Filling U.S. Senate Vacancies: Perspectives and Contemporary Developments

Thomas H. Neale
Specialist in American National Government

The election of incumbent Senators as President and Vice President in 2008, combined with subsequent cabinet appointments, resulted in the highest number of Senate vacancies during a presidential transition period in over 60 years. Vacant seats were filled in Colorado, Delaware, Illinois, and New York, all states in which the governor appoints a temporary replacement. Controversies surrounding the replacement process in two of these states drew scrutiny and criticism of both the particular circumstances and the appointment process itself. 

The use of temporary appointments to fill Senate vacancies is an original provision of the U.S. Constitution. The practice was revised in 1913 by the 17th Amendment, which substituted direct popular election in place of choice by state legislatures and specifically directed state governors to "issue writs of election to fill such vacancies." The amendment, however, also preserved the appointment option by authorizing state legislatures to "empower the [governor] to make temporary appointments until the people fill the vacancies by election." 

Since 1913, most states have empowered their governors to fill Senate vacancies by temporary appointments. Some, however, limit the governor's power: appointed Senators in Arizona must be of the same political party as the prior incumbent, while in Hawaii, Utah, and Wyoming, the governor must choose a replacement from names submitted by the prior incumbent's party. Oregon, and Wisconsin, and until recently Massachusetts, require vacancies to be filled by special election. Oklahoma allows appointments in limited circumstances. Alaska passed both legislation and a ballot item requiring special elections, but its current status is unclear. Several states considered "election only" legislation in 2009, but only Connecticut adopted this procedure. 

Two alternative federal reform approaches emerged in the 111th Congress: legislative and constitutional. H.R. 899 would require special elections to fill all Senate vacancies, and would provide federal financial assistance of up to 50% of the state costs of the special election. S.J.Res. 7 and H.J.Res. 21 propose a constitutional amendment that would require all Senators to be elected, and would direct the governors of affected states to issue writs of election to fill Senate vacancies. The constitution subcommittees of the Senate and House Judiciary Committees held a joint hearing on the measures on March 11, 2009. On August 6, the Senate Judiciary Committee's Subcommittee on the Constitution voted to approve S.J.Res. 7 and report it to the full committee. At the time of this writing no further action had been taken on any of the three measures. 

Following the death of Massachusetts Senator Edward M. Kennedy on August 25, 2009, Massachusetts enacted legislation that revised the state's previous election-only policy; the law authorized the governor to make a temporary appointment to serve until the special election. Governor Deval Patrick subsequently appointed Paul G. Kirk to fill the seat. Republican Scott Brown won the January 19, 2010, special election, and was sworn in on February 4. He will serve the balance of the term, which expires on January 3, 2013.  


Date of Report: March 22, 2010
Number of Pages: 20
Order Number: R40421
Price: $29.95

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