senator,''
``illegitimate body.'' We have not heard that a lot back home
in some years, that word.
But I am curious. I did not hear anybody address that, I
did not think, adequately. Suppose we had what was painted in
Tom Clancy's novel back in the 1990s and then we saw in the 9/
11 experience, suppose that plane had come in during a joint
session and taken out our body. Do you think there is any merit
to having some ability to have appointments, if necessary,
immediately so that we do not just have two Representatives and
two Senators, all that is left of a representative government
from the States? I am open to anybody's comment. But that seems
to be one factor that did not used to be as significant as it
seems to be after 9/11. Any thoughts?
Mr. Amar. Well, let me just jump in. I do think that is
something to focus on. As I indicated, at a minimum, if you are
going to amend the Constitution, it might be wise to build in
such a fallback provision with a vacancy trigger. Even if you
have a distaste for gubernatorial appointments, it is certainly
better than having mass vacancies. And, again, you might want
to do the same thing for the House of Representatives. You get
to amend the Constitution so infrequently that I think cleaning
up related messes makes sense.
The only thing I would say--and Pam, I think, mentioned
it--you do not want the perfect to be the enemy of the good.
But since you are focusing on this now, and if you write the
amendment so as to foreclose gubernatorial appointments
altogether, such that you are not going to have statutory room
later then to authorize a gubernatorial appointment in the
event of an emergency, you have got to deal with it now. And I
certainly do not think it is going to be easy to pass
subsequent constitutional amendments.
So including such a provision in the work that you do now,
if you go the constitutional route, would seem to make sense to
me.
Representative Gohmert. Well, let me just say with regard
to the House, we call it the ``people's House'' because right
now it is the only Federal body where the only way in there is
to be elected. But those of us representing districts, it seems
like you could get an election a whole lot quicker, for
example, in Texas for a Representative than you could for a
Senator. So I am not sure if I would be in favor of undoing the
process of elections in the House.
Mr. Amar. I do think there is a difference between the
House and the Senate, and the problem is more acute in the
Senate. I agree with that. One could draw a line if one wanted
to.
Representative Gohmert. Any other comments? Yes.
Mr. Spalding. I agree with the remarks about continuity of
Government being an extremely important question that ought to
be considered as we go down this path. In the current
circumstances, that is something that has to be thought
through.
But having said that, I would point, as you have alluded to
in all of your questions and all the questions raised here, all
these questions that are brought today, I agree these are all
legitimate concerns--cost, representation. The best place to
make those decisions is for individual States to think it
through themselves. The cost is very different in New York,
say, as opposed to Delaware. That is the nature of the system
the way it is set up.
So all of these questions, it seems to me, suggest that
there is not one uniform national rule that will fit in all
cases. We actually want to have this variance of opinion and
all them to make those decisions in the appropriate manner, and
they can choose whether they are willing to allow for a lack of
representation for a period of, say, 3 months or they would
like to have a temporary appointment made by their Governor.
That is a reasonable thing, and they ought to have the ability
to do so.
Mr. Edgar. I would like to respond to your first point
about the fear of a catastrophic event. I think that whether it
is the election or the appointment of Senators in a
catastrophic event is going to be the least important issue
when that event occurs. I think it is something to think about,
but I would basically say my fear is that we do not have good
health care, we do not have good public education, we do not
have a good response to that catastrophe rather than what
happens. If that kind of catastrophe happens, in my opinion, we
would sort that out given the conditions of the catastrophe,
and I just do not feel that you should hold up a thoughtful
conversation on the selection of Senators based on the question
of catastrophe. All of those issues will be considered given
the nature of the catastrophe, but I do not think we ought to
prejudge what that catastrophe----
Representative Gohmert. But you surely would have to
acknowledge that catastrophe is one of the factors that you use
in considering--and I appreciate the Chairman's indulgence. I
came in here unsure how I felt about a constitutional
amendment, so I welcome all the positions. And if you knew
which particular Senators each year were kept out of the joint
session in the State of the Union, it might make some years
more important to have quicker appointment than others. But
thank you very much, Mr. Chairman.
Chairman Feingold. Thank you. I appreciate your comments
and I am about to turn to Representative Scott, but let me just
say quickly, as people look at their views on this, we do not
talk about federalism when we talk about the right to vote. The
right to vote includes the right to vote for a Senator. We do
not say, you know, in some States you can vote for a Senator
and in some you cannot. You have a right to vote. And it seems
very odd that since we fought so hard to make sure that
everybody got the right to vote that in some States people are
denied the right to vote when it comes to a vacancy. They
simply do not get to vote. That rises to a very high level
where it seems to me federalism is trumped. The very nature of
the right to vote was all about trumping some extreme and wrong
notions of federalism.
And it is also odd that so many of these arguments that are
made really would argue in favor of having similar flexibility
with regard to House Members. You can argue that, obviously, a
State is bigger than a congressional district, but not always.
When you think about the arguments you are making, well, we
really probably should have the option for appointing House
Members then, too, to address all these concerns about cost and
the like. And, obviously, I do not support that.
Finally, more of a light-hearted note, I have just turned
56 years old, and we have only had to have one special election
for the U.S. Senate in my lifetime. That is the famous death of
Joe McCarthy where Bill Proxmire was elected. So, fortunately,
these things do not happen to Senators too often.
Mr. Scott.
Representative Scott. Thank you, Mr. Chairman.
I think just in perspective, the question is not whether or
not we ought to be debating, but whether the debate should take
place in the State legislatures or the U.S. Congress. And it is
not whether we would rather have appointed or elected Senators.
The question is whether you would rather have an appointed
Senator or a vacancy and whether or not the people are better
off with an appointment by their elected Governor or no
representation at all.
In that light, let me ask the panel: What would be a
reasonable time for an election in New York or California, some
of the larger States, as opposed to some of the smaller States
where you could probably have one in a couple of months?
Because they are about the size of a congressional district,
you could have one pretty quickly. What would be a reasonable
time to have an election in a large State? Mr. Spalding.
Mr. Spalding. I think that precisely is the question, and
the answer there depends upon--it is going to be different from
one State to the other State. And that suggests exactly why
there should not be one rule.
Representative Scott. The constitutional amendment before
us lets the executive issue the writ of election. I guess he
could decide how long it is. What would be a reasonable time?
How long would, say, California or New York be without a
representative? And I assume if you had a situation where you
had a vacancy in Alaska and one in California, Alaska could
have a quick election in a couple of months; in California, it
might reasonably take to the primary-3 months to the primary, 3
more months to the general election, maybe 6 months. What would
be a reasonable--how long a vacancy are we talking about?
Mr. Edgar. On a humorous note, I would say that the
District of Columbia has been for many, many years with a
vacancy.
Representative Scott. We are trying to do something about
that.
[Laughter.]
Mr. Edgar. I think that the amendment as proposed gives the
State the opportunity to make the selection, and to your
earlier point, I do not think it is catastrophic to be 120 days
in the larger States and 90 days in the smaller States, or
whatever makes the best sense for those States, particularly
given what Mr. Kennedy talked about in terms of finding a time
where--
Representative Scott. You think you can do it--what are we
talking, almost 120 days for the vacancies in the House. In
Illinois--when is that election? New York? When are those
elections. I mean, you are talking 3 months for a House of
Representatives election.
Mr. Edgar. Just to remind you that there are some other
democracies that elect their Prime Ministers and Presidents in
a shorter time than the United States does.
Representative Scott. OK. Well, if the quickest we can
reasonably fill a House vacancy is 3 months, you would expect a
large State to be 4, 5, 6 months or more. Most people, when
they announce for the U.S. Senate, announce about 2 years in
advance in getting ready for an election. Professor Karlan.
Ms. Karlan. Well, two points, Representative Scott. The
first is having been on the Fair Political Practices Commission
in California when we had the gubernatorial recall election, we
actually can run a statewide election and produce a statewide
winner in a couple of months. I think it was about 3 months
from the time that the ballot initiative qualified until the
special election was called, maybe slightly longer than that.
So that can be done.
The second point which I will just make is about the
flexibility of the States, and as you know in your own State,
the Commonwealth of Virginia, the parties have some control
over how they do nominations for seats so that sometimes they
use primaries--the Democrats often do. The Republicans, as you
know, often use conventions. And so it is available to a State,
for example, to have a process in place by which, if there is a
vacancy, you do not have primary elections for that vacancy.
You go straight to conventions, and then you go straight into a
general election.
So leaving aside Representative Nadler's point about the
money, which I agree with 100 percent, in terms of the
logistics I do not think the logistics will take all that much
longer for a senatorial election than to fill other kinds of
vacancies.
Representative Scott. My time is running out, but in the
last 12 years, the margin in the Senate has been often one
vote. I think about half the time in the last 12 years it has
been one vote. If you go 6 months with a vacancy, does that
mean that the control of the Senate flips until the election is
held and flips back? How would that work?
Mr. Edgar. You have that situation now with Minnesota.
Representative Scott. Well, this would happen more often.
If you go 6 months with a vacancy, that would be a routine--
Mr. Edgar. And the United States has not come to a
screeching halt in terms of legislative priorities as the State
itself sorts out who they want to represent them and who the
people, in fact, have elected.
Ms. Karlan. Well, and there may be a question about
legitimacy here. I hate to use the word again, but imagine, for
example, that the Senate is very closely divided and a Senator
dies, and then a Governor from the other party appoints
somebody who the people of that State would never have elected,
and that switches control of the Senate. It is not clear to me
that that does not cause you exactly the same problem.
Chairman Feingold. Thank you, Professor Karlan. Thank you,
Mr. Scott.
Mr. Johnson, please.
Mr. Johnson. Thank you, Mr. Chairman.
In January of 2009, we have an unfolding drama in Illinois,
allegations that the Governor attempted to sell a Senate
appointment. And that was just a couple of months ago, and now
in response to--I would argue in response to that we have this
move to amend our Constitution. And I want everybody to know
that, you know, I do not think that it is a given that the
Governor is guilty of whatever, I assume, he will be charged
with. And it is important to note that he has not even been
indicted yet, much less convicted, and he certainly has a
presumption of innocence.
And so for us to assume that that is what he did and then
as a premise look at amending our Constitution to make sure
that that does not happen, I am kind of leery about that. And I
am also troubled by the fact that States can set elections for
a special election in--you know, you have to do it in 45 days,
some might say between 90 and 120 days. Special elections
probably should be uniform so that everyone, all Americans
would have the same opportunity to experience a vigorous
campaign, debates, forums, that kind of thing, before they are
called upon to cast their vote.
And so having said that, I kind of like the idea that
Representative Schock put forth to make changes in the way that
Senators are appointed to fill vacancies. I think that that is
probably a more prudent approach. And I am looking here at
Section 4 of Article I of our Constitution: ``The times,
places, and manner of holding elections for Senators and
Representatives shall be prescribed in each State by the
legislature thereof; but the Congress may at any time by law
make or alter such regulations, except as to the place of
choosing Senators.''
So the first question I want to ask, or the main question I
want to ask is: If anyone has had a chance to review
Representative Schock's proposed legislation, I would like to
know whether or not you feel that that legislation could
accomplish what this constitutional amendment would accomplish?
Mr. Amar. Well, as I said in my earlier remarks, I think it
would accomplish a great deal of what is behind the
constitutional amendment. It does not fully address the
question that Pam Karlan and others have raised about whether
any appointed Senator has legitimacy to act on behalf of the
State. But I think it does help address Mr. Scott's concern of
States being underrepresented during that time, during the time
of a vacancy, by having somebody in there, but then somebody
who cannot be there for more than 90 days without having won a
vote of the people.
The one other thing, as I mentioned earlier, you could not
do under Article I, Section 4 is prevent that appointed person
from running in the election thereafter. And if you are worried
about the kind of incumbency status that arises from having the
office for up to 90 days, then you cannot statutorily do
anything about that because you can set the time of the
election, but you cannot set the qualifications for that
election.
Mr. Johnson. Thank you, sir. My time has about ended. I
will just close with the observation that it is better to have
some representation--it is better to have appointed
representation than no representation, especially at crucial
times like we face today.
Thank you.
Chairman Feingold. Representative Jackson Lee.
Representative Jackson Lee. Thank you very much, Mr.
Chairman. As I have sat here this morning and now almost
afternoon, it becomes very clear that this hearing becomes more
important by the moment, and I thank you for joining with the
House on this constitutional question and I think something
that the public should take notice of because it speaks to
representation.
Our time is short, so let me pose my questions, and I
appreciate your answers in that context. I want to go to my
good friend Bob Edgar, and let me just suggest that your
election was not a mistake. We are grateful for your service
and your service now. But your testimony indicates that this
proposed amendment is in keeping with the strides toward
democracy and, of course, your eloquent quoting of Dr. King.
The majority of States allow gubernatorial appointment of
Senate seats. Are gubernatorial appointments in your view of
Senate seats inherently undemocratic?
Mr. Edgar. I think they are, and this is a personal view,
but shared by many members of Common Cause. I think we believe
that the best way to serve democracy is for the election of
House and Senate Members, and we see that over and over again.
And I would like to speak just quickly to Mr. Johnson's point.
It looks like this hearing is only about the issue in Illinois.
I would say strongly that our constituents of Common Cause are
concerned about the issue in Delaware, the issue in New York,
the issue in Colorado, and other places.
I think it is important for us to recognize that it is not
just the Illinois Governor's appointment. There have been
stumbles and fumbles on several other aspects of the election,
and the people really need to be served, as opposed to the
interest of one person--namely, the Governor.
Representative Jackson Lee. Thank you very much. Let me go
to the constitutional question and also the extensive amount of
time that it takes to amend the Constitution and the sacredness
in which I think most of us, on behalf of the American people,
hold this process of constitutional amendments. And I would
like to--I associate myself with the idea of public finance,
for example, in this narrow window. That might equalize the
kinds of persons that can come into the U.S. Senate, such as
celebrities like Senator Feingold and stars getting their way
into the body. But I do know, knowing Senator Feingold and the
Chairman, that he welcomes the everyman and everywoman. And I
happen to think that the 90-day window may be favorable.
I would ask Professor Amar and my good friend--I know we
have been together before--Professor Karlan two issues very
quickly. Distinctly separate the constitutional approach versus
the statutory approach, and what is your angst or your
disagreement, Professor Amar, in particular, with the
constitutional approach? And, Professor Karlan, just your
analysis on why the view of the statute, which for me says,
very quickly, that if there was a terrorist act and the only
person standing was the Governor, we are stuck with the
constitutional amendment. But I am open to how we can make this
most effective. I certainly think there is a constitutional or
democratic question or people's question of getting people to
elect their Representative. Professor Amar.
Mr. Amar. Sure. Statutorily, you can make the term of any
appointment very small by setting a requirement that there be
an election within a short period of time when the vacancy
occurs. But you cannot foreclose a State from trying to appoint
someone for whatever that window is, because the 17th Amendment
right now gives States the power to fill vacancies until the
next election. You can set the time for the next election a
week after the vacancy, but, of course, then you have got the
problem of no voter turnout and not a full and fair election
because no one could really run.
So if you have an election set for 90 days or so after a
vacancy----
Representative Jackson Lee. By statute.
Mr. Amar. By statute, you can limit the term of a
gubernatorial appointee, but you cannot eliminate that
altogether. So----
Representative Jackson Lee. The statute does not eliminate
it, so the Governor can appoint----
Mr. Amar. That is right.
Representative Jackson Lee. But that person has to stand
for election in 90 days.
Mr. Amar. That is right.
Representative Jackson Lee. Is there a problem with that?
Mr. Amar. I do not see a problem with that, which is why I
support the statute. But if you believe that there should be no
appointees at all because they are inherently illegitimate
democratically, then the statute does not get rid of that
problem.
Representative Jackson Lee. OK. And your problem with the
constitutional amendment?
Mr. Amar. Well, again, I think it is--I think it is
important for States to be represented even in that window, and
I think it is also important to proceed incrementally.
Representative Jackson Lee. I thank you.
Professor Karlan.
Ms. Karlan. Two points. It is always good to see a
satisfied client.
The first is to draw an analog here to the 23rd Amendment,
which I know is near and dear to many of you, which is the 23rd
Amendment went part of the way toward enfranchising the people
of D.C., and we are now in the process of seeing whether a
statute can do the rest of that. And, you know, there is
constitutional doubt about statutes like that, and there is
going to be lots of litigation and the like, because there are
some things that cannot easily be done through statutes.
The same thing here. You can get most of the way there, but
you cannot get the whole way there to ensuring that the Senate
represents the people.
Now, I agree with you, I agree with all of the other
members who have said you need to do some serious thinking
about continuity in Government. And I support thinking
seriously about the continuity in Government point, but that is
different than the normal kind of predictable, actuarial
vacancies in the Senate. And as to those, I think a
constitutional amendment is the way to go. And just the sheer
length of time it is going to take for an amendment to get
proposed, sent out to the States for ratification and the like
allows, I think, for a goodly amount of time for discussion and
debate. And ultimately the people of the several States will
decide whether they want a gubernatorial election to occur or
not by deciding whether they are going to ratify the amendment.
But I think that process of having that conversation at a
constitutional level is important and valuable.
Representative Jackson Lee. Well, as usual, you all have
shed light on areas that have been quite gray, and it will give
us a lot to think about. It is a very important question that
we are raising, and I think the issue of democracy and the
people's choice may be swaying us to move forward as quickly as
possible.
I thank you, Mr. Chairman, and I yield back.
Chairman Feingold. Thank you, Representative. I am pleased
we were able to have all the House Members here have a round
before their votes start.
Let me take my time and first say thank you to Mr. Edgar
for pointing out this is not just about Illinois. Each of the
situations that has occurred raises, in my view, serious
concerns that have really nothing or very little to do with the
people who are appointed. But without getting into the
specifics, each of them raises real concerns when you do not
have all the people being eligible to choose somebody, when it
is just one person who can make the choice.
And, frankly, I say to my friends from the House, the more
you tell me that it is better to have somebody appointed than
to have a vacancy, well, maybe you ought to reconsider what
happens when House Members have to change. If that is true, we
should change the Constitution to have appointment of House
Members. We cannot have it both ways, and I strongly oppose
that. I think the notion that people have a right to vote for
their House Members or their Senators applies with equal force.
So the more I hear this notion that somehow you have got to
have somebody appointed right away, you cannot have a gap, that
really raises questions about the whole way in which the House
of Representatives is constituted. And I have no problem with
the way it is constituted.
Mr. Kennedy, just very quickly, I wanted to know your
reaction to what seems to be another argument that is
constantly raised, the assumption of some of my colleagues
somehow that special elections would take longer to organize in
larger or more populous States. Could you comment on that?
Mr. Kennedy. Well, I think it has already been pointed out,
Senator, that California can run an election--it was a bit
chaotic, their election, but--maybe I am understating it for
those that live in California. But it can be done, and it is
done in several countries. Wisconsin, which is 24th in
population, 26th in geographic size, holds its special
elections, the shortest 62 days from the time the Governor
calls the order. You look at other countries and how they
organize it, it can be done, where if you leave it to the
States, it is how they organize that election process.
I would also say that the public really does not want to
see an election that goes on for 5 months. You know, while the
candidates may want to articulate their positions and
articulate their positions, given the media that we have in
this country and the ability to communicate, I think the public
could be well informed. I think the infrastructure exists that
we can actually conduct an election, as, again, in Wisconsin we
are doing it in as short as a 9-week period. So I think it is
practically there.
And when you think about the information that the people
are going to have to make their choice, it can be done in that
period of time. And----
Chairman Feingold. And in that spirit, I want to turn to
Mr. Edgar on this question of cost, and Mr. Nadler is concerned
about the high cost of a statewide election to States like New
York. Isn't one of the main contributors to the cost of an
election the length of the campaign? It costs a lot more to run
ads for 9 months than it does to run them for 3 months, doesn't
it?
Mr. Edgar. That is absolutely correct. I think we drag out
these elections. We ought to take a look at the Presidential
election. It probably has already started for 2012.
I think we in the United States need to figure out systems
where elections can be fair, where the machinery works, where
there can be a paper trail and audited, and I think Minnesota
has shown that, in fact, they had the right machines, they had
the process, they had a close election. It could be verified.
It is taking a long time. But I think normally we can shorten
the time. It would shorten the cost, and I think we would have
a better Congress if we knew that all were representing all the
people.
Chairman Feingold. Thank you.
Mr. Neale, thanks for all the work you have done again, and
your colleagues. Both Dr. Spalding and Dean Amar are very
concerned about the possibility that States will lack full
representation in the Senate for several months. Of course,
this can even happen when a seat is not vacant, because of an
illness, for example. I can think of several Members of the
Senate since I have been here who have been unavoidably absent
for weeks or months at some point in their service.
You have been at CRS for quite a while. Can you think of
some examples that former Senators were unable to vote on the
floor for extended periods of time?
Mr. Neale. Certainly, Mr. Chairman. I think probably the
champion in this case was Senator Carter Glass from Virginia,
who was President Pro Tem and I believe Chair of the Committee
on Appropriations. From about 1942 through 1946, he was
basically bedridden with serious heart problems, and he finally
did die before the end of his term. But for a 4-year period, he
did not appear in the Senate chamber.
More recently, in 1964, Senator Clair Engle of California
was ill with--being treated for a brain tumor, from which he
ultimately died, and, in fact, came to the Senate in a very
dramatic moment to cast his vote. He could not speak. He raised
his hand to cast a vote to break the filibuster on the Civil
Rights Act of 1964.
And, more recently, Senator Karl Mundt suffered a disabling
stroke so far as speech was concerned. He became aphasic in
1969, continued to serve out his term while from his hospital
bed or from home from 1969 until 1972. And at that time, it was
pointed out, with Senator McGovern campaigning for President
and Senator Muntz essentially disabled, that the State was
without a Senator for a full year.
Chairman Feingold. Thank you. One more question.
Mr. Segal, Dean Amar suggests that special elections are an
unappealing method of filling Senate vacancies due to low voter
turnout. Do you agree with his statement that the premise that
popular elections are the best way to pick a Senator is
justified only when ``those popular elections are ones in which
a broad cross section of statewide voters are encouraged and
likely to participate? ''
Mr. Segal. I think higher participation is obviously
preferable to lower participation, but I think that to have a
Senator selected by perhaps not the entire breadth of the
electorate but a large portion of it is certainly preferable an
appointee by a single individual. And there are in our
estimation ways of increasing turnout in special elections. We
in particular support instant runoff voting, which has been
incorporated into the legislation that is pending before the
Vermont Legislature right now, which would compress the general
election and the primary election, increasing the number of
candidates on the ballot, increasing the focus on that
particular date, and likely increasing turnout.
Chairman Feingold. Thank you very much.
Mr. Gohmert, did you have anything further?
Representative Gohmert. No. Thank you very much. I do
appreciate the manner in which you have conducted the hearing,
and it is heartwarming to note from your comments that you
really see no difference between Senators and Representatives.
Chairman Feingold. Absolutely none. Celebrities and
millionaires all.
Mr. Scott.
Representative Scott. No. Thank you very much, Mr.
Chairman.
Chairman Feingold. OK. Thank you all. Of course, I thank
all the witnesses.
If there are no further questions, we will bring this
hearing to a close. Once again, I want to thank all the
witnesses for their very thoughtful written testimony and oral
presentations. It has been a fascinating hearing. I think all
the major issues raised with regard to the proposed
constitutional amendment have been aired with great care.
The record of this hearing will be a significant aid to
Members of Congress, and hopefully State legislatures who will
have to decide, of course, how to vote on the amendment if we
are able to get it to them.
I want to thank my colleagues who have participated for
their insights as well, and I look forward to working with all
of you as we move this amendment through the legislative
process.
The record of this hearing will remain open for one week
for the witnesses or anyone who has not testified today to
submit any materials they wish to provide for the record.
Members will have the same amount of time to submit written
questions, and we will ask the witnesses to respond to those
questions promptly so that we can close the record in a
reasonable amount of time.
Again, I thank everyone who has participated in the
hearing, and the hearing is adjourned.
[Whereupon, at 12:05 p.m., the Subcommittee was adjourned.]
[Questions and answers and submissions for the record
follow.]
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