At least prior to the ratification of the 17th Amendment in 1913, state legislatures composed of dozens of citizens chose Senators. Nowadays, in 46 states, just one person the governor picks an interim Senator when a vacancy occurs.
In the wake of the embarrassing process that unfolded this year in New York and, especially, Illinois, Sen. Russ Feingold (D-Wis.) has proposed a constitutional amendment requiring special elections to fill vacancies.
We support it mainly, as Feingold said, because its an extension of the democratic spirit of the 17th Amendment itself, which provided for the direct election of Senators by the people, not legislatures.
The amendments drafters seem to have anticipated that, when a vacancy occurred, it would be filled by special election, as the Constitution requires in the case of House vacancies. But they added the proviso that the legislature of any state may empower the executive thereof to make temporary appointments until an election occurs.
All but four states took up the gubernatorial option: Wisconsin and Oregon, which outright required special elections, and Oklahoma, which requires them unless the vacancy occurs after March 1 of an election year.
Massachusetts hastily joined the special election club in 2004 not for democratic reasons, but Democratic ones. Its legislature feared that, if Sen. John Kerry (D-Mass.) got elected president, Republican Gov. Mitt Romney might name his replacement.
Five other states require the governor to make an appointment of the original Senators party.
This year, we favored the seating of Sen. Roland Burris (D-Ill.) because he was legally appointed by Gov. Rod Blagojevich (D). Disgraceful, allegedly criminal, conduct trying to sell the Senate appointment for campaign cash did not nullify the governors authority.
But he should not have had the authority, as even the states senior Senator (and Democratic Whip) Dick Durbin originally opined. It was only when Illinois Democrats realized that a Republican might win the seat that they dropped the idea of a special election.
Over the past 96 years, about 184 people have been appointed to the Senate, counting newly sworn-in Sen. Kirsten Gillibrand (D-N.Y.). Some developed into powerhouses, including Arthur Vandenberg (R-Mich.), Sam Ervin (D-N.C.), Harry F. Byrd (D-Va.), William Knowland (R-Calif.), Walter Mondale (D-Minn.) and George Mitchell (D-Maine).
But all of them did so because they got elected in their own right. Two-thirds of the appointees either got defeated in their attempts to keep the seat or decided not to run. The latter category includes some place-holders, such as former Sen. Benjamin Smith (D-Mass.), appointed in 1960 to fill out President-elect John F. Kennedys term and, apparently, Delawares new Senator, Ted Kaufman (D).
We have no idea whether new Sens. Burris, Gillibrand, Michael Bennet (D-Colo.) or, possibly, Kaufman will go on to distinguished Senate careers. But, as soon as possible, before the memory of Rod Blagojevich fades, Congress should send the states a 28th Amendment and let the people elect their own Senators.