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.J. RES. 7 AND H.J. RES. 21: A CONSTITUTIONAL AMENDMENT 

CONCERNING SENATE VACANCIES 

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54–105 PDF 2010

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 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

RON WYDEN, Oregon 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

ARLEN SPECTER, Pennsylvania 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

JEFF SESSIONS, Alabama 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

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 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

EDWARD E. KAUFMAN, Delaware 

TOM COBURN, Oklahoma 

ARLEN SPECTER, Pennsylvania 

LINDSEY O. GRAHAM, South Carolina 

JOHN CORNYN, Texas 

ROBERT F. SCHIFF, Democratic Chief Counsel 

BROOK BACAK, Republican Chief Counsel 

(III) 

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

STEVE COHEN, Tennessee 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

PEDRO PIERLUISI, Puerto Rico 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

CHARLES A. GONZALEZ, Texas 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

LINDA T. SA ́ NCHEZ, California 

DEBBIE WASSERMAN SCHULTZ, Florida 

DANIEL MAFFEI, New York 

[Vacant] 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

DANIEL E. LUNGREN, California 

DARRELL E. ISSA, California 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio 

TED POE, Texas 

JASON CHAFFETZ, Utah 

TOM ROONEY, Florida 

GREGG HARPER, Mississippi 

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 

ROBERT C. ‘‘BOBBY’’ SCOTT, Virginia 

WILLIAM D. DELAHUNT, Massachusetts 

HENRY C. ‘‘HANK’’ JOHNSON, JR., 

Georgia 

TAMMY BALDWIN, Wisconsin 

JOHN CONYERS, JR., Michigan 

STEVE COHEN, Tennessee 

BRAD SHERMAN, California 

SHEILA JACKSON LEE, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

TOM ROONEY, Florida 

TRENT FRANKS, Arizona 

STEVE KING, Iowa 

JIM JORDAN, Ohio 

LOUIE GOHMERT, Texas 

DAVID LACHMANN, Chief of Staff 

PAUL B. TAYLOR, Minority Counsel 

(V) 

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 

Page

VI 

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, Cochairman, 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 

(1) 

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 

2 

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. 

3 

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. 

4 

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 threefourths 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, 

5 

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 

6 

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. 

7 

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. 

8 

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 citizenrun 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 reelection 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 

9 

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. 

10 

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 

11 

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 

12 

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 

13 

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. 

14 

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 

15 

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 

16 

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 

17 

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. 

18 

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 elecVerDate Nov 24 2008 11:40 Jan 06, 2010 Jkt 054105 PO 00000 Frm 00026 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54105.TXT SJUD1 PsN: CMORC
19 

tion. 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 

20 

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 busiVerDate Nov 24 2008 11:40 Jan 06, 2010 Jkt 054105 PO 00000 Frm 00028 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54105.TXT SJUD1 PsN: CMORC
21 

ness 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 

22 

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 introVerDate Nov 24 2008 11:40 Jan 06, 2010 Jkt 054105 PO 00000 Frm 00030 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54105.TXT SJUD1 PsN: CMORC
23 

duced 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 nowSenator 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. 

24 

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. 

25 

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. 

26 

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 CODIRECTOR, STANFORD LAW SCHOOL SUPREME COURT LITIGATION CLINIC 

Ms. KARLAN. Thank you, Mr. Chairman. It is an honor to be 

here. 

27 

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 

28 

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 nonexistent. 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 21⁄2 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 

29 

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 

30 

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. 

31 

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 

32 

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? 

33 

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 

34 

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. 

35 

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 

36 

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 litiVerDate Nov 24 2008 11:40 Jan 06, 2010 Jkt 054105 PO 00000 Frm 00044 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\54105.TXT SJUD1 PsN: CMORC
37 

gation 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? 

38 

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 

39 

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. 

40 

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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Æ 


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