One new senator, Tim Scott, has been appointed by South Carolina Governor Nikki Haley, rather than elected by the people of that state. Another senator will be appointed by Hawaii Governor Neil Abercrombie to fill the vacancy created by the death of Senator Dan Inouye. A third is expected to be appointed by Massachusetts Governor Deval Patrick to replace secretary of state-nominee John Kerry.
These appointed senators will be powerful players. They will have critical roles in deciding whether to approve or reject cabinet nominees and Supreme Court selections, they will vote on tax policies and budget measures, they will decide whether to send the United States over a "fiscal cliff" -- or off to war. But they will do so without democratic legitimacy.
No member of Congress should serve without having been elected by the people of the district or state they represent.
Unfortunately, the new Senate will have at least three members who serve not as representatives but as mandarins--appointees assigned to positions by governors who have assumed unreasonable authority.
What all this means is that more laws will be proposed, more filibusters will be broken, more critical votes will be tipped in one direction or another by "senators" who never earned a single vote.
Why?
Because of a deliberate misreading of the vague 1913 amendment to the US Constitution that replaced the old system of appointing senators with one that said they were all supposed to be directly elected.
The Seventeenth Amendment sought to end the corrupt, and corrupting, process of appointing senators. But a loophole was included to give governors the authority to make temporary appointments. That meant that, while no one has ever been allowed to serve in the U.S. House of Representatives without having first been elected, dozens and dozens of men and women have served in the Senate without having been elected. And those appointed senators often serve for two full years, as will South Carolina's Scott, who will not face the voters until 2014. That means that, to the end of the 113th Congress, a senator chosen by one governor (Scott) will have the same power as a senator elected by 7,748,994 voters (California Democrat Dianne Feinstein).
Former US Senator Russ Feingold, D-Wisconsin, tried to amend the Constitution to address the problem.
His proposal, which would have required special elections to fill all Senate vacancies, got a little bit of traction when Feingold was still serving in the Senate. In 2009, the Senate Judiciary Subcommittee on the Constitution approved Feingold's proposed amendment to end gubernatorial appointments to vacant Senate seats.
Recalling a series of appointments following the 2008 election, Feingold said:
"I applaud my colleagues on the subcommittee for passing the Senate Vacancies Amendment, which will end an anti-democratic process that denies voters the opportunity to determine who represents them in the U.S. Senate. The nation witnessed four gubernatorial appointments to Senate seats earlier this year, some mired in controversy, and we will soon see another one in Texas. This will leave more than 20 percent of Americans represented by a senator whom they did not elect."
Senate Majority Leader Harry Reid, D-Nevada, was not enthusiastic about the amendment. He defended the appointment of senators, saying, "In the state of Nevada the governor appoints. Even though we have a Republican governor now I think that's the way it should be so I don't support his legislation."
Nevada also permits prostitution. And gambling.
So Reid might get some debate about whether its approaches are the ideal touchstone for setting national policies.
But no one with a taste for democracy can possibly respect the majority leader's position on appointed senators.
More thoughtful senators, including the number-two Democrat in the chamber, Illinoisan Dick Durbin, co-sponsored Feingold's amendment.
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