Article 1 §3.2: Staggering the Senate

Lately democracy has been taking a global beating, and the U.S. has not been immune, what with a Russian-influenced presidential election and a new president who appears not to understand or be familiar with the Constitution. But people in glass houses should not throw stones, so I’m studying the Constitution, and blogging what I learn. I’d love to make it a study group. After all, in a functioning democracy we should all be Constitutional scholars.

If you haven’t been following along, there are seven articles in the Constitution. I’m currently reading the First Article, which deals with the legislative branch of government. The First Article has 10 sections. Section One establishes a bicameral Congress and Section Two deals with the House of Representatives. I’m currently reading Section Three. Today is Clause 2.

Article 1 §3.2

2: Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.4

It’s funny how we tend to think about the Constitution as this timeless, eternal document, a sort of Platonic form for government. But the Framers were starting something new, and for all that they were using the British system as a general model to improve upon, they had a lot of nuts and bolts tinkering to do.

They established in the previous clause that Senators would have six-year terms. But a complete turnover ever six years would be totally disruptive. To stagger elections, the first batch of Senators would have to have uneven terms. It’s totally practical and straightforward, but doesn’t it make you wonder what that was like?

How did they decide which third got the shortest term? Lottery? Did anyone get pissed who drew the short stick? Back then it wasn’t cool to want to be in office. Early presidential candidates didn’t even participate in their own campaigns – was that because they had foresight of the modern stereotype of the financially motivated professional politician, desperate for reelection? Or did they just have a very early sense of steez? The Senate website explains how that classification lottery worked, but to find out how the Senators felt about it would be a research deep dive.

If Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.4

This seems pretty straightforward, except that footnote there indicates it was not. This part of the clause was altered by the Seventeenth Amendment, “Popular Election of Senators.” The relevant clause of the amendment reads:

2: When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

I’m a little curious about the “Provided that the legislature…” bit, but I’ll deal with amendments in-depth separately. For now I’ll just say that 36 states fill a U.S. Senate vacancy at their next regularly scheduled general election. Fourteen require a special election be called. Find out what your state does here.

And as a reminder that this stuff is relevant to our everyday lives, the process is currently playing out in Alabama and New Jersey right now and could become important to Arizona if McCain’s health doesn’t hold up.