Russ Feingold's Very Bad Idea

By Peter RoffFormer Senior Political Writer, United Press International

That Democrats are unhappy about the way Barack Obama, Joe Biden and Hillary Rodham Clinton's open Senate seats were filled is understandable. The three vacancies were handled with all the grace of an overweight ballerina in a tap dancing contest -- which, for those of you who came in late, is without any at all.

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One seat was almost auctioned off -- and then mishandled by Senate Democrats who, looking more like the Keystone Kops than members of the world's greatest deliberative body, tried to keep the eventual appointee out -- unintentionally conjuring up memories former Governor George Wallace, late of Alabama, standing in the schoolhouse door -- before collapsing like a tower constructed out of Jell-O in a strong breeze.

The second was handed to a family retainer whose principal responsibility is to keep the job available for a relative (shades of Massachusetts, circa 1961).

The third was the subject of a nasty public campaign involving the closest thing America has to royalty that threatened to split the party in a very important state.

So I can understand why Senator Russ Feingold, (D-Wis.), would come forward with a proposal to amend the U.S. Constitution to require vacant Senate seats be filled by a special election. He obviously lacks the confidence that his party will ever get it right. More than that though, Feingold's idea is very wrong.

First of all, the Constitution vests a great deal of responsibility in states and in state governments. This includes the ability to set the manner in which vacant Senate seats would be filled. A few states -- including Feingold's -- require a special election or impose some restrictions on who can be named; in most states the governor retains the power of appointment, at his -- or her -- sole discretion.

It's a trust issue. The Founding Fathers didn't trust the federal government very much, at least not with power. This is evident in the separation of powers that run throughout the Constitution and the Bill of Rights.

There is, for example, the lateral separation of powers that exists between the three branches of the federal government -- the Congress, the President and the Courts, for those of you who slept through high school civics. More to the point for this discussion, the Constitution also contains an unenumerated but no less important vertical separation of power between the people, the states and the national government.

The President, chosen by popular vote for electors among the states, represents the nation. The House of Representatives, elected every two years by district by direct popular vote, represents the people. And, in the Constitution's original construct, Senators -- who were chosen largely by a vote of the members of the state legislature back home -- were supposed to represent the States as political as well as geographic entities.

Direct election of senators changed all that. Gubernatorial appointment in the event of a vacancy is a vestige of that earlier system which, in my view, was a good one. Feingold's proposal is more democratic but that doesn't mean it is better. It might be "more democratic" to let the inmates vote on who is going to run the asylum, for example, but that doesn't mean the living conditions there would improve.

The federal government needs as many checks and balances as can be leveraged against it. Giving the states a stronger voice in the increasingly central government, which could be achieved through the abolition of the direct election of senators, is an idea worth at least as much discussion as Feingold's proposal.