What If Johnson Dies AFTER The Committees Are Selected?

The U.S. Constitution requires a special election when a vacancy occurs in the House of Representatives. No such provision applies to the U.S. Senate, because its members were elected by state legislatures until Oregon pioneered a national movement that ended in 1913 with the ratification of the 17th Amendment, which requires that senators be elected by the people.

The 17th Amendment leaves the method of filling vacancies to the states - which could put the control of the entire Senate in the hands of one man: the governor of South Dakota.

Control of the Senate could be in doubt because of the sudden illness of Sen. Tim Johnson, D-S.D. Johnson is in critical condition following surgery to repair bleeding in his brain. An illness does not create a Senate vacancy; only death, resignation or expulsion can do that. But Johnson's condition is serious enough to shine a spotlight on Gov. Mike Rounds, who would appoint a replacement.

Rounds is a Republican, and nothing in South Dakota law would prevent him from appointing a member of his own party, or even himself, to replace Johnson. Such an appointment would shift the partisan balance in the Senate to 50-50.

If the shift occurred before the Democrats officially take control on Jan. 4, Republicans and Democrats would negotiate a power-sharing agreement. If the shift were to occur after Jan. 4, the Senate would have passed a resolution establishing Democratic control. Either way, Vice President Dick Cheney's right to cast tie-breaking votes in the Senate would become a factor in every vote that broke along partisan lines.

Rounds, a single official, should not have the power to remake the nation's political landscape.

Oregon has a better system: State law requires a special election to fill Senate vacancies. A Senate vacancy in Oregon could still precipitate a change in the partisan balance in Washington, D.C. - but the change would not be the result of a decision by a governor who has a partisan interest.

Oregon's law requiring special elections to fill Senate vacancies was approved by voters in 1986, when Democrats and Republicans alike became spooked by rumors that Republican Sen. Mark Hatfield would retire. Democrats didn't want Republican Gov. Vic Atiyeh to appoint a successor who would run as an incumbent. Republicans worried that Atiyeh would be followed in office by a Democrat - as indeed he was - who might appoint a weak Republican successor to Hatfield, and the replacement would be sure to lose in the next election.

The rumors were wrong, and Hatfield served another 10 years. The 1986 measure did not come into play until 1995, when Sen. Bob Packwood resigned. The special election that followed resulted in Ron Wyden, a Democrat, replacing Packwood, a Republican - but it was the voters' decision, not the governor's.

Before 1986, U.S. Senate vacancies were filled by gubernatorial appointment. Such appointments were covered by a constitutional provision that still affects most vacancies involving partisan offices: An appointee must be a member of the same political party as the person he or she would replace. That method is also better than South Dakota's.

While the nation hopes for Johnson's recovery, the senator's illness shows that South Dakota and other states would do well to adopt Oregon's rules for filling vacancies. The consequences can reach far beyond a single state's borders.

If the shift occurred before the Democrats officially take control on Jan. 4, Republicans and Democrats would negotiate a power-sharing agreement. If the shift were to occur after Jan. 4, the Senate would have passed a resolution establishing Democratic control. Either way, Vice President Dick Cheney's right to cast tie-breaking votes in the Senate would become a factor in every vote that broke along partisan lines.