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Ray Carter | May 27, 2021

House approves appointment process for U.S. Senate vacancies

With an eye toward Washington, D.C., members of the Oklahoma House of Representatives voted overwhelmingly to give Oklahoma’s governor the authority to appoint a replacement should either of the state’s two U.S. Senate seats be vacated mid-term.

“This truly is an issue of national importance because right now the United States Senate has a 50-50 split,” said Rep. Kyle Hilbert, R-Depew.

Hilbert noted that if a vacancy occurred in Oklahoma 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.

Senate Bill 959, by Sen. Lonnie Paxton and Hilbert, 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.”

Critics suggested such an oath would have little power, echoing comments made when the bill was debated in the Oklahoma Senate. Hilbert conceded the oath would not be binding, but said it could have an impact nonetheless.

“That would be up to them,” Hilbert said. “If they wanted to do that and break their oath, good luck facing the people of Oklahoma when you do that.”

Ultimately, Hilbert said the decision will still be up to voters.

Under current Oklahoma law, a U.S. Senate seat would remain vacant until a special election is held to choose a replacement, a process that can take months.

In contrast, 45 other states allow for appointment of replacements when a U.S. Senate vacancy occurs. Hilbert noted the majority of those appointed to fill vacancies have either not sought or not been re-elected to the office at the next regular election.

“There have been 200 appointees nationwide from this in the last 100 years, and out of those 200 appointees, one third of them didn’t seek re-election on their own, one third lost, and one third won,” Hilbert said.

An earlier version of the legislation required a replacement nominee to receive confirmation from the Oklahoma Senate. That proposal was ultimately abandoned. Hilbert noted that process could involve lengthy hearings and become “something that could drag on for months and months and months.”

“At that point, why even have an appointment process because your vacancy is going to last several months one way or another,” Hilbert said. “You might as well just have the people select someone.”

Rep. Andy Fugate, D-Oklahoma City, noted that the most recent U.S. Senate vacancy in Oklahoma did not result in any loss of representation. Former U.S. Sen. Tom Coburn, R-Muskogee, announced in advance that he would resign effective Jan. 3, 2015, and his successor, U.S. Sen. James Lankford, R-Oklahoma City, was elected through a special election prior to that date and sworn in the same day Coburn vacated the seat.

“The number of days of missed representation in that case: zero,” Fugate said.

He said SB 959 places too much power in the hands of a governor.

“This bill is about a complete lack of representation at the table where the decision is going to be made,” Fugate said. “This bill, it seats just one person at that table: the governor.”

Hilbert noted some resignations occur abruptly, preventing the orderly process seen when Coburn stepped down.

“Ideally, we know well in advance that somebody in this position is going to resign a year ahead of time and we’re able to plan it out and have an election,” Hilbert said. “Everybody agrees that is the best scenario, and I’m so thankful to the late Senator Coburn for setting that process up to set the state of Oklahoma up for success. But the problem is that doesn’t always happen, Mister Speaker. I mean, we saw just this week an unexpected vacancy in a statewide office for the state of Oklahoma. No one was expecting that to happen. But it did.”

Attorney General Mike Hunter announced this week he is resigning effective Jan. 1, citing personal reasons, as news of his divorce filing became public.

Hilbert said the national implications tied to any U.S. Senate vacancy are significant and justify changing the process.

“A vote on this bill not only makes a difference in Oklahoma but makes a difference across the United States of America,” Hilbert said.

SB 959 passed the Oklahoma House of Representatives on a 68-24 vote. It now proceeds to Gov. Kevin Stitt.

Ray Carter Director, Center for Independent Journalism

Ray Carter

Director, Center for Independent Journalism

Ray Carter is the director of OCPA’s Center for Independent Journalism. He has two decades of experience in journalism and communications. He previously served as senior Capitol reporter for The Journal Record, media director for the Oklahoma House of Representatives, and chief editorial writer at The Oklahoman. As a reporter for The Journal Record, Carter received 12 Carl Rogan Awards in four years—including awards for investigative reporting, general news reporting, feature writing, spot news reporting, business reporting, and sports reporting. While at The Oklahoman, he was the recipient of several awards, including first place in the editorial writing category of the Associated Press/Oklahoma News Executives Carl Rogan Memorial News Excellence Competition for an editorial on the history of racism in the Oklahoma legislature.

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