The 2008 presidential election created four vacancies in the U.S. Senate: Barack Obama and Joe Biden left open seats in Illinois and Delaware; the new secretary of state, Hillary Clinton, opened up a spot in New York; and of course, Sen. Ken Salazar was nominated as secretary of the interior, paving the way for Gov. Bill Ritter to appoint Michael Bennet, former head of the Denver Public Schools.
In each case, the state’s governor is designated by law to fill the open position, giving one person the awesome power to make a decision typically wielded by millions of voters. Although it’s rare, in our system of government it’s an unusual allocation of influence.
Or is it?
Actually, prior to the passage of the 17th Amendment to the U.S. Constitution in 1913, U.S. senators were not elected by voters. That power was given to the small number of people serving in state legislatures.
In so doing, the framers of the Constitution were attempting to deal with a practical consideration in 1789. They hoped to make the federal system more palatable to states skeptical of ceding too much control to the federal government, which in turn ensured those states would vote to ratify the Constitution. They also believed that by insulating U.S. senators from the voting public, senators would be more likely to focus on policy than pleasing the masses.
The framers’ vision was tested before and during the Civil War, when internal disputes over slavery divided state legislatures. In the mid-1850s, for example, Indiana had only one seat in the Senate for two years because pro-slavery Democrats and anti-slavery Republicans couldn’t agree on a person who could represent both sides on the most pressing issue of the day.
After the Civil War, corruption infected the process, with nine cases of bribery between 1866 and 1906. In a book called “The Battle for Butte” by Michael Malone, there’s a photograph of an envelope filled with thousand-dollar bills that was used to bribe a member of the Montana legislature by mining baron and Senate candidate W.A. Clark.
According to the U.S. Senate’s website, “forty-five deadlocks occurred in twenty states between 1891 and 1905, resulting in numerous delays in seating senators. In 1899, problems in electing a senator in Delaware were so acute that the state legislature did not send a senator to Washington for four years.”
With dysfunction becoming common in the Senate selection process, momentum built for direct elections. Oregon was the first state to turn the decision over to voters in 1906, using a combination of state referendum and legislative action. The 17th Amendment, which provided for direct election of all U.S. senators, was proposed in 1912 and adopted in 1913. And since that time, U.S. senators have been elected by voters rather than legislatures.
And so, as strange as it may seem in 2008, gubernatorial appointments of U.S. senators are actually not too far off from the original process set forth in the Constitution. Yet even with gubernatorial appointments, there’s a check built into the system: In the next general election cycle, voters have an opportunity to consider and, if they wish, overrule the governor’s decision. A Senate seat belongs to the people, after all.
Rob Witwer, who grew up in Evergreen and currently lives in Genesee, is a former member of the state House of Representatives.