Governor Blagojevich and the Seventeenth Amendment

Edward A. Zelinsky is the Morris and Annie Trachman Professor of Law at the Benjamin N. Cardozo School of Law of Yeshiva University. He is the author of The Origins of the Ownership Society: How The Defined Contribution Paradigm Changed America.  In this article, Professor Zelinsky discusses the recent arrest of Illinois Governor Rod Blagojevich and the public maneuvering in New York for Hillary Clinton’s Senate seat. He concludes that the Seventeenth Amendment of the U.S. Constitution should be amended to eliminate gubernatorial appointments of temporary U.S. Senators.  Be sure to check back next month for another installation of EZ Thoughts.

The arrest of Illinois Governor Rod Blagojevich, along with the public maneuvering in New York for Hillary Clinton’s Senate seat, have focused attention on one of the anomalous features of the U.S. Constitution: the power of state governors to select interim U.S. Senators. While that gubernatorial power made sense two hundred years ago, it is not appropriate today. The Seventeenth Amendment of the Constitution should be amended to eliminate gubernatorial appointments of temporary U.S. Senators.

Originally, the Constitution authorized state legislatures to elect U.S. Senators. In this earlier age, transportation and communication were primitive by modern standards. It was difficult for state legislatures to convene and legislatures met less frequently than they do today. In this environment, if a U.S. Senator died or resigned, it was onerous, sometimes impossible, for the legislature to convene in a timely fashion to fill the resulting senatorial vacancy. It was thus sensible to authorize the governor to fill a Senate vacancy temporarily until the legislature could meet to elect a new senator.

Without that gubernatorial authority, it was possible under these pre-modern conditions for a U.S. Senator to die or resign while his state’s legislature was adjourned and for that state to consequently lack full representation in the Senate for an extended period. A temporary gubernatorial appointment was a sensible way to reduce this gap in senatorial representation until the legislature met to elect a new U.S. Senator.

The Seventeenth Amendment to the Constitution switched the selection of U.S. Senators from the legislatures to popular election. This Amendment should have ended the tradition of interim gubernatorial appointments in favor of immediate special elections to fill senatorial vacancies. Such special elections have always been the method for filling vacancies in the House of Representatives. Once Senators were also elected popularly, special elections likewise became the logical method of filling vacancies in that chamber.

Instead, the Seventeenth Amendment retained the option of gubernatorial appointments of temporary U.S. Senators, though the justification for such appointments – the difficulty of convening state legislatures in an earlier age – had long disappeared. Recent events in Illinois, as well as the well-publicized efforts to influence New York Governor David Paterson’s appointment of Senator Clinton’s successor, highlight the mistake in retaining the once prudent provision for gubernatorial selection of interim U.S. Senators.

In the modern age, it is anomalous for governors to continue to appoint temporary U.S. Senators, a vestigial power reflecting the primitive communications and transportation of an earlier period when legislatures picked U.S. Senators. When a Senate vacancy occurs today, the voters should immediately replace their U.S. Senator through a special election. The Seventeenth Amendment should be amended to eliminate gubernatorial appointments of temporary U.S. senators.

If that happens, Governor Blagojevich will have inadvertently helped to improve the U.S. Constitution.