Feingold Amendment Could Shortchange Senate Representation

President Barack Obama's economic summit (of sorts) with lawmakers and others this week turned into the closest thing to a parliamentary question period as we have seen in American government. He conducted a sort of teach-in that had even House Minority Whip Eric Cantor (R-Va.) marveling at his openness and equanimity--in the face of the likelihood, if not certainty, that House Republicans will reflexively vote against him unanimously or nearly so time and again.

Appointments to the Senate are now pariahs to many Senators.

It was marvelous to behold--and suggests that maybe the president should take the next logical step: real question periods. I will follow up with a more complete exegesis on what the question period is, and why it might be applied with suitable variations to the United States.

But imagine the public fascination with the idea of a president going into the well of the House chamber, surrounded by 535 legislators, taking their questions and giving responses for an hour in prime time, perhaps every month or two. What an opportunity to educate voters about the problems facing the country and the options that both parties have to deal with them--and in some cases to show why there is bipartisan support for some tough actions.

But the full topic of the day flows from the Sen. Roland Burris (D-Ill.) embarrassment, the stinking gift that keeps on giving. The Burris case shows all the flaws that can flow from an appointment process, when you put together a corrupt governor trying to extract as much as he can from the prize of a Senate seat and a claimant to the office willing to do a lot, including deceiving the state Legislature and the Senate to get the nod.

From the Blago/Burris shame to the David Paterson/Caroline Kennedy farce in New York, appointments to the Senate are now pariahs to many Senators and to the editorial writers at the Washington Post and New York Times, among others. Support for Sen. Russ Feingold's (D-Wis.) proposed constitutional amendment to require elections to fill all Senate vacancies has been growing inside and outside the Senate.

Earlier, I wrote briefly about the Feingold amendment, saying I could support it if he included an exception for catastrophes--if large numbers of Senate seats were left vacant because of a devastating attack on Washington, D.C., or on the Senate specifically. We cannot afford to have a nonfunctioning Senate that cannot operate for months because it falls below the constitutional quorum requirement of half its Members. That remains a huge problem with the House of Representatives.

Since I wrote that, the Senate has had its series of votes on the stimulus package, which required 60 votes to secure final passage. With the Minnesota Senate seat still vacant because of the Norm Coleman/Al Franken trial, and with Sen. Edward Kennedy (D-Mass.) unable to make the final vote, Majority Leader Harry Reid (D-Nev.) had to hold the vote open until late into the night so that Sen. Sherrod Brown (D-Ohio) could make it back from Cleveland, where he was attending his mother's wake.

That situation underscored for me the problem with having lengthy Senate vacancies. Especially in the contemporary Senate, where the key number is 60, whether because of the need to achieve cloture or the need to deal with budget rules, every seat matters and every vote counts. At the beginning of the Obama administration, there were several vacancies to fill, thanks to the election of Obama as president and Joseph Biden as vice president, the president's choice of Senators for some Cabinet posts and the Minnesota controversy.

If the Feingold amendment had been a part of the Constitution, one of two situations would have prevailed: Either the Senate would have had 95 Members, with all five of the vacancies coming from the Democratic camp, or Obama would have eschewed the excellent choices of Hillary Rodham Clinton as secretary of State and Ken Salazar as secretary of the Interior. Neither is a good outcome.

With 95 Senators, the cloture bar would be reduced to 57 (it is three-fifths of the Senate, not a straight 60 votes). But 60 votes are required to waive budget rules, reducing sharply the ability to get things done. Reducing a president's options for top appointments by making the choice of a Senator more painful to accept is not a good idea. And if you add in the possibility that there would be other vacancies caused by health problems, the Senate could be paralyzed simply by a series of vacancies lasting for months. This is a big problem in a body with only 100 Members; it is much less a factor in the 435-Member House, where a few vacancies are much less likely to be pivotal.

Special elections, if they are going to be meaningful, with the opportunity for parties to choose good nominees and for voters to examine their choices carefully, will take at least three months. It takes that long for election officials to prepare to run an election, including securing polling places and getting poll workers and ballot stock. A far better way to change the current process, which does have corrupting potential, would be to allow states to have executive appointments up to the point of special elections--in other words, for three or four months at most.

That would resolve my continuity concerns, and it would also reduce any incumbency advantage for an appointee. It would reduce the possibility of a Big Apple circus, a drawn-out farce of a selection process, because the choice would be less fateful since spurned candidates could run in the special election. A Kirsten Gillibrand might have refused an appointment under those circumstances, not wanting to trade a long-term career in the House for a few months in the Senate, but been willing to run in the special election that would follow, since she wouldn't have to give up her seat to do so. That might mean a slew of candidates in the special election, but that is fine; it would also be the case under the Feingold amendment as drafted.

Feingold has a point about the problems with Senate appointments. But it would be best to find an appropriate balance that reduces the prospects of corruption or embarrassment while making sure that the Senate can operate as a full, representative body at all times.

Norman J. Ornstein is a resident scholar at AEI.

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Norman J.
  • Norman Ornstein is a long-time observer of Congress and politics. He is a contributing editor and columnist for National Journal and The Atlantic and is an election eve analyst for BBC News. He served as codirector of the AEI-Brookings Election Reform Project and participates in AEI's Election Watch series. He also served as a senior counselor to the Continuity of Government Commission. Mr. Ornstein led a working group of scholars and practitioners that helped shape the law, known as McCain-Feingold, that reformed the campaign financing system. He was elected as a fellow of the American Academy of Arts and Sciences in 2004. His many books include The Permanent Campaign and Its Future (AEI Press, 2000); The Broken Branch: How Congress Is Failing America and How to Get It Back on Track, with Thomas E. Mann (Oxford University Press, 2006, named by the Washington Post one of the best books of 2006 and called by The Economist "a classic"); and, most recently, the New York Times bestseller, It's Even Worse Than It Looks: How the American Constitutional System Collided With the New Politics of Extremism, also with Tom Mann, published in May 2012 by Basic Books. It was named as one of 2012's best books on pollitics by The New Yorker and one of the best books of the year by the Washington Post.
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