As an alternative to the constitutional amendment proposed by Senator Feingold (which would eliminate temporary appointment of Senators to fill vacancies), Congressman Aaron Schock of Illinois has proposed H.R. 899, the Ethical and Legal Elections for Congressional Transitions (or ELECT Act), which would require that special elections to fill senatorial vacancies be held within 90 days. While the ELECT Act would not prevent Governors from making temporary appointments (something that can only be achieved through constitutional amendment), it would greatly diminish the potential significance of such appointments.
Over at Election Law Blog, Rick Hasen questions the constitutionality of the ELECT Act. He argues that it conflicts with the text of the 17th Amendment, which provides that “the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.” (emphasis added)
While I initially had some concern along the lines expressed by Professor Hasen, a closer examination of the constitutional text, structure and history reveals a compelling case for the legislation’s constitutionality. This case is laid out below (drawing in part on Professor Vikram Amar’s testimony to Congress this week):
1. Article I, § 4, cl. 1, of the Constitution states that “[t]he Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the places of chusing Senators.”
2. It seems clear that this provision applies to special elections to fill vacancies.
This is shown not only by the text, but by historical precedent and understanding. For example, in 1804 the House Committee on Elections noted with regard to a special election to fill a vacant House seat in Pennsylvania, “it is the duty of the executive authority of the respective States to issue writs of election to fill vacancies, yet, by the fourth section of [Article I], it is made the duty of the legislature of each State to prescribe the times, places, and manner of holding such elections.” I Hind’s Precedents of the House of Representatives, § 517.
3. Congress has used this authority in recent years to regulate the timing of House special elections. After the September 11 attacks, concerns about a potential catastrophic attack led Congress to amend 2 USC 8 to set a time limit for House elections under extraordinary circumstances, ie, where a large number of House seats were vacant at the same time.
4. Moreover, as Amar points out, Congress used its power under Article I, section 4, prior to enactment of the 17th Amendment, to regulate the filling of Senate vacancies. Amar states: “Congress in 1866 passed an Act that regulated the manner and timing of all state legislative elections of U.S. Senators. The Act said that whenever there was a Senate vacancy of any kind, both houses of a state legislature, on the second Tuesday they were in session, must vote to fill the vacancy, and if no person was elected, both houses must continue to vote at least once each and every day thereafter of the legislative session.”
5. The question then becomes whether the 17th Amendment repealed by implication this congressional authority, and left the state legislatures in sole control of the timing of special elections to fill Senatorial vacancies. Repeals by implication, however, are highly disfavored, and there are several reasons to believe that no such repeal was intended.
6. Certainly the 17th Amendment did not repeal congressional authority over general Senate elections. Otherwise, Congress would have no power to set a uniform date for Senate elections.
7. Moreover, the first clause of the second paragraph of the 17th Amendment, which provides for special elections to fill Senate vacancies, contains no suggestion of an intent to displace congressional authority in this regard. On the contrary, the language of this provision (“When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies”) is substantially identical to that used in the House Vacancies Clause. If by using the phrase “as the legislature may direct” they had intended to displace such congressional authority, it would have been logical to place this phrase at the end of the first clause.
8. Instead, the phrase was placed at the end of the second clause, which authorizes the state legislature to empower the Governor to make temporary appointments to fill vacancies. Since this clause is only applicable to special elections conducted after temporary appointments, it seems unlikely that the phrase was intended to displace congressional authority as to all Senate special elections.
9. It is not evident why the framers of the 17th Amendment would have wanted Senate special elections to be treated differently than Senate general elections and House special elections for purposes of congressional authority. Nor is it evident why they would have wanted to deprive Congress of the authority to regulate only those special elections conducted after a temporary appointment.
10. There are several more plausible explanations for why the Temporary Appointments Clause concludes with the phrase “as the legislature may direct.” The phrase can be explained in one or more of the following ways: (1) it substitutes for the time limitation on temporary appointments, ie, “until the next meeting of the legislature,” contained in the original Constitution; (2) it clarifies that the state legislature has the obligation to set the time of special elections, as the House had concluded with regard to its special elections and (3) it ensures that the legislature will only empower the Governor to make temporary appointments that are truly temporary, ie, that have a specific time limit.
11. This still leaves the question of why the Temporary Appointments Clause does not say “as the legislature or Congress may direct.” Other than inadvertence, the absence of a reference to Congress may be explained by the fact that it is the state legislature alone which may empower the Governor to make temporary appointments, and the drafters wanted to ensure that the legislature directed the time and manner of the special election in conjunction with any delegation of the temporary appointment power. The fact that Congress might use its authority to regulate elections to circumscribe the state legislature’s discretion in the matter is not inconsistent with the language used in the Temporary Appointments Clause.
12. These textual, structural and historical arguments might be overcome if there were evidence that the framers of the 17th Amendment actually intended to displace congressional authority. According to Amar, however, the evidence is to the contrary. He indicates that the Members of Congress who debated the amendment evidenced an understanding that Congress would retain the authority to regulate all Senate elections.
Given the novelty of the issue, there remains the possibility that a persuasive case against the constitutionality of the ELECT Act could be made. At the moment, though, I have not heard such a case, and the arguments in support of the Act’s constitutionality seem quite compelling.