Everybody who voted for Roland Burris, raise your hand. Ok, only
one hand went up, and that one is wearing handcuffs. Thanks, Blago.
For some reason, the only people who talk about the Seventeenth Amendment -- adopted in 1913 to establish the direct election of United States senators by popular vote, rather than by state legislatures -- are those who cherish the crazy dream of repealing it
. (That's a subject for a later post.) Very seldom do we have a serious discussion of what's really wrong with it.
A recent case
in the Seventh Circuit Court of Appeal, however, may offer courts a
chance to examine the amendment's meaning and its purpose. Though
legislatures have found ways to thwart it, the amendment was designed
to make the Senate a body elected by the people.
The case, Judge v. Backer
is one in which I played a small role as a consultant for the
plaintiffs. It arises aftermath of the 2008 elections, when the
flamboyantly corrupt Illinois Gov. Rod Blagojevich was trying to auction off the Senate seat
vacated by Barack Obama. Eventually, he awarded it to the pathetic Roland Burris.
surprise there. Most people believe that the Seventeenth Amendment
"gives" governors the power to name senators to serve the remainder of
a senatorial term when the office is vacated by death or resignation.
1. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof ....
When vacancies happen in the representation of any State in the Senate,
the executive authority of each State shall issue writs of election to
fill such vacancies: Provided That the legislature of any State may
empower the executive thereof to make temporary appointments until the
people fill the vacancies by election as the legislature may direct.
Read carefully. The Senate "shall be composed of Senators ... elected
by the people" of each state. That's the underlying policy of the
amendment. How is that policy to be carried out? If a vacancy occurs,
the "executive authority" (governor) of a state "shall" (not "may")
call an election. If the state legislature chooses, it "may empower"
the governor to make "temporary appointments." The appointee then serves until "the people fill the vacancies by election
as the legislature may direct." (By contrast, House seats were and are
required to be filled by elections called by "writs of election"; not
even Blago could find a way to auction off a House seat.)
The original Article I
governors the power to fill vacancies when the state legislatures were
not in session. As Edward A. Zelinsky of Cardozo Law School recently pointed out
the senatorial appointment provision made sense in the eighteenth
century, when legislatures met rarely and senators represented states,
not people. Today it's an anomaly. No other high office in any branch
of the federal government can constitutionally be given (or sold) by
After the amendment was
approved, many states gave their governors power to appoint. If only
two years ramian in the unexpired term, some states allow the governor
simply to fill the Senate seat for the rest of the term. This violates
the text: it says that (1) the governor shall make a "temporary"
appointment (2) until the people fill the vacancies (3) by election (4)
as the legislature shall direct.
direct way to read this is that when a vacancy occurs, the governor
must schedule a special election, and may if allowed by state law
appoint a temporary senator to serve until that election. The
legislature may pass laws governing the timing of such an election; if
they don't, the governor will schedule it by "writ of election" (an
English writ calling a vote at a specific time and place). The
amendment--as I read it, at least--doesn't give anyone the power to
fill the vacancy by appointment for the rest of the term. That wouldn't
That brings us to Illinois 2009. When Blago named Burris, I suggested
the legislature could cut short Burris's term by scheduling a special
election. Republicans in the Illinois legislature requested an opinion
from Attorney General Lisa Madigan, who responded
"neither the Federal Constitution nor the Illinois Constitution
prohibits such a law. Indeed, a law providing the people of Illinois
with an opportunity to elect a U.S. Senator would be entirely
consistent with the purpose and text of the Seventeenth Amendment."
The Democratic majority in the Illinois legislature blocked the bill
, however; too much chance that the seat might pass out of their hands.
this point, a group of Chicago progressive lawyers* filed a lawsuit on
behalf of two frustrated voters demanding a special election. (Here's
where I come in, providing, at their request, pedantic historical
nuggets and impractical advice). Even in the absence of a statute, they
argued, the governor was required to issue a writ of election. Letting
Burris serve out the entire term violated that constitutional duty.
trial judge ruled against the voters; but in an opinion issued last
week, the Seventh Circuit handed them something of a victory. In an
opinion by Judge Diane Wood
, the court wrote that
second paragraph of the Seventeenth Amendment establishes a rule for
all circumstances: it imposes a duty on state executives to make sure
that an election fills each vacancy; it obliges state legislatures to
promulgate rules for vacancy elections; and it allows for temporary
appointments until an election occurs. This demarcation of
constitutional powers and duties between state executives and state
legislatures advances the Seventeenth Amendment's primary objective of
guaranteeing that senators are selected by the people of the states in
technical reasons, the court did not order an election, but simply sent
the case back to the trial court to permit argument by the two sides.
That may very well of course take longer than the time between now and
But regardless of the practical
result, what's important is that a court for the first time has taken
seriously the amendment's preference for popular election. In a 1969
case called Backer v. Rockefeller,
Supreme Court had apparently indicated that Seventeenth Amendment
special-election cases do not post a "substantial federal question."
But that case was simply a one-sentence "summary affirmance" of a
lower-court opinion, and no one really knows whether that's what the
Court meant. The Seventh Circuit panel has reopened the issue.
worst feature of the Seventeenth Amendment may finally undergo judicial
examination. Governors and legislatures routinely game the system. The
reasons are usually more genteel that Blagojevich's--but they are
anti-democratic and partisan to the core. (They are also usually bad politics.
In Massachusetts, for example, the legislature stripped Republican Gov.
Mitt Romney of his appointive power, then restored it to Gov. Deval
Patrick so a safe Democratic vote could be installed when Sen. Edward
Kennedy died. Alaska Gov. Frank Murkowski appointed his own daughter.
The parties will keep gaming--that's what they do, for heaven's
sake--unless the people require special election as soon as possible
after a vacancy occurs.
Sen. Russell Feingold has proposed such a constitutional amendment.
It will go nowhere. It's not needed, though; state legislatures can
abolish gubernatorial appointment whenever they choose. Two have--and
they all should.
In a later post, I will
discuss the faux historical arguments of the Becks and Wills, and the
serious arguments of those who want to change the United States back to
an elite republic. But as far as I'm concerned, the real problem with
the Seventeenth Amendment is not that it's too democratic, but that
it's not democratic enough.