By Marc Korman.
In Parts 1 and 2 we reviewed previous Senate appointments and the current efforts to reform the process. Ending uninhibited gubernatorial appointments is a good idea. But it has to be done right. There are two important issues that need to be factored into any change: continuity of representation and continuity of Congress.
Continuity of representation means the ability of a state or district to have a continuous voice in Congress. One of the strengths of the current Senate appointment process is that vacancies in the 45 states allowing appointments are short-lived. So the residents of a state with a vacancy are not at a disadvantage in Congress.
In the case of Senators of course, two individuals represent each voter in each state, so more often than not they will at least have some representation. Contrast that with the House of Representatives, where each voter only has one representative. There are no appointments to fill House seats, only special elections. That can leave extended periods of time with unrepresented Congressional districts. For example, when Bob Menendez was appointed New Jersey’s US Senator in 2006, his House seat was vacant for nine months.
The point is that any vacancy should be as short as possible so that residents are almost always represented in both Houses of Congress without significant disruption. Delegate Ali’s state bill ensures that by allowing temporary appointments until the results of a special election are certified. The federal reform proposals do not address the issue. The downside to temporary appointments is that they could give whoever is appointed a leg up in a special election. If that creates opposition, then perhaps temporary appointees ability to run could be limited, either by a law or an unofficial agreement as is the current case with the Senate appointee from Delaware.
Continuity of Congress is a more esoteric issue and one we will hopefully never have to deal with. The issue is how the legislative branch recovers from a catastrophic terrorist attack, for example if Flight 93, which crashed in Pennsylvania on 9/11, had crashed into the Capitol and created mass vacancies. For a while after 9/11, the issue received a lot of attention. A Congressional task force examined the issue, Congress actually passed legislation calling for expedited House elections, and a joint Brookings Institute/American Enterprise Institute Commission issued a report.
All of the continuity discussions focused on the House because Senate appointments made that body much easier to reestablish after an attack. But as more states pass Special Election laws or a Constitutional amendment is ratified, that ability becomes less certain.
Again, Delegate Ali’s bill addresses that issue by allowing temporary appointments. If temporary appointments are found to be unacceptable in all circumstances, then perhaps they can be used only in the case of mass vacancies, say if a quarter or more of the Senate is vacant.
There are two main objections I have heard to special elections: lack of participation and cost. It is true that special elections have a much lower turnout than regularly scheduled elections, but in the case of a US Senator the race is high profile enough that the problem is somewhat mitigated. As for cost, it is true that democracy is expensive.
It is time to reform the Gubernatorial process for replacing US senators and move to special elections. But as needed reform moves forward, legislators should remember that continuity of representation and continuity of Congress are important issues too.