The following editorial appeared in the Chicago Tribune on Sunday, March 22:

U.S. Sen. Russ Feingold, D-Wis., thinks the nation’s highest democratically elected body ought to be exactly that – democratically elected. At the moment, it’s only partly so. Four of the Senate’s 100 members, representing 12 percent of voting Americans, got there without the approval of those voters. Feingold wants to keep that from occurring again with a constitutional amendment requiring that vacancies be filled by election, not by gubernatorial appointment. “I think of it as a right-to-vote issue,” he told The New York Times.

We don’t need to be told that the current method is flawed – inviting corruption, giving too much power to a single person and depriving citizens of a say. We’ve had the debacle of disgraced former Illinois Gov. Rod Blagojevich’s appointment of Roland Burris to the Senate seat once held by President Barack Obama. Other states also have illuminated the shortcomings of this approach, as when Alaska Gov. Frank Murkowski made a senator out of his daughter Lisa in 2002, earning her the nickname the “Nepotism Poster Kid.” But most states let governors fill vacancies if they occur less than two years before the next regular election.

When a House member leaves before his or her term is up, by contrast, the seat stays vacant until a special election can be held. Every representative is there by the consent of the governed, which is how it should be.

Feingold’s proposal, however, has its own defects. The first is that it has little chance of enactment. A constitutional amendment is very hard to adopt, since it has to be approved by a two-thirds vote of each house and then be ratified by three-quarters of the states. The second is that it locks in a new system that hasn’t been tried, leaving little room for adjustments if they’re needed.

A better idea, offered by U.S. Rep. Aaron Schock, R-Ill., is a federal law requiring states to hold special elections within 90 days of a Senate opening. Governors still could make appointments to assure representation for the state, but only for the interim. The bill would accomplish what Feingold wants without the cumbersome process of amending the Constitution. Gov. Pat Quinn of Illinois has proposed something similar at the state level.

As it happens, there is no clear need for an amendment. University of California at Davis law professor Vikram David Amar and San Francisco attorney Michael Schaps argue on FindLaw’s Web site that Schock’s bill is “very probably constitutional” because the Constitution gives the federal government more than ample power over such matters.

Article I says states shall determine the time, place and manner of congressional elections, but it also says Congress “may at any time by law make or alter such regulations.” The 17th Amendment, which provided for popular election of senators (who had been chosen by state legislatures), says governors may appoint senators to fill vacancies until elections can be held. This law would align perfectly with that provision.

In short, it’s a simple remedy for a problem that can no longer be overlooked. Congress should forget a constitutional amendment and make the quicker fix.

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