Lautenberg’s Passing Highlights the Strangeness of Gubernatorial Appointments to the Senate

By / 6.5.2013

The latest vacancy in the U.S. Senate, created by the death of Senator Frank Lautenberg of New Jersey, is a reminder of a rather obscure centennial that took place last week: the enactment of the 17th Amendment on May 31, 1913 and the peculiar practice of a state-level executive appointing a federal legislator.

Until 1913, all U.S. Senators were appointed by state legislatures, which was part of the Founders’ plan for differentiating the House and the Senate. So whenever a vacancy arose in the Senate due to death or resignation, the state legislature would simply fill the position at its next session. Gubernatorial appointments to vacant seats took place from time to time, but were usually short-term affairs that lasted only until action by the state legislature.

Since enactment of the 17th Amendment, gubernatorial appointments can last much longer – in some cases as long as two years. According to the National Conference of State Legislatures, thirty-six states allow governors to fill vacancies until the next regular election; most of the other 14 allow governors to make interim appointments until a special election.

At times, gubernatorial appointments have had a significant effect on the composition of the Senate and the balance of parties. In early 2009, governors in four states simultaneously filled the Senate seats left empty when Barack Obama, Joe Biden, Hillary Clinton, and Ken Salazar joined the incoming Obama administration. By late 2009, after the death of Ted Kennedy and the resignation of Mel Martinez, one in eight Americans was represented by at least one appointed Senator. In the aftermath of former Illinois Governor Rod Blagoevich’s attempt to “sell” Barack Obama’s Senate seat that year, a brief reform movement arose but ultimately gained little traction.

Lautenberg’s successor will become the twelfth sitting Senator to have originally entered the Senate via gubernatorial appointment, although most of these have also won election in their own right. Until a special election later this year, the next Junior Senator from the Garden State will sit alongside Tim Scott of South Carolina, Mo Cowan of Massachusetts, and Brian Schatz of Hawaii as the fourth unelected member of the nation’s highest legislative body. Of these, she or he will also be the only to have been named by a governor of an opposing party – and the only governor whose calculations clearly involve a potential presidential run of his own.