Have the People Elect Senators in Special Elections

By Beacon Staff

With the departure of Sen. Max Baucus from the Senate, Montana’s longest serving statewide elected official is Ed Smith. Never heard of him? Well, we have elected him clerk of our Supreme Court five times. Ed served as chief clerk of the Montana House of Representatives three legislative sessions and was then appointed by the legendary House Speaker Tip O’Neill to be chief bill clerk of the U.S. House of Representatives. He has also served as president of the National Conference of Appellate Court Clerks.

His is a remarkable record that speaks for itself. Ed always does a good job. That’s why he is rarely in the news and always reelected.

The exit of Max from Montana, however, has certainly created a lot of news, much of it swirling around the appointment by Gov. Steve Bullock of his Lt. Gov. John Walsh to fill the Baucus Senate vacancy. Bullock has felt compelled to refute allegations that he was pressured into the Walsh appointment by U.S. Senate Majority Leader Harry Reid.

Though the details are different, the success rate of senatorial appointees being retained by Montana voters isn’t good. In fact, it’s zero for two. The first appointee was defeated back in 1934. The most recent was Montana Supreme Court Justice Paul Hatfield, appointed senator by Gov. Tom Judge to fill the vacancy created by the 1978 death of Senator Lee Metcalf. Judge was defeated in the next election as was Hatfield by then young Congressman Max Baucus.

Montanans appear to not like having their senators appointed for them. If he wins the primary, Walsh appears to have an uphill battle on his hands against Republican Congressman Steve Daines.

Prior to the 17th Amendment in 1913, senators were appointed by state legislatures. “Copper King” W.A. Clark flagrantly bribed Montana legislators into electing him to the Senate in 1899. Incredibly, when an investigation forced Clark’s resignation, he finagled a gubernatorial appointment to the Senate to fill the vacancy created by his own resignation!

The Clark outrage in Montana was often used as an example of the need for the 17th Amendment.

The amendment, however, leaves up to the states whether Senate vacancies are filled by election or appointment by their state’s governors. Whereas, when a vacancy occurs with a member of the U.S. House, the Constitution requires a special election.

If we entrust the people to choose their U.S. representatives in special elections to fill vacancies, by what logic do we prohibit them from doing so when Senate seats become vacant?

Montana should join the 14 states allowing their people the complete power to elect their senators. A bill to do this sponsored by Democratic Sen. Gary Branae of Billings was defeated in the 2011 legislative session, and another by Democratic Sen. Dave Wanzenried of Missoula died on a tie vote in 2013. Both were supported by Montana’s secretary of state. Ironically, most legislative Democrats opposed the legislation with all but two Montana Senate Democrats voting against Wanzenried’s bill in 2013. If Montana’s governors had wanted to rid themselves of the awkward and politically problematic senatorial appointment responsibility, either bill would have passed.

Maybe a citizen’s initiative is in order. About 24,000 signatures would have to be gathered by June 20 to place a measure giving Montana people the power to fill Senate vacancies on the fall election ballot. It would pass.

Bob Brown is a former Montana secretary of state and state Senate president

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