STEVE INSKEEP, host:
Voters have a constitutional right to choose their own U.S. senators every six years. It's a right they only gained for certain in 1913. Before that, in many states there was a variety of techniques of backroom dealing for choosing senators, which sounds familiar now because when a Senate seat becomes vacant, and one recently did in Illinois, voters in most states still are not allowed to fill it.
In most cases, governors make the call. And recently they've been criticized a lot for how they do it. Now, there's a drive underway in Congress for a constitutional amendment requiring that Senate vacancies be filled only by special election. NPR's David Welna has the story.
DAVID WELNA: It was a cold December morning when federal authorities arrested Illinois' then-governor, Rob Blagojevich, and accused of him of trying to sell President Obama's vacant Senate seat to the highest bidder. At a news conference the same day, Dick Durbin, Illinois' other senator, declared there was only one way out.
Senator DICK DURBIN (Democrat, Illinois): I think the Illinois General Assembly should enact a law as quickly as possible calling for a special election to fill the Senate vacancy of Barack Obama.
WELNA: And here's why a new law would be needed: Illinois' General Assembly, like 45 other state legislatures, long ago gave its governor the exclusive power to fill Senate vacancies. The option to bestow such power is part of the 17th Amendment, the same one that provides for the direct election of senators.
But while Illinois lawmakers did not pass a special election law, they did impeach Blagojevich — though not before he appointed Roland Burris to the Senate. Burris himself is now struggling to hang on to his new job. Earlier this week, he pleaded, in Chicago, for understanding after admitting trying to raise money for Blagojevich while seeking the Senate appointment.
Senator ROLAND BURRIS (Democrat, Illinois): I ask you today to stop the rush to judgment. You know the real Roland. I've done nothing wrong, and I have absolutely nothing to hide.
Senator RUSS FEINGOLD (Democrat, Wisconsin): Enough is enough.
WELNA: That's Wisconsin Democratic Senator Russ Feingold. He wants every state to do as Wisconsin has done: fill Senate vacancies only by special election.
Sen. FEINGOLD: It's time to put the power to replace senators where it belongs — with the people. That's the way it's been for the House since the Constitution was written, and I don't think the Senate should be any different.
WELNA: To make special elections the law of the land, Feingold is proposing what would be the Constitution's 28th Amendment. Joining him are several prominent House Republicans, including the former chairman of the Judiciary Committee, Wisconsin's James Sensenbrenner.
Senator JAMES SENSENBRENNER (Republican, Wisconsin): Elected senators have a mandate from the people. Appointed senators have a mandate from one person: the governor. And in terms of effective representation in the Senate, you've got a lot more clout if you were sent there by the people, rather than having a friend who happened to be governor at the time.
WELNA: But while many constitutional amendments have been proposed, few actually become law. Elections expert and constitutional scholar Nate Persily of Columbia Law School gives Feingold's proposal a better than average chance of passing.
Mr. NATE PERSILY (Elections Expert, Constitutional Scholar, Columbia Law School): I think you'll find that, in the wake of the Burris scandal and the four senatorial appointments we've had this year, that many state legislatures would like to move in this direction.
WELNA: Another constitutional expert, the University of California, Davis's Vikram Amar, argues against Feingold's proposed amendment. Amar says those who drafted the 17th Amendment had very good reasons to let governors fill Senate vacancies:
Mr. VIKRAM AMAR (University of California, Davis): They didn't want to impose upon each state the cost of holding a special election very soon. Moreover, you know, you need a little bit of a campaign before you have a special election, so you can't hold one the day after the vacancy is created. And in the meanwhile, the question is, do you want the state to have any representation in the Senate or full representation in the Senate? If so, you've got to have some second-best option, and the governor is better than the legislature in that second-best option.
WELNA: Feingold, though, says the only option should be the direct election of all senators.
Sen. FEINGOLD: What do you get to vote for? Well, one of the rarer things you get to do is vote for an open seat for the United States Senate. How often does that happen? This is really about the fundamental right of an American to vote.
WELNA: Which is why he says he wants to perfect the 17th amendment by passing his 28th amendment.
David Welna, NPR News, the Capitol.
NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.