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Originally published March 12, 2009 at 12:00 AM | Page modified March 12, 2009 at 9:01 AM

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Amendment would require election to fill Senate vacancies

After a presidential election that helped spark the appointment of four new senators and a burst of related controversy, key lawmakers met Wednesday to mull whether the Constitution should be amended to prevent history from repeating itself.

WASHINGTON — After a presidential election that helped spark the appointment of four new senators and a burst of related controversy, key lawmakers met Wednesday to mull whether the Constitution should be amended to prevent history from repeating itself.

A pair of House and Senate judiciary subcommittees met jointly to debate a proposed constitutional amendment that would end the practice of allowing governors to fill vacant Senate seats, instead requiring that all such openings be filled via election.

Sen. Russell Feingold, D-Wis., sponsor of the amendment, said the change is needed to fix "a constitutional anachronism."

The 17th amendment, ratified in 1913, provides for the direct election of senators — previously, they had been chosen by state legislatures — but also allows states to let governors make "temporary appointments" to fill vacant seats until elections are held.

The Constitution states that elections must be held to fill all House vacancies.

Gubernatorial appointments have gained attention this year with the departures of four senators after the election: President Obama, Vice President Joseph Biden, Secretary of State Hillary Rodham Clinton and Interior Secretary Ken Salazar.

The scramble to replace Obama in Illinois was particularly notorious. Gov. Rod Blagojevich, a Democrat, was accused of trying to sell the seat in exchange for favors and campaign contributions. The embattled governor was eventually impeached and booted from office, but not before he sparked an uproar by naming Democrat Roland Burris to the seat.

New York Gov. David Paterson, before picking Rep. Kirsten Gillibrand to replace Clinton, became embroiled in the highly publicized and ultimately unsuccessful lobbying effort by Caroline Kennedy to get the job.

In Delaware, Gov. Ruth Ann Minner named longtime Biden aide Ted Kaufman with the understanding that he would not run in a special election in 2010, opening the way for Biden's son Beau, the state attorney general, to succeed him.

In Colorado, Democratic Gov. Bill Ritter named former Denver Public Schools Superintendent Michael Bennet to the Senate, even though Bennet had never held elected office. Republicans proposed changing to special elections, but a state Senate panel killed the bill on a party-line vote. Bennet replaced Salazar.

Many, said Rep. David Dreier, R-Calif., sponsor of the amendment in the House, "are understandably outraged at some of the gamesmanship that surrounded the most recent Senate appointments."

According to the National Conference of State Legislatures, governors in 38 states make appointments to fill Senate seats until the next regular scheduled general election.

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Other states, such as Massachusetts, Wisconsin, Oregon, Oklahoma and Alaska, mandate special elections. The remainder have variations where governors make interim appointments followed within a certain time period by elections.

Two states changed their systems in 2004: the Massachusetts Legislature moved to direct elections so that the then-governor, Republican Mitt Romney, couldn't pick a replacement if Democratic Sen. John Kerry won the presidency.

Alaskans approved a ballot initiative on state elections in 2004 after then-Gov. Frank Murkowski, a Republican, appointed his daughter Lisa to fill his vacated Senate seat. Lisa Murkowski captured the popular vote in 2004 to keep the seat.

Problems with the constitutional amendment were raised by several experts testifying at the hearing. They pointed out that it can take months to organize primaries and special elections, depriving states of representation in the meantime, and that turnouts in special elections are usually low.

There's also the difficulty of amending the Constitution, which requires two-thirds majorities in the House and Senate and ratification of three-fourths of state legislatures. Sen. Tom Coburn, R-Okla., noted that there have been more than 5,000 proposed constitutional amendments. So far only 27, including the 10 amendments of the Bill of Rights, have been ratified. Rep. Aaron Schock, R-Ill., proposed a legislative fix that would allow governors or state legislatures to appoint replacements but require a special election within 90 days.

Copyright © 2009 The Seattle Times Company

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