BY DANNY M. ADKISON

Recently we learned that Rod Blagojevich, governor of Illinois, may have been auctioning off the U.S. Senate vacancy created when Barack Obama resigned from the Senate following his election to the presidency.

Have you ever heard of a governor using his appointment power to fill a vacancy in the U.S. House? Why not?

The answer can be traced back to the constitutional design of the Framers. It also deals with an amendment to the Constitution. And as always seems to be the case, James Madison is not only involved but – had the majority of states listened to him – Blagojevich would probably not be facing a possible prison sentence.

THE GOAL: EQUALITY OF THE STATES

Most people are taught that the Framers created the U.S. Senate as part of a great compromise to have the membership of one branch of the Congress based on population [the House] and the second with membership based on state sovereignty.

This is easily disproved. In the first week of the Constitutional Convention, Madison proposed a bicameral congress. Under his proposal, each chamber would have been based on population.

So, it is obvious that a bicameral congress was not the product of a compromise. It was proposed due to a theoretical support for bicameralism.

Only later in the convention did some states rightists decide to use the theory of bicameralism [nearly universally accepted during our founding period] to arrange for each state to have an equal vote in the Senate.

A sovereign body does not recognize any other body as higher in authority. The states rightists at the convention viewed the design of the Senate, with each state having an equal vote, as a way of institutionalizing the sovereignty [and hence, equality] of states.

HUE AND CRY OVER ELECTORAL COLLEGE

It worked. Not only that, it has been literally untouchable since. The recent presidential election proves the point [a timely one since electors recently met in their respective state capitals to cast their votes for president and vice president].

Since the presidential election, newspapers have run articles explaining it is finally time to abolish the Electoral College. The most frequently given and most obvious criticism of the Electoral College is that states are not given a vote based solely on the number of residents in the state. Each state also gets two electoral votes based on its representation in the Senate.

Thus, it is true that the Electoral College does not reflect just people. It also reflects statehood.

The next time you hear someone voice this criticism, try this: Ask them if they are prepared to not only abolish the Electoral College, but also abolish the U.S. Senate. That institution doesn’t represent people either – it represents statehood.

CREATED TO ‘CHECK’ THE HOUSE

There is more behind the Senate, but essentially the Framers wanted an institution that would, in various ways, be different from the House. That would create a greater tendency to “check” the House. That has also worked [witness the recent disagreement over the car manufacturers’ bailout].

Two differences pertinent to the discussion here are the different terms given senators [six years] compared to the House [two years], and different modes of election. Under the Constitution of 1787 U.S. senators were selected by state legislatures [House members elected by voters].

More to the point, these two differences explain why the Framers chose to deal differently with vacancies in these two chambers.

The Framers also addressed how to fill vacancies in the House and Senate. In the House, they specified that vacancies would be filled by election. They realized, however, that the selection of senators by state legislatures could result in long delays in the filling of Senate vacancies.
Hence, the desire to have a different method for filling senate vacancies.

MADISON WANTED ELECTIONS

When this came up late at the convention, Madison had the right idea. He basically proposed that elections still be the method of choice for filling Senate vacancies, but with the possibility of the state’s executive filling the method if, otherwise, the vacancy would be unreasonably delayed.

When this was reported out of committee, the emphasis was shifted back to the executive [with no apparent reason]. The delegates didn’t view the switch as important and adopted this proposal.

When the Seventeenth Amendment, which provided for popular election of senators, was proposed and adopted during the Progressive Era, one section followed Madison’s lead and mentioned filling Senate vacancies by election but with the possibility of governors making temporary appointments. But the damage of over 100 years of precedent had been done.
Currently, only three states do not allow the governor to make temporary appointments to the U.S. Senate.

TIME TO MAKE THE CHANGE

Madison’s protege at the Constitutional Convention, who no doubt also expressed Madison’s point of view, stated it best when he argued that allowing a state’s governor to make appointments to the Senate “removes the appointment too far from the people.”

The constitutional deadwood concerning governors filling Senate vacancies need not be removed by the difficult process of amending the Constitution. Thankfully, the Seventeenth Amendment already has wording that would allow every state to withhold such power from their respective governors.

Now, as Blagojevich’s actions prove, is the time for the remaining 47 states to do so.

– Danny M. Adkison teaches constitutional law at Oklahoma State University and is a regular contributor to The Oklahoma Observer