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Appointing Senators, Be They Republicans or Democrats, Is Wrong

Massachusetts Governor Deval Patrick has rejected former Congressman Barney Frank’s request that he be appointed to fill the vacancy created by Massachusetts Governor Deval Patrick. (Photo: Rappaport Center via Flickr)Senator John Kerry’s resignation to serve as secretary of state. Despite the fact that progressive groups urged the Frank pick for the temporary slot—arguing that the former congressman could play a critical, perhaps definitional, role in budget fights over cutting Pentagon waste and taxing speculators—the governor instead picked his former chief of staff.

The new senator, William “Mo” Cowan, has long been close to the governor, having formerly served as Patrick’s legal counsel. He’s experienced, capable and politically connected, a well-regarded lawyer who has worked not just with Patrick but also with former Governor Mitt Romney (whom Cowan helped identify judicial picks). He’ll be the state’s second African-American senator, after liberal Republican Ed Brooke, who served in the 1960s and 1970s. As a lawyer, Cowan has been active with the American Constitution Society—joining in the society’s “work  to advance the progressive values and principles of the U.S. Constitution”—which counts for a lot with Americans who seek to challenge right-wing judicial activism.

But, as with his selection of former Democratic National Committee Paul Kirk to fill the interim vacancy created by the death of Senator Edward Kennedy, Patrick has gone with a connected insider rather than someone who is likely to shake things up in the Senate.

Patrick says he’s now got “a valued ally” in the Senate.

And there is no reason to doubt that this is the case.

But, of course, this is the problem with letting governors, be they Republicans or Democrats, appoint US senators. The Massachusetts circumstance is less troublesome than in states such as Hawaii and South Carolina, which will be represented for more than two years by recently appointed senators. A special election in June will replace Cowan with a senator chosen by the voters.

But gubernatorial appointments of senators, be they for a few months, or for a few years, make the United States Senate, never a perfectly representative body, a good deal less representative.

Cowan will join three appointed senators in the chamber during what Barney Frank correctly identified as a particularly critical period in the chamber.

Another new senator, Tim Scott, has been appointed by South Carolina Governor Nikki Haley, rather than elected by the people of that state. The same goes for Brian Schatz, Hawaii Governor Neil Abercrombie’s pick to fill the vacancy created by the death of Senator Dan Inouye.

Cowan, Schatz and Scott come from different parties and different ideological backgrounds. There is every reason to believe they will serve honorably, and ably. Progressives are already excited by some of what Schatz has done, while conservatives are enthusiastic about Scott.

But none of these details change the fact that a trio of unelected senators will be powerful, perhaps even definitional, figures in what is supposed to be a representative body. They will play critical roles in deciding whether to approve or reject cabinet nominees and Supreme Court selections, they will vote on tax policies and budget measures and they will decide whether to crack the “debt ceiling”—or send young men and women off to war. But they will do so without democratic legitimacy.

No member of Congress should serve without having been elected by the people of the district or state they represent.

Unfortunately, the new Senate will have at least three members who serve not as representatives but as mandarins—appointees assigned to positions by governors who have assumed dubious authority.

The point here ought not be to do disparage Cowan, Shatz or Scott.

The point is to raise a concern about the fact that more laws will be proposed, more filibusters will be sustained, more critical votes will be tipped in one direction or another by “senators” who never earned a single vote for the positions they are holding.

Why?

Because of a deliberate misreading of the vague 1913 amendment to the US Constitution that replaced the old system of appointing senators with one that said they were all supposed to be directly elected.

The Seventeenth Amendment sought to end the corrupt, and corrupting, process of appointing senators. But a loophole was included to give governors the authority to make temporary appointments. That meant that, while no one has ever been allowed to serve in the US House of Representatives without having first been elected, dozens of men and women have served in the Senate without having been elected. And those appointed senators often serve for two full years, as will South Carolina’s Scott and Hawaii’s Senator Schatz, both of whom will serve until at least 2015. To the end of the 113th Congress, senators chosen by individual governor in South Carolina and Hawaii will have the same authority as a senator elected by 7,748,994 voters (California Democrat Dianne Feinstein).

Former House Judiciacy Committee Chairman John Conyers Jr. (D-MI), rightly points out that this is a fundamental voting-rights issue. It is, as well, a question of “basic consistency in how our Representatives in Congress are elected.” Says Conyers: “The Constitution has always required that House vacancies be filled by election. The Senate should not be subject to a different standard. Americans should always have a direct say in who represents them in Congress—in both Houses, all of the time.”

Conyers was a key House backer of former US Senator Russ Feingold (D-WI), when the then-chairman of the Senate Judiciacy Committee’s subcommittee on the Constitution tried to amend the Constitution to address the problem.

Feingold’s proposal, which would have required special elections to fill all Senate vacancies, got a little bit of traction when Feingold was still serving in the Senate. In 2009, the Senate Judiciary Subcommittee on the Constitution approved Feingold’s proposed amendment to end gubernatorial appointments to vacant Senate seats.

Recalling a series of appointments following the 2008 election, Feingold said: “I applaud my colleagues on the subcommittee for passing the Senate Vacancies Amendment, which will end an anti-democratic process that denies voters the opportunity to determine who represents them in the US Senate. The nation witnessed four gubernatorial appointments to Senate seats earlier this year, some mired in controversy, and we will soon see another one in Texas. This will leave more than 20 percent of Americans represented by a senator whom they did not elect.”

Senate Majority Leader Harry Reid (D-NV), was not enthusiastic about the amendment. He defended the appointment of senators, saying, “In the state of Nevada the governor appoints. Even though we have a Republican governor now I think that’s the way it should be so I don’t support his legislation.”

No one with a taste for democracy can possibly respect the majority leader’s position on appointed senators.

More thoughtful senators, including the number-two Democrat in the chamber, Illinoisan Dick Durbin, co-sponsored Feingold’s amendment.

Reid got that one wrong. Feingold got it right.

“It is time to finish the job started by the great progressive Bob La Follette of Wisconsin to require the direct election of senators,” the former senator from Wisconsin said in 2009. “No one can represent the American people in the House of Representatives without the approval of the voters. The same should be true for the Senate. I hope the full Senate Judiciary Committee will soon get the chance to consider this important constitutional amendment to entrust the people, not state governors, with the power to select U.S. senators.”

The worst deficit facing America is the democracy deficit.

It can be addressed, at least in part, by making the Senate a representative chamber.

Feingold can’t complete the process he began. But his former colleagues, led by Dick Durbin, should do so. As Durbin said several years ago when he chaired a hearing on the issue: “Over a half century ago, Prime Minister Winston Churchill famously said: ‘No one pretends that democracy is perfect or all-wise. Indeed it has been said that democracy is the worst form of Government except all those other forms that have been tried from time to time.’ The same might be said of special elections to fill vacant U.S. Senate seats—they are the worst way to fill such seats, except for all the others.”