One by one, the Senate is filling up with caretakers, or so it seems. The death of Sen. Robert Byrd (D) of West Virginia early Monday opens up room for the sixth such appointee since the start of the 111th Congress in January 2009.
All these caretakers – representing Illinois, Delaware, New York, Colorado, and Florida – have reignited questions over whether a gubernatorial appointment, rather than a special election, is the best way to fill a vacant Senate seat. In particular, allegations of misbehavior in Illinois during the filling of President Obama’s former Senate seat spurred a move in some state legislatures to change the way vacancies are filled.
Historically, most states have given governors the right to appoint an interim senator in the case of a vacancy. But Illinois hasn’t been the only recent flash point: The awkward process by which New York Gov. David Paterson (D) went about filling the seat of Hillary Rodham Clinton, who resigned to become secretary of State, added fuel to the reform movement. Caroline Kennedy, daughter of the late President Kennedy, openly lobbied for the New York seat until she withdrew her name from contention.
Of the 12 states that considered legislation to fill Senate vacancies by special election, Connecticut and Rhode Island were the only ones that passed it in 2009, according to the National Conference of State Legislatures. It also passed in Kansas but was vetoed by the governor. Legislation is still alive in Illinois, Iowa, Minnesota, New York, Ohio, and Pennsylvania.
Although Governor Manchin has said he will not appoint himself to the seat, his appointee will be someone who can enable his future ambitions, says Susan Hunter, associate professor of political science at West Virginia University in Morgantown.
“If he is planning on running for the Senate, he’s not going to put someone in place who is going to make it difficult for him to run,” Professor Hunter says.
But Hunter says she doesn’t think Manchin’s personal interest in selecting an appointee will be enough to spur legislation in West Virginia.
“It depends on who Governor Manchin appoints. If he appoints someone who has high approval, then it won’t be an issue in the Legislature,” she says.
The process of filling Senate vacancies has also been in the spotlight in Massachusetts in recent years. In 2004, Massachusetts Democrats changed state law and called for a special election to be held five months after a Senate vacancy. Massachusetts Sen. John Kerry received the Democratic presidential nomination that year, and state Democrats were concerned that if Senator Kerry won, then-Gov. Mitt Romney (R) would appoint a Republican.
Five years later, with the death of Sen. Edward Kennedy (D) and a Democrat in the governor’s office, Democrats wanted to restore the governor’s right to appoint interim senators. The new law retained the special election, but it permitted the governor to appoint a temporary successor until the vote. The special election ended up costing the Democrats the Senate seat to Sen. Scott Brown (R) earlier this year.
Despite these cases, voters don’t care as much about how their state handles Senate vacancies, says Rob Richie, executive director for FairVote, a Maryland-based think tank that helped Rhode Island change its procedure for the vacancies.
The process in some states has been messy, Mr. Richie says, but has not received enough national attention for voters to take action.
It’s going to be hard for legislation on this issue to advance state by state, he adds, because it is highly politicized.
“The only time the legislature is going to move is when the governor is from the other party... [and] in that case, the governor is going to veto it,” Richie says.