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Monday, February 25, 2013

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

Thomas H. Neale
Specialist in American National Government

United States Senators serve a term of six years. Vacancies occur when an incumbent Senator leaves office prematurely for any reason; they may be caused by death or resignation of the incumbent, by expulsion or declination (refusal to serve), or by refusal of the Senate to seat a Senator-elect or -designate.

This report provides information on current vacancies in the Senate, the constitutional origins of the Senate vacancy clause, the appointment process by which most vacancies are filled, and related contemporary issues. It will be revised and updated to reflect current developments in vacancies, appointments, and special elections.

Two Senate vacancies occurred late in the 112
th Congress by separate events, due to resignation of one incumbent Senator, and the death of a second. A third vacancy occurred early in the 113th Congress, due to the resignation of an incumbent Senator. The details are provided below, in chronological order.

On December 6, 2012, Senator Jim DeMint, of South Carolina, announced he would resign from the Senate to assume the position of President of The Heritage Foundation. On December 17, South Carolina Governor Nikki Haley announced she would appoint Representative Tim Scott to serve in his place until the vacancy is filled by a special election in 2014. The winner of the special election will serve until the term expires in 2016. Senator DeMint resigned effective January 1, 2013, and Senator Scott was sworn in on January 3.

On December 17, Senator Daniel K. Inouye, of Hawaii, died. Senator Inouye, who had served since 1963, was also President Pro Tempore of the Senate at the time of his death. On December 28, Hawaii Governor Neil Abercrombie announced he would appoint Lieutenant Governor Brian E. Schatz to serve in his place until the vacancy is filled by a special election in 2014. The winner of the special election will serve until the term expires in 2016. Senator Schatz was sworn in on December 27, 2012.

On December 21, President Barack H. Obama announced his nomination of Senator John F. Kerry, of Massachusetts, for the position of Secretary of State. Senator Kerry resigned from the Senate on February 1, 2013, and was sworn in as Secretary the same day. The vacancy created by Senator Kerry’s resignation will be filled by the expedited special election procedures established in Massachusetts in 2009 in response to the death of Senator Edward M. Kennedy. On January 30, Massachusetts Governor Deval Patrick appointed William (Mo) Cowan to fill the vacancy until the special election, which has been scheduled for June 25. Senator Cowan was sworn in on February 7, 2013.

The use of temporary appointments to fill Senate vacancies is an original provision of the U.S. Constitution, found in Article I, Section 3, clause 2. The practice was revised in 1913 by the 17
th 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. In Connecticut and Oklahoma, the governor may make a temporary appointment in limited circumstances, and Oregon, Rhode Island, and Wisconsin require vacancies to be filled only by special election.

Gubernatorial appointment power to fill vacancies was questioned following controversy over the process in general, and the 2008 Illinois Senate vacancy in particular. Two alternative federal reform approaches emerged in the 111
th Congress. Among other provisions, H.R. 899 proposed that special elections be required to fill all Senate vacancies; S.J.Res. 7 and H.J.Res. 21 proposed a constitutional amendment that would require all Senators to be elected, and sought to direct 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 rare joint hearing on the measures, while the Senate Judiciary Committee’s Subcommittee on the Constitution voted to approve S.J.Res. 7 and report it to the full committee, but no further action was taken on any of the three measures. No comparable legislation was introduced in the 112th Congress, and none has been introduced to date in the 113th.

In the states, a number of legislative proposals have been introduced since 2009 to eliminate or curtail the governor’s power to fill Senate vacancies by appointment. Two states substantially modified their vacancy procedures during this period: Connecticut, which significantly restricted the governor’s appointment power in such instances, and Rhode Island, which eliminated it entirely, requiring that all future Senate vacancies be filled by special election.

Date of Report: February 13, 2013
Number of Pages: 20
Order Number: R40421
Price: $29.95

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