Another Feingold Idea

by Jeff Fleischer

(BuzzFlash, August 24, 2009)

For the past few election cycles, most talk of amending the Constitution has come from candidates hoping to cynically create a wedge issue. The regressive wing of the Republican Party has routinely concocted measures that had no chance of passing but could effectively rally a certain percentage of its base to the cause of restricting freedom, whether via perennial attempts to ban flag burning or the 2004 obsession with restricting marriage rights.

However, while health care reform has dominated the news lately, the Senate is quietly advancing an amendment with a legitimately noble cause — to make the federal government slightly more democratic. Sen. Russ Feingold (D-WI) has introduced a measure to ensure that voters will determine who fills vacancies in the nation’s highest deliberative body via special elections. (The amendment — co-sponsored by Mark Begich, Dick Durbin, and John McCain — was passed by a Senate subcommittee on August 6 and now must pass the full Judiciary Committee.)

It’s a simple idea, and a good one.

The best constitutional amendments have always been those that made the country more democratic, and those are the ones we still celebrate. That tradition started with the Bill of Rights, a codification of powers given to the citizenry that is still admired by other liberal democracies. The tradition continued as lawmakers extended the franchise to African Americans, women, and 18-20 year olds, giving more Americans voices in their government.

The 17th Amendment, ratified in 1913, fit that mold perfectly as it ensured senators would be elected directly by the voters of their states rather than by state legislatures. It made potential senators appeal directly to their future constituents, and at least diluted the influence of party bosses. Looking back, it seems an obvious and intuitive improvement.

When a senator resigns mid-term, though, the voters often lose that ability to choose who represents them. At the moment, only five states allow for special elections when one of their senators vacates his or her seat; the other 45 place the decision in the hands of the governor.

Sometimes unusual circumstances are needed to illustrate a problem, and the current Senate has seen an epidemic of unusual circumstances. By the time voters go to the polls in 2010, the previous two years will have seen no fewer than six members of the U.S. Senate take their seats only after direct appointments by their governors. In July, Feingold pointed out that an unelected senator would soon represent more than 20 percent of the American population — and that was even before Florida’s Mel Martinez added to the number by announcing his resignation.

“It is very difficult to imagine that the Congress that passed the 17th Amendment, and the populace that demanded it, would have been comfortable with a system that has resulted in such a large carve-out for gubernatorial appointments,” Feingold wrote. “The current system of appointments to fill Senate vacancies is fundamentally undemocratic, and it too often leads to political shenanigans, at best, and serious allegations of corruption, bribery, and nepotism, at worst.”

That was obviously the case in Illinois. Already under federal investigation, then-Gov. Rod Blagojevich became a national name only after Barack Obama’s ascension to the White House. Left with the task of filling Obama’s seat, Blagojevich tried using the “!@#$ golden” open position to enhance his own financial position. And while Blagojevich’s political career is now over, his chosen senator — Roland Burris — continues to serve.

Burris is the only one of the six 2008-09 appointments tainted by corruption, but he isn’t the only one with some bizarre strings attached. As Feingold has said, the problem isn’t with these individuals, but with the way they came to power.

Take New York, where David Paterson — who become governor only after Eliot Spitzer resigned in 2008 and has yet to earn election in his own right — selected state Rep. Kirsten Gillibrand to replace Hillary Clinton when Clinton joined the Cabinet. Gillibrand is generally considered to the right of her Democratic constituents, but her incumbency has gotten the national party’s support and money behind her early — so much so that state Rep. Carolyn Maloney ended a primary bid despite July polls that showed her leading Gillibrand by six points. In other words, even though she’s at least competitive with voters, Maloney didn’t think she could overcome the unelected choice of an unelected governor.

Or take Florida, where first-term Republican Martinez — who had already announced he would not seek re-election — abruptly resigned his seat midterm in August. The choice of appointment then fell to Gov. Charlie Crist, an obvious conflict of interest given Crist was already a declared candidate for the 2010 seat. So Crist, who admirably passed on the chance to just appoint himself, was put in the uncomfortable position of either choosing someone he’ll have to run against or someone who will step aside for him.

While a federal office, the rules for Senate replacements also vary wildly from state to state.

When Sen. Craig Thomas (R-WY) died in 2007, state law limited the Democratic governor’s choices to three candidates nominated by the state Republican Party. (He eventually settled on John Barrasso, who successfully defended his seat in November). Last week, Sen. Ted Kennedy made headlines for asking for an amendment to Massachusetts’s law to allow for an interim replacement if he has to resign his seat for health reasons. Even the rules for term length vary. While Gillibrand will be running for only a two-year term in 2010 (to finish out Clinton’s term) and would have to run again in 2012, Sen. Michael Bennett (D-CO) — appointed to replace another Obama Cabinet member, Ken Salazar — will be running for a full six-year term in 2010.

Altering the Constitution, of course, is not something that should be taken lightly. But standardizing this process and giving voters final say is an alteration that deserves widespread support. Since entering the Senate, Feingold has consistently shown that he cares more about good government than what’s good for his electoral prospects, whether trying to improve how campaigns are financed or standing up as the only senator with the foresight to vote against the Patriot Act. This amendment is another example of putting country before party, as four of the current appointments owe their jobs to fellow Democrats — Obama, Clinton, Salazar, and Joe Biden — getting promoted. Both parties should endorse it.

This isn’t another divisive amendment designed to fire up voters. It’s simply a modest step to empower them.

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