Should Governors Fill U.S. Senate Vacancies?

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Ted Kennedy's death surfaces once again the issue of how states deal with Senate vacancies. Massachusetts happens to be one of just five states that require a special election and do not allow a governor to appoint a temporary replacement (the other four are Connecticut, Oklahoma, Oregon and Wisconsin). Of the remaining states, 35 allow the governor to fill the seat until a subsequent general election, while 10 combine a gubernatorial appointment with provisions for a special election.

Here in Tennessee the governor appoints a replacement without restrictions until the next general election. The last such occasion was in 1992 when Ned McWherter named his aide Harland Mathews to fill the Senate seat vacated by Al Gore. I say "without restrictions" because four states that allow governors to fill vacancies do so with restrictions on the party of the appointee. In Arizona the governor has to appoint a someone from the same party as the departed senator, and in Hawaii, Utah, and Wyoming the governor must choose from a list of candidates provided by the party of the prior senator.

Some Massachusetts Democrats want to make a quick change to state law to allow Governor Deval Patrick to appoint a successor to Kennedy so that the state will not have diminished representation during what some see as an important stretch of time (health care reform, the climate bill, and so forth). Democrats and liberals obviously have a self-serving interest in seeing such a change and appointment since Patrick, a Democrat, will name a Democrat to the seat.

The Boston Globe sought to make the case for giving Patrick this power in an editorial this morning, arguing with some hyperbole that "there is no mourning period when it comes to ensuring adequate representation for Massachusetts residents in the US Senate." But even the blue-tinted editorialists at The New York Times question the small-d democratic integrity of appointed senators, suggesting that the best approach is an amendment to the U.S. Constitution requiring elections to fill Senate vacancies (Wisconsin Sen. Russ Feingold has introduced just such an amendment).

The Times rightly notes that "special elections put the power where it should be in a democracy -- with the people," but there is a valid case to be made for gubernatorial appointments along with special elections. University of Texas consitutitonal law professor Sandy Levinson offered a brief version of that argument the other day: "Why it is 'democratic' to deprive states of any representation at all for the months required to have a special election is beyond me."

I think Levinson has it more or less right: governors should be able to fill a seat temporarily so that voters are not denied representation for an extended period of time, but under two conditions. First, it makes sense to restrict that appointment power by party as four states already do, and second, there should be a special election if the next general election is more than, say, six months away. This does still present the risk that governors will appoint cronies who then benefit from incumbency, but that risk is minimized by a special election that occurs without excessive delay.

I'm not quite ready, though, to sign on to a proposal by House Republicans that would allow gubernatorial appointments followed by a special election within 90 days. I fear that's too soon: a special election that comes too early will inevitably and disproportionately favor the wealthiest self-funding candidates, who have enough advantages as it is. The Feingold amendment is potentially troublesome for the same reason.

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