[Congressional Record Volume 155, Number 18 (Thursday, January 29, 2009)]
[Senate]
[Pages S1067-S1069]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FEINGOLD (for himself, Mr. Begich, and Mr. McCain):
  S.J. Res. 7. A joint resolution proposing an amendment to the 
Constitution of the United States relative to the election of Senators; 
to the Committee on the Judiciary.
  Mr. FEINGOLD. Mr. President, our founding fathers did a remarkable 
job in drafting the United States Constitution and the Bill of Rights. 
Their work was so superb that in the 217 years since the ratification 
of the Bill of Rights, the Constitution has only been amended 17 times. 
But every so often, a situation arises that so clearly exposes a flaw 
in our constitutional structure that it requires a constitutional 
remedy.
  Over the past several months, our country has witnessed multiple 
controversies surrounding appointments to vacant Senate seats by 
governors. The vacancies in Illinois and New York have made for 
riveting political theater, but lost in the seemingly endless string of 
press conferences and surprise revelations is the basic fact that the 
citizens of these states have had no say in who should represent them 
in the Senate. The same is true of the recent selections in Delaware 
and Colorado. That is why I will introduce today a constitutional 
amendment to end gubernatorial appointments to the U.S. Senate and 
require special elections to fill these vacancies, as is currently 
required for House vacancies. I am pleased that the recently elected 
Senator from Alaska, Senator Begich, and the distinguished senior 
Senator from Arizona, Senator McCain, have agreed to be original 
cosponsors of the amendment.
  I do not make this proposal lightly. In fact, I have opposed dozens 
of constitutional amendments during my time in the Senate, particularly 
those that would have interfered with the Bill of Rights. The 
Constitution should not be treated like a rough draft. Constitutional 
amendments should be considered only when a statutory remedy to a 
problem is not available, and when the impact of the issue at hand on 
the structure of our government, the safety, welfare, or freedoms of 
our citizens, or the survival of our democratic republic is so 
significant that an amendment is warranted. I believe this is such a 
case.
  In 1913, the citizens of this country, acting through their elected 
state legislatures, ratified the 17th Amendment to the Constitution. 
Our esteemed colleague Senator Byrd, in Chapter 21 of his remarkable 
history of the United

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States Senate, lays out in fascinating detail the lengthy struggle to 
obtain for the citizens of this country the right to elect their 
Senators. The original Constitution, as we all know, gave state 
legislatures the right to choose the Senators for their states. While 
the first proposal to amend the Constitution to require the direct 
election of Senators was introduced in the House in 1826, the effort 
only really picked up steam after the Civil War.
  As Senator Byrd recounts: ``In the post-Civil War period, state 
legislatures became increasingly subject to intimidation and bribery in 
the selection of Senators.'' Nine cases of bribery came before the 
Senate between 1866 and 1906. And between 1891 and 1905, the state 
legislatures from 20 different states deadlocked 45 times when trying 
to pick a Senator. At one point, a Senate seat from Delaware remained 
vacant for 4 years because of deadlocks.
  The political theater occasioned by these Senate appointment fights 
dwarfs even the extraordinary events we have witnessed in recent 
months. Senator Byrd quotes from an account by the historian George 
Haynes about efforts to select a Senator in Missouri in 1905:

       Lest the hour of adjournment should come before an election 
     was secured, an attempt was made to stop the clock upon the 
     wall of the assembly chamber. Democrats tried to prevent its 
     being tempered with; and when certain Republicans brought 
     forward a ladder, it was seized and thrown out of the window. 
     A fist-fight followed, in which many were involved. Desks 
     were torn from the floor and a fusillade of books began. The 
     glass of the clock-front was broken, but the pendulum still 
     persisted in swinging until, in the midst of a yelling mob, 
     one member began throwing ink bottles at the clock, and 
     finally succeeded in breaking the pendulum. On a motion to 
     adjourn, arose the wildest disorder. The presiding officers 
     of both houses mounted the speaker's desk, and, by shouting 
     and waving their arms, tried to quiet the mob. Finally, they 
     succeeded in securing some semblance of order.

  Popular sentiment for direct election of Senators slowly grew in 
response to events like these. Some states held popular referenda on 
who should be Senator and attempted to require their legislatures to 
select the winners of those votes. More and more Senators were chosen 
in such processes, leading to more support in the Senate for a 
constitutional amendment. Congress finally acted in 1911 and 1912. 
There was high drama in the Senate as Vice President James Schoolcraft 
Sherman broke a tie on a crucial substitute amendment offered by 
Senator Joseph Bristow of Kansas during Senate consideration of the 
joint resolution. A few days of parliamentary wrangling ensued over 
whether the Vice President's tie breaking role in the Senate extends to 
such situations, and that precedent still stands today. In May 1912, an 
impasse of almost a year was broken and the House receded to the Senate 
version of the amendment, allowing it to be sent to the States for 
ratification. Less than a year later, on April 8, 1913, Connecticut 
became the 36th State to ratify the amendment, and it became the 17th 
Amendment to the Constitution.
  I recount this summary of the history of the 17th Amendment, and 
again, I commend to my colleagues Senator Byrd's chapter on the 
subject, first to make the point that even though it seems obvious to 
us that the Senate should be elected by the people, the struggle for 
that right was not easy or fast. But the cause was just and in the end 
the call for direct elections was too strong to be ignored. I believe 
the same result will occur here. It may take time, but in the end, I am 
confident that the principle that people must elect their 
representatives will prevail.
  Second, this history shows that the public's disgust with the 
corruption, bribery, and political chicanery that resulted from having 
Senators chosen by state legislatures was a big motivation for passing 
the amendment. Gubernatorial appointments pose the same dangers, and 
demand the same solution--direct elections.
  Finally, the history indicates that the proviso in the 17th amendment 
permitting gubernatorial appointments to fill temporary vacancies was 
not the subject of extensive debate in the Congress. The proviso 
originated in the substitute amendment offered by Senator Bristow. The 
Bristow substitute was designed, its sponsor explained, to ``make[] the 
least possible change in the Constitution to accomplish the purposes 
desired; that is the election of Senators by popular vote.'' Most 
significantly, it deleted a provision in the resolution as originally 
introduced that year that would have amended Article I, section 4 of 
the Constitution to remove Congress's supervisory authority to make or 
alter regulations concerning the time and manner of Senate elections.
  The proviso, explained Senator Bristow, ``is practically the same 
provision which now exists in the case of such a vacancy. The governor 
of the State may appoint a Senator until the legislature elects.'' 
Although significant debate over other provisions in the Bristow 
amendment is found in the Record before the climactic tie vote, which 
was broken by the Vice President, there seems to have been no further 
discussion of the proviso.
  Thus, it appears that the proviso was simply derived from the 
original constitutional provision in Article I, Section 3, which gave 
the power to choose Senators to the state legislatures, but allowed 
governors to appoint temporary replacements when the legislatures were 
not in session. It was unremarkable at the time of the 17th Amendment 
to allow governors to have the same temporary replacement power once 
direct elections were required. That would explain the apparent lack of 
debate on the question. The long and contentious debate over the 
amendment was dominated by much more basic issues, such as whether the 
people should elect their Senators at all, and whether Congress should 
also amend the ``time, place, or manner clause'' of Article I, section 
4.
  Nearly 100 years later, that proviso has allowed a total of 184 
Senators to be appointed by governors, and we have a situation in 
today's Senate where the people of four states, comprising over 12 
percent of the entire population of the country, will be represented 
for the next two years by someone they did not elect. It is very hard 
to imagine that the Congress that passed the 17th Amendment and the 
states that ratified it would have been comfortable with such an 
outcome. Indeed, some argue that the intent of the 17th Amendment was 
that temporary appointments to fill early vacancies should last only 
until a special election can be scheduled, rather than for an entire 
two-year Congress until the next general election. A number of states 
have adopted that approach, but many have not.
  That is not to say that the people appointed to Senate seats are not 
capable of serving, or will not do so honorably. I have no reason to 
question the fitness for office of any of the most recent appointees, 
and I look forward to working with them. But 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.
  I want to make it clear that this proposal is not simply a response 
to these 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-17th Amendment era, when state legislatures elected U.S. Senators. 
Direct election of Senators was championed by the great progressive Bob 
La Follette, who served as Wisconsin's Governor and a U.S. Senator. 
Indeed, my State of Wisconsin is now one of only 4 States, Oregon, 
Massachusetts, and Alaska are the others, that clearly require a 
special election to fill a Senate vacancy in all circumstances.
  The vast majority of states still rely on the appointment system, 
while retaining the right to require direct elections, as the 
Massachusetts legislature and the voters of Alaska have done in recent 
years. But changing this system state by state would be a long and 
difficult process, even more difficult than the ratification of a 
constitutional amendment, particularly since Governors have the power 
to veto state statutes that would take this power away from them. 
Furthermore, the burden should not be on Americans to pass legislation 
in their states protecting their fundamental voting rights--the right 
to elect one's representatives is a bedrock principle and

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should be reaffirmed in the nation's ruling charter.
  We need to finish the job started by La Follette and other reformers 
nearly a century ago. Nobody can represent the people in the House of 
Representatives without the approval of the voters. The same should be 
true for the Senate.
  In the several days since I announced my intention to introduce this 
amendment, I have heard a number of arguments raised against it. I 
would like to briefly address them. First of all, some suggest this 
amendment is an overreaction to the headlines of the day. But there are 
several precedents for amending the provisions of the Constitution that 
relate to the structure of government based on specific events. The 
22nd Amendment, limiting the presidency to two terms, passed in 1951 in 
response to President Franklin D. Roosevelt's four-term presidency. The 
25th Amendment, revising presidential succession, was passed in 1967 in 
response to confusion that occurred after the assassination of 
President Kennedy. If events demonstrate that there is a problem with 
our government structure, sooner or later we must take steps to address 
those problems. There is no better time to do that than when the 
effects of the structural flaw are most evident and most prominently 
part of the public debate.
  Another objection I have heard to this proposal is the potential 
financial burden on the states that must pay for special elections. As 
someone with a reputation for fiscal discipline, I always consider a 
proposal's impact on the taxpayer. But the cost to our democracy of 
continuing the anachronism of gubernatorial Senate appointments is far 
greater than the cost of infrequent special elections. And weighing the 
costs associated with the most basic tenet of our democracy--the 
election of the government by the governed--sets us on a dangerous 
path. Besides, the Constitution already requires special elections when 
a House seat becomes vacant, a far more frequent occurrence since there 
are so many more Representatives than Senators. I find the cost 
argument wholly unconvincing.
  Another argument I have heard is that special elections garner very 
low turnouts, or favor wealthy or well known candidates. They are not 
particularly democratic, the argument goes. And that may very well be 
true. But they are a whole lot more democratic than the election held 
inside the mind of one decisionmaker--the governor. Special elections 
may not be ideal, but they are elections, and every voter has the 
opportunity to participate. As Winston Churchill said, ``It has been 
said that democracy is the worst form of government except all the 
others that have been tried.''
  I have also heard the argument that the candidates for the special 
election will be selected by party bosses because there won't be time 
for a primary. That is simply not true. Under this amendment, each 
state can decide how to set up its special elections. My home State of 
Wisconsin provides for a special election within about 10 weeks of the 
vacancy, with a primary one month earlier. It's a compressed schedule 
to be sure, because the state doesn't want to be without representation 
for too long. But it can be done. I would hope that most states would 
want to hold primaries, but the point of this amendment is to make 
clear that only Senators who have been elected by the people can serve, 
not to micromanage how the states want to implement that requirement.
  I believe the core issue here is whether we are going to have a 
government that is as representative of and responsive to the people as 
possible. The time to require special elections to fill Senate 
vacancies has come. Congress should act quickly on this proposal, and 
send it to the states for ratification.

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