Law & Principles
Appointment process for U.S. Senate vacancies advances
May 25, 2021
Oklahoma would use an appointment process to replace a U.S. senator who resigns or dies prior to completion of his or her term in office under legislation approved by the state Senate.
Senate Bill 959, by Sen. Lonnie Paxton, would allow the governor to appoint a replacement should an unexpected vacancy occur in one of the state’s two U.S. Senate seats. Under the bill, the replacement must be someone who has been a member of the same party as the preceding senator for at least five years, and the replacement would have to submit to the Secretary of State an oath “affirming that the person will not file as a candidate for the office when it next appears on the ballot.”
“This is the bill that would allow a governor to fill a vacant U.S. Senate seat rather than going through a normal special-election process and leaving that seat vacant for nine months while we’re waiting on that process to play out,” said Paxton, R-Tuttle.
Paxton noted that if a vacancy occurred in one of Oklahoma’s two U.S. Senate seats today, it would have far-reaching repercussions since the U.S. Senate is currently split evenly between Democrats and Republicans. The resulting 50-49 split of Democrats to Republicans would automatically revoke the power-sharing agreement between the two parties, he noted.
Paxton said he first sought to change the process before the power-split in the U.S. Senate, but that the situation emphasizes the need for reform.
“If there was a vacancy in that seat today, the person who’s going to win that seat, most likely, is going to be a political insider or a very wealthy person because it’s a shotgun, fast special election that does not give a basic Oklahoman the ability to have the time to go out there and build a coalition to win a U.S. Senate seat,” Paxton said. “The way the statute is now is the ‘insider statute.’”
Paxton said 45 states allow for appointment of replacements when a vacancy occurs, and that any placeholder appointed under SB 959 would serve no more than two-and-a-half years.
Opponents argued the bill’s provisions granted too much power to a governor.
Sen. J.J. Dossett, D-Owasso, said he did not “think the majority of states are right on this issue.”
“This is about power,” Dossett said. “This is too much power to put in an elected person’s hands to decide who a U.S. senator is. That power belongs with the people, not an elected person.”
Critics noted that Oklahomans shifted away from an appointment process decades ago after former Gov. J. Howard Edmondson negotiated his own appointment to a U.S. Senate seat in 1962 after incumbent U.S. Sen. Robert Kerr died in office.
Edmondson resigned as governor after his replacement, Lt. Gov. George Nigh, agreed to appoint Edmondson to the U.S. Senate seat.
“What good is an oath?” Dossett asked. “How can we hold someone accountable to an oath?”
Paxton said breaking a public oath would be a political liability. He said stronger protections were considered, but officials determined they would be potentially unconstitutional.
“There are no guarantees on what will happen if somebody breaks that oath, but then ultimately it’s up to the voters,” Paxton said. “But I would say for something as crucial as a United States Senate seat that oath that they have signed less than two-and-a-half years earlier would be a pretty hard obstacle for them to cross to get re-elected to that position.”
He noted that Edmondson was defeated in his reelection effort just two years after the controversial appointment. In the Democratic U.S. Senate primary runoff election in 1964, Edmondson received 39 percent of the vote compared to 61 percent for Fred Harris.
“One thing I’ve worked really hard on is to make sure that no governor, this one or any in the future, would ever be in the position of being a kingmaker when it comes to filling this position,” Paxton said.
Sen. Julia Kirt, D-Oklahoma City, objected to requiring a governor to appoint a replacement who is from the same political party as the prior senator.
“I’m concerned that we would spell out something like that in an appointment, specifically designating the party of the individual that would be appointed,” Kirt said. “It seems a strange way to build out statutes.”
SB 959 passed the Oklahoma Senate on a 35-10 vote. It now proceeds to the Oklahoma House of Representatives.