Kamala Harris’s selection as Joe Biden’s running mate has set off a frenzy of speculation as to who could replace her in the Senate if Biden is elected president in November. Progressives like Rep. Rashida Tlaib, D-Mich., immediately raised the possibility of left stalwart Rep. Barbara Lee filling the position, while others on the left have raised up California Reps. Karen Bass and Ro Khanna as possible candidates as well.
Under current California law, one man, Gov. Gavin Newsom, will have the power to decide. Newsom will likely make an appointment for two years without that candidate having to face the voters in a special election. Unlike in the House, where vacancies are filled only by special election, past practice has created a system such that governors are able to exercise sole control over temporary Senate appointments in many states, including California.
Those hoping that Newsom would appoint a woman or a progressive to replace Harris in the Senate seat could be facing strong headwinds. CalMatters reported last week that “prognosticators often name both California Secretary of State Alex Padilla and Attorney General Xavier Becerra as among the most likely to be appointed” because Newsom would be able to appoint their replacements as well, giving himself a twofer. Both Padilla and Becerra are solidly in the center of the Democratic Party.
That’s exactly the type of backroom deal-making that the 17th Amendment sought to end, argues former Wisconsin Sen. Russ Feingold, who is now the president of the American Constitution Society. The 17th Amendment, which was ratified in 1913, was a major priority of the populist movement, in which millions of Americans came together to demand an end to the gold standard (which was causing decennial financial crises), a breakup of the railroad trusts, and the legalization of trade unions. Prior to the 17th Amendment, most states elected senators through their state legislatures: This resulted in naked bribery for Senate seats. William Clark, whose daughter Huguette Clark’s orphaned estate has attracted media attention in recent years, was one of the most notable examples of this when he bribed his way into the Senate in 1899. “The passage of the 17th Amendment was actually a 20-year campaign,” said Garrett Epps, a retired law professor who has been active in litigation surrounding this issue. “There was extraordinary popular mobilization because the Senate was such a cesspool of corruption.”
Since the 17th Amendment was passed, it has been left to the states on how to fill a vacancy with three options being the norm: there is a vacancy until a special election; the governor appoints a replacement until a special election; or the governor appoints a replacement until the next election. Feingold himself introduced a constitutional amendment in 2009 that would ensure that all temporary appointments to the Senate would have to face a special election, which failed to pass.
“The whole purpose of the 17th Amendment was that people should choose their senators directly,” said Feingold. “The goal was to broaden the role of the voter in the selection of senators. But instead, you often have one person getting to decide, with the most famous example being Rod Blagojevich.” Blagojevich, the former governor of Illinois, was found guilty of accepting bribes to fill Barack Obama’s Senate seat after Obama was elected president in 2008. “That one person can fill a Senate seat for two years in a state the size of California strikes me as fundamentally anti-democratic,” said Feingold.
Feingold pointed out that temporarily appointed senators almost never served for the duration of an entire two-year Congress prior to the 17th Amendment’s passage. The original language in the Constitution allowed governors to make appointments until the next session of the state legislature. At the time, most state legislatures met annually.
Feingold pointed out that the current system in most states “gives the appointed an enormous leg up.” In 2010, Feingold noted that in Colorado, “Andrew Romanoff was likely to win a primary, but Michael Bennet was given a leg up; he was given such an enormous advantage” and ultimately won in a close race. Romanoff had been the speaker of the state House, while Bennet had never previously held elected office prior to being appointed to the Senate, instead serving as superintendent of Denver Public Schools and chief of staff to then-Denver Mayor John Hickenlooper.
“It’s better for the people to choose,” Feingold concluded. “The people of California should choose.”
Because it’s up to the states, the California state legislature could choose to change their system of selecting replacements in the Senate. In California, currently, the governor’s appointee may serve until the next scheduled statewide election, in this case 2022. But in Massachusetts, for instance, the governor may appoint a vacancy until a special election is held four to six months after the vacancy is created, which means that there is no gap in the state’s representation in the Senate.
Kimberly Ellis, a California political operative, argued that the current setup of gubernatorial appointment could reduce the likelihood of a woman of color replacing Harris in the Senate. Harris is the only Black woman in the Senate and one of three Asian American women.
“I think generally speaking to the extent that we’re able in those situations to allow for the public to choose their representatives — that is a good thing,” said Ellis. “That’s part of a longer conversation to change California law to closely align with the Massachusetts one, that there would be a finite amount of time for somebody to serve before a special election.”
“One thing that is becoming louder and louder is the call for more women and women of color specifically in the U.S. Senate,” said Ellis. Given the Democratic Party in California’s history, Ellis is concerned that the two-year gubernatorial term for Harris’s seat could freeze out progressive women of color like Reps. Karen Bass or Barbara Lee. “I’m a big believer in data and numbers. The data and numbers speak for themselves, which is that the California Democratic Party, like many state parties, have not supported investing in and recruiting women of color at every level to the extent that it should have and must if it continues to survive.”
Epps, the retired law professor, pointed out that the gubernatorial appointment model is without precedent in other areas of the Constitution. “I’ve spent 30 years studying the Constitution,” said Epps. “I can’t find a single other place where an important appointment of that magnitude is made without participation from anyone else. The president must make appointments with the confirmation of the Senate. But governors make the decision by themselves. So quite logically you end up with a Blagojevich situation. He went to prison, but he wasn’t wrong to say that the appointment was his and his alone.”
Correction: August 19, 2020, 12:20 p.m. ET
Kamala Harris is currently one of three Asian American senators, along with Sens. Mazie Hirono and Tammy Duckworth, not one of two, as the article originally stated.