Article I, Section 3, Clause 2: Rotation of the Senate and filling of vacancies

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.

This clause establishes the rotation of the Senate and the procedure for filling any vacancies in the Senate. It has been noncontroversial, but is nevertheless important for its contribution to establishing the character of the Senate.

We argued in our last post that the Senate was intended to be a checking branch of government, acting as a set of control rods on the great nuclear pile that is the House of Representatives. The House is the great wellspring of democratic governance; the Senate, originally one step removed from the people, also had significant democratic character, but was intended to be a deliberative body more than a representative body.

It is consistent with this interpretation that the Senators enjoy a relatively long term in office of six years. With this clause, the additional feature is added that the Senate is never all up for election at once. Every two years, the term of office of a third of the Senators expires, and new Senators are elected — originally by the legislators, more recently by the people of the states (via the 17th Amendment, which we regard as a grievous error.) Thus there is considerable continuity in the Senate. Any change in the mood of the public can alter the Senate only gradually, over a period of six years.

The other part of this clause establishes implicitly that vacancies are to be filled in the same way that Senators are elected in the first place — by the state legislature. This, too, was altered by the 17th Amendment, so that vacancies are to be filled via a special election. It is significant, however, that a procedure was put into place to allow vacancies to be filled temporarily if the legislature was out of session. The 17th Amendment did not entirely discard this, giving legislatures the discretion to allow the governor to make temporary appointments until a special election could be held.

This implies that the Framers thought it important that a Senate seat not be left vacant for any length of time. The same may be true of the House, where governors are empowered to hold immediate special elections to fill a House vacancy. Nevertheless, we think it significant that the Framers were careful to ensure that there would always be a quorum of the legislature seated.