Archive for the ‘17th Amendment’ Tag

Repeal 17th Amendment   Leave a comment

The Founding Fathers knew that in order to ratify a Constitution and preserve the struggling fledgling that was the confederation of the United States of America, it was essential that both the people and the states have representation in the new federal government.

To assure both democracy and federation, they split the legislative branch. The people would be represented by the directly-elected members of the House of Representatives. The separate states would each be represented by two officials appointed by the state legislatures. Therefore, the House would represent the people and the Senate would represent the states. Without a federalist system of divided, enumerated, and checked powers between the federal and state governments, no union would be possible – the states, wary of potentially losing their sovereignty to an all-powerful national government, would back out of the Constitution, and the world’s most free and prosperous nation would never have become a reality.

According to the Founders’ vision the U.S. senators served at the pleasure of the state legislatures. Because they did not have to stand for popular election at the end of each six-year term, senators could focus on the business of the Senate as it related to the state legislatures, while their lower house counterparts could channel the will of the people. Legislatures would “instruct” senators in what federal legislation they thought would be best for the state and when a senator “went rogue” (like Mark Begich did over the Affordable Care Act), the legislature could recall the offending senator and replace him with someone who understood his job.

In the early 20th century, the progressives argued that the federalist arrangement in place fostered corruption and excessive special interests in the Senate, and was undemocratic to boot. That claim is questionable, although it is true that many state legislatures had difficulty actually appointing senators. There were other remedies that would have preserved republican-federalist ideals, but the progressives used the new media to whip up public concerns about the “lack of democracy” and the “rampant corruption” of the state legislatures. The original intent of the Constitution was that we should be a constitutional republic with some democratic features, but under the cover of “democracy”, the federal Congress quickly passed the 17th Amendment, and sent it to the states for ratification, establishing direct election of U.S. senators. States no longer had any representation in Washington, and the amendment paved the way for even more corruption and special interest influence.

Today, we have a Senate that regularly passes legislation contrary to the interests of the states, because senators have no reason to consider their state’s interest when they pass legislation. This is why the House wasn’t allowed an official vote on the Affordable Care Act. The people didn’t want it and it could never pass there, but senators are beholding to the special corporate interests that got them elected, so they will vote according to the whims of their handlers. How would that vote have fallen out if the senators had been answerable to their state legislatures?

Perhaps most residents in your state opposed nationalized healthcare coverage, but both of your senators voted in favor. Why not? They can’t be recalled at moment’s notice by the state legislative branch, like they could 100 years ago. All they have to do is get enough votes from their citizens – or perhaps enough voter fraud – and they are safe for six years. Missouri may not want Obamacare and Wyoming may not want tough new gun control laws, but thanks to the 17th Amendment, it doesn’t matter what those states or the people who live in them want. Their senators will decide for those states what is actually good for them and pass it on a national level as if Alaska has something in common with New Jersey.

What if the 17th Amendment was repealed?

I don’t know about  your state, but here in Alaska about 60% of voters don’t belong to either of the major political parties. Our state legislature is majority Republican, but many of its members are conservative/libertarian in philosophy. So why is a liberal Democrat representing us in Washington? Because of corruption. Ted Stevens’ corruption and Mark Begich’s corruption and corporate corruption aimed at both of those men. Mark “won” his senatorial seat in 2008 by less than 2% of the vote against a man who had been (wrongfully) convicted of a federal felony two weeks before. That makes thinking people wonder what’s up. Why is Lisa Murkowski still our senator? Because of the nepotism that put her in office in the first place (daddy Frank was the governor and he appointed her) and the corruption that has kept her in office. She resoundingly lost the 2010 Republican primary, came back as a write-in candidate, got the support of the Democrats and was reelected even though nobody I’ve ever talked to (except her dad) thinks she’s a good representative for the people of Alaska.

Does your state have similar stories?

Corruption must be checked and the Senate should do the bidding of the state they represent- not special interests in London or Hong Kong. A constitutional republic operates under the rule of laws, not a rule of men, as does a democracy. The Founding Fathers – who had a far greater sensitivity to tyranny than today’s politician – dedicated one half of the legislative branch to the states for good reason.

By repealing the 17th Amendment, we would restore the federalist system that kept Americans free and prosperous.

I’m not guaranteeing that its repeal would restore liberty and prosperity, but it might be a step in the right direction.

Who is Closer & More Responsive?   Leave a comment

This post requires that you think.

     Is the federal government more responsive to your needs?

      Is your state government more responsive to your needs?

Here in Alaska, we have a long history of federal abuse of authority. Although US Representative Don Young is pretty accessible to his constituents, Senators Lisa Murkowski and Mark Begich are not. Why should they be? Their votes in the Senate are bought and paid for by Outside interests. Alaskans give very little money to them and what we give is swallowed up by those other donations.

Which speaks to the 17th amendment to the US Constitution. Prior to its passage, Senators were selected by state legislatures. State legislatures are, at least in Alaska, drawn from local candidates. I knew Tammy Wilson personally before I voted for her. He’s out of the Legislature now, but I went to high school with Jay Ramras. Pete Higgins is my dentist. I know the Interior delegation and I hope the voters know the other delegations from around the state.

So, the question is … do I trust these people that I know personally to select the senators to represent Alaska in Washington DC or do I trust BP, Conoco-Phillips, the Trial Lawyers Association, and the owners of Rustoleum more? Right now, that second group is in charge of the Senate election in Alaska for 2014. They will decide if Mark Begich continues to not-represent Alaska interests in DC or if someone else will do. The reason they’re in charge is that voters tend to not bother with doing their own research for candidates. They vote for whomever comes on the television more often or produces the most interesting sound bites. It’s a lousy way to select someone to represent Aaska in DC for the next six years, but it’s the way it is.

We could change all that and put people in charge who have time to research the candidates and who can be held accountable if they select someone who doesn’ t represent us. Moreover, before the 17th amendment was passed, the state legislatures had the authority to recall senators who didn’t appropriately represent their state’s interests.

Repeal the 17th! It’s the right thing to do. Remember, the Senate is never going to vote to change what lines their pockets so nicely, so a convention of the states to propose amendments to the Constitution is the only way we repeal this and bring governance back to the state level where is will be much more controllable.

Kick the big corporations to the curb and take back the Senate.

 

17th Amendment Ate Liberty   Leave a comment

The 17th Amendment made the Senate more democratic … and that has not been a good thing. The second Progressive Era amendment provided for direct election of senators. That sounds good, right? Not so much. It has led to the massive expansion of federal power over the past several decades, for one thing.

The United States, in case you were asleep in Government class during the five minutes in which the teacher covered it, is not a democracy. We are a constitutional republic. Many of our strengths lie in our undemocratic institutions. Took a look at the Supreme Court. Is that a democratic institution? Heck, no! They’re appointed for life, not elected every 4-6 years. Look closely at the Constitution itself. It requires any changes to its structure to have the consent of a supermajority and it contains the Bill of Rights, which is an explicitly counter-majoritarian component of national law. Strong protections for free speech and religion, the right to bear arms, due process, privacy and the right to a jury trial are triumphs of minority rights. Liberty, not democracy, is America’s highest idea.

Thus, the American system was deliberately designed to balance power between the various branches of government, guaranteeing individual rights against majority rule and protecting the people from tyranny whether we liked it or not. The United States government was arranged as a permanent bulwark against federal encroachment. “Changing times” wasn’t an acceptable justification for the undoing of this system in 1913 and it still isn’t. Wilson-era progressive philosophy aside, the federal government was not intended to be a wholly separated layer of government. It was meant to be intertwined with the states to such an extent that it could not ride roughshod over their interests without strong opposition.

As James Madison resolved during the debate over the Bill of Rights:

The state legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of the people’s liberty.

Madison made clear in the Federalist Papers, in order to defend the vertical checks and balances that allow America’s federal system to function, senators would be “elected absolutely and exclusively by state legislatures.” The House is the people’s representative body. The Senate was supposed to represent the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously.

It makes no sense to argue that returning to the original arrangement would “take away” the “rights” of the people than it does to maintain that not being able to vote directly for Supreme Court justices violates our democracy. Everything has its place! The Senate was not designed to indulge popular sovereignty. Although it’s been a while since the original intent of the Constitution was recognized, the states are not regional departments of the federal government. The architects of our Constitution hard-wired the state legislatures into the documents structure, so that states would have a working mechanism by which to resist the expansion of federal power.

The 17th Amendment short-circuited that. The states lost their place at the federal table when the Senate became another House of Representatives. Federalism was deeply damaged and “all government, domestic and foreign, in little as in great things,” is “drawn to Washington as the center of all power” (Thomas Jefferson). Returning the selection of senators to state legislatures would help to focus citizens’ eyes locally, where they belong.

The primary argue for the 17th Amendment in 1913 was a reduction in corruption. Money was said to be rife in politics; direct elections would stamp it out. Lobbying by big business was staining the republic; direct elections would cut the buggers off at the knee. The small constituency that a senator served effectively gave him tenure; an amendment would make the body competitive. Senates were exhibiting extreme moral turpitude; the rigors of direct election would make them moral.

Did we get what we wanted by taking a machete to Madison’s handiwork? There is more money in politics than ever before; direct elections have served only to cut out the middleman between lobbyists and politicians; senators rarely lose their seats; and Ted Kennedy killed a woman and got away with it. Need I elaborate?

In retrospect, the amendment failed to accomplish what was expected of it, and in most cases failed dismally. Exorbitant expenditures, alliances with well-financed lobby groups, and electioneering sleights-of-hand have continued to characterize Senate campaigns long after the constitutional nostrum was implemented. In fact, such tendencies have grown increasingly problematic. (CH Hoebeke, Humanitas, 1996)

The 17th is a testament to overarching modernist hubris – an embrasure of temporary over the permanent.  Sadly, it benefits those who would be required to amend it, so the only chance for it to be repealed/amended is a Constitutional convention.  Ain’t democracy grand?

How We Ended Up with Direct Election   1 comment

I’m not a fan of the 17th Amendment, so this is a hard topic to discuss dispassionately. For now, I don’t wish to discuss the merits of direct election of senators, but rather the process that was used to bring it about. The merits or lack thereof are a different topic, which I will deal with later.

After the Civil War, members of Congress occasionally suggested that states apply for a convention for proposing amendments, but there was little campaigning for one. I’m going to suggest that the Civil War pretty much cowed most states, even the northern ones, from asserting their rights, by sending a clear message that the federal government would put down by force any attempts at state sovereignty.

The Civil War ended the United States of America, a federation of diversity governed from the people through the states to the federal government and forced us toward a one-size-fits-all top-down national government in which the states were afraid to speak up for their rights. Those rights did not go away; they simply were no longer exercised.

It was nearly 40 years (about a generation, interestingly) before there was a wide-spread outcry for a states-application-for-convention movement. Those who had not lived through the Civil War felt a bit more comfortable asserting states rights once more. The national government couldn’t have that and, more importantly, significant and powerful special interest groups could not allow it.

It was the turn of the 20th century. Mankind tends to embrace change at the start of centuries. The progressive movement was gaining speed. If you remember the history of the progressives, they were mostly “resort liberals” from the East Coast who thought America should emulate Europe. Forget that many Americans had left Europe to come here; we were supposed to bring Europe here so they couldn’t get away. Additionally, these know-it-alls believed (still believe) themselves to be of superior intellect and moral fiber compared to the rest of American society.

The original Constitution had specified that members of the House of Representatives were to be elected for two-year terms by those voters in each state who had “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Because in nearly all states voting qualifications for the lower legislative chamber were fairly minimal, this rendered the House a very democratic institution – a creature of the people.

To balance that democratic influence with seasoning and stability and to give the states a role in federal governance, the Framers prescribed that two Senators be elected by each state legislature for six-year terms. I’m not conjecturing this. Read the Anti-Federalist Papers which includes the notes from debates at the 1787 Convention. This was a deliberate republican safeguard to provide balance against the inherent excesses of democracy. This method of election has been credited widely with producing, at least during the first half of the 19th century, a Senate of good quality and some Senators of outstanding quality. There were, however, at least three drawbacks to the system:

  • smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). Although cases where candidates purchased Senate seats from state lawmakers were few during the early years, they multiplied after 1850.
  • the system was prone to deadlock. State legislatures sometimes had to ballot for months on end while their state remained underrepresented in Congress. A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905, there were 45 deadlocked senatorial elections in 20 different states. Deadlock often was broken by “stampeding” – last-minute election of a dark horse who no one previously had thought to be of senatorial material.
  • because people “voted” for a Senate candidate by voting for state legislators, federal and state issues became bundled, with state issues often entirely submerged, both among the voters (the Lincoln-Douglas senatorial race of 1858 is the most famous example) and among state lawmakers.

Allegedly to cure all of these ills, the progressives sought to move election of U.S. senators from the legislatures to the people of the several states. American historians, who tend to sympathize with the progressives, sometimes imply that direct election was the only possible corrective, and they sometimes depict the campaign as opposing idealistic progressive reformers to the “greedy corporations” that controlled a “Millionaires’ Club” of “plutocratic” senators. As is often the case in history, the truth is more complicated.

There were available remedies short of constitutional amendment. Article I, Section 4, Clause 1 of the Constitution provides as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

 Although each state initially set its own election rules for both House and Senate, Congress was permitted to override those rules to a considerable extent. Thus, Congress could alter the “Manner of holding Elections” for senators within the state legislatures to specify procedures less subject to deadlock. For example, Congress could require that elections be conducted by joint votes of both legislative chambers. It could mandate that a winner need only a plurality rather than a majority of votes.

The Senate had the power, which it had occasionally exercised, to expel members for corruption. A constitutional amendment was not required to strengthen the relevant law or Senate rules. The worst abuses of the legislative election system were solvable without taking the election from the legislatures.

Congress enacted poorly-crafted regulatory legislation in 1866 to relieve the deadlock problem. The progressives used this as “proof” that a mere change in the law would not do.  The fact that Congress considered and rejected the plurality winner rule several times strongly suggests that progressives had more on their minds than corruption, deadlock and issue bundling.

What else might they have been after? Statistical research by historian John D. Buenker shows that the contest was not really between “idealists” and “plutocrats”. Buenker concludes that a key component in the coalition for direct election consisted of the big-city political machines, mostly (but not exclusively) Democrat. The urban bosses saw direct election as a way to amass greater shares of power for themselves and for the ethnic groups they represented.

In some states, the goal was more purely partisan – direct election was seen as a way to weaken Republican senatorial candidates while benefitting Democrats and Populists. For example, Rhode Island pitted urban-based Democrats, aided by a few Progressives and Republicans from similar constituencies against the rural and small-town-based Republican organization. Oh, wait … urban versus rural … oh, my.

More importantly, the progressives strongly favored augmenting federal power. Direct election would end state participation in Congress, and thereby facilitate federal incursion into areas of policy traditionally under state control – education, health, safety, food inspections, manufacturing, road construction, elections, parks, etc. All of this happened eventually, if not immediately.

Direct election enjoyed very high levels of popular support – perhaps even higher than the modern popularity of a balanced-budget requirement. Direct election seemed a viable way of attacking corruption and state legislative deadlock, just as a balanced-budget requirement is seen now as a way of imposing more fiscal restraint.

State legislators also appreciated the cause. Even though transferring senatorial elections to the voters would reduce the power of state lawmakers, most of those lawmakers had become thoroughly disgusted with deadlock, long periods without senatorial representation, and the overshadowing of state issues in state legislative elections. It was thought that states could focus on their own issues more.

The media did a wonderful job of popularizing the notion of direct election of Senators, so that the public broadly wanted this change. It’s unlikly that people fully understood what they were asking for. My grandmother’s father and uncle were involved in state politics in their home state and family archives suggest they were opposed to the change, but their constituents thought it was a GREAT idea.

Efforts to induce Congress to propose an amendment had proved fruitless. When the state application campaign began in 1899, the House of Representatives already had voted three times for such an amendment; the Senate killed it each time. The same thing happened again in 1900 and 1902. Most senators simply had no interest in altering the method of election that had elected them. A cause with overwhelming public support seemed permanently blocked in Congress, just as more recent causes with overwhelming public support, such as proposals for a balanced budget amendment and term limits, have been blocked in Congress. This might be a cautionary tale.

Advocates of direct election understood that Americans often have amended their Constitution not so much to change the fundamentals of the system as to restore or reinforce those fundamentals. Those advocates therefore cast their amendment in those terms. As the 1911 Senate Judiciary Committee report, recommending the 17th Amendment, said, social change required altering the mode of election, “not for the purpose of changing the fundamental principles of our Government, but for the purposes of maintaining the very principles which the fathers sought to establish.” America, it was said, is a democracy, but there’s this whole chamber in DC that is not elected by the people. We need to correct that.

Americans at the time of the direct election movement remembered most of their constitutional history, understanding that when applications from two-thirds of the states are received, Congress has no choice in the matter – it must call a convention. They also understood that state applications can limit the subject matter, but that the convention, not the states, actually drafts the amendment. States targeted their applications toward direct elections, while not purporting to dictate the amendment’s precise language.

On the other hand, there was enough constitutional amnesia that opponents were able to argue that a convention for proposing amendments was a “constitutional convention” which held an inherent risk of runaway. This appears to be the first time such beliefs were widely broadcast and some proponents played into their adversaries’ hands by referring to the assembly as a “constitutional convention.” The belief was not widely enough held to derail the movement.

The campaign began with various efforts to induce Congress to report an amendment of its own. Nebraska, Texas and Pennsylvania requested during the 1890s, while Georgia, Arkansas and Oklahoma formed committees to explore the issue in the first decade of the 20th century.

The Pennsylvania application form, which it sent on to other states, read:

Whereas, A large number of State Legislatures have at various times adopted Memorials and Resolutions in favor of election of United States Senators by popular vote; And Whereas, The National House of Representatives has on four separate occasions, within recent years, adopted resolutions in favor of this proposed change in the method of electing United States Senators, which was not adopted by the Senate;

And Whereas, Article V of the Constitution of the United States provides that Congress, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, and believing there is a general desire upon the part of the citizens of the State of Pennsylvania that the United States Senators should be elected by a direct vote of the people Therefore, be it resolved … That the Legislature of the State of Pennsylvania favors the adoption of an amendment to the Constitution which shall provide for the election of United States Senators by popular vote, and joins with other States of the Union in respectfully requesting that a convention be called for the purpose of proposing an amendment to the Constitution of the United States, as provided for in Article V of the said Constitution, which  amendment shall provide for a change in the present method of electing United States Senators, so that they can be chosen in each State by a direct vote of the people.

Resolved, That a copy of this concurred Resolution, and application to Congress for the calling of a convention, be sent to the Secretary of State of each of the United States, and that a similar copy be sent to the President of the United States Senate, and the Speaker of the House of Representatives.

This carefully drafted form clarified that the legislature was applying formally for an Article V convention to consider only the particular subject matter of direct election of senators. This was consistent with the Founders’ expectations and it reassured others that the applying state did not seek to rewrite the entire Constitution. The approach of limiting the convention to a single issue also was familiar to state lawmakers since a single-subject rule commonly was (and still is) applied to state bills. The form properly named the assembly sought as a “convention … for the purpose of proposing an amendment,” rather than a “constitutional convention.”

Soon, there was a flood of similar direct-election applications based on the same principles as the Pennsylvania application. Minnesota, South Dakota, Washington, Oregon, Oklahoma, Louisiana all filed applications in short order. Despite some confusion sowed by the opposition, for the most part the organizers of the direct election application campaign remembered constitutional rules laid down by the Founders:

(1) single-subject applications were permitted and expected,

(2) applications could not actually draft the amendment, and

(3) the procedure was designed to make reforms that Congress would not undertake itself.

(4) an amendments convention was a gathering of delegates of states.

The Article V convention never took place because the Senate voted the amendment out for ratification by the states just short of the requisite number of applications. Since that time, there has been strong public sentiment against such a convention, owing to a lack of understanding of the constitutional constraints that have always been in place.

When Democracy Ate Liberty   Leave a comment

The 17th Amendment made the Senate more democratic … and that has worked out so well for liberty.  NOT!!!

The second Progressive Era amendment provided for direct election of senators. That sounds good, right? Not so much. It has led to the massive expansion of federal power over the past decade, for one thing, which has severely restricted liberty.

The United States, in case you were asleep in Government class during the five minutes in which the teacher covered it, is not a democracy. We are a constitutional republic. This distinction is vital because many of our strengths lie in our undemocratic institutions.

Take a look at the Supreme Court. Is that a democratic institution? Heck, no! Twelve old fogies selected for life without the possibility of impeachment! Selected by the President without the people being allowed to vote! Congress generally rubber-stamps his nominations. I see no democracy in that institution.

Look closely at the Constitution itself. It requires any changes to its structure to have the consent of a supermajority and it contains the Bill of Rights, which is an explicitly counter-majoritarian component of national law. Strong protections for free speech and religion, the right to bear arms, due process, privacy and the right to a jury trial are triumphs of minority rights. Republics protect minorities. Democracies roll over them.

Liberty, not democracy, is America’s highest idea.

Thus, the American system was deliberately designed to balance power between the various branches of government, guaranteeing individual rights against majority rule and protecting the people from tyranny whether they liked it or not. The United States government was arranged as a permanent bulwark against federal encroachment.

“Changing times” wasn’t an acceptable justification for the undoing of this system in 1913 and it still isn’t. Wilson-era progressive philosophy aside, the federal government was not intended to be a wholly separated layer of government. It was meant to be intertwined with the states to such an extent that it could not ride roughshod over their interests without strong opposition. As James Madison resolved during the debate over the Bill of Rights:

The state legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of the people’s liberty.

Madison made clear in the Federalist Papers, in order to defend the vertical checks and balances that allow America’s federal system to function, senators would be “elected absolutely and exclusively by state legislatures.” The House is the people’s representative body. The Senate was supposed to represent the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously. In other words, this is one of those rare instances in the constitutional convention where everybody agreed.

It makes no more sense to argue that returning to the original arrangement would “take away” the “rights” of the people than it does to maintain that not being able to vote directly for Supreme Court justices violates our democracy. Everything has its place! The Senate was not designed to indulge popular sovereignty. It was designed to give the states a voice in the federal government, so they might act as a brake on federal usurpation of individual sovereignty.

Although it’s been a while since the original intent of the Constitution was recognized, the states are not (contrary to popular belief) regional departments of the federal government. The architects of our Constitution hard-wired the state legislatures into the document’s structure, so that states would have a working mechanism by which to resist the expansion of federal power.

The 17th Amendment short-circuited that. The states lost their place at the federal table when the Senate became another House of Representatives. Federalism was deeply damaged and “all government, domestic and foreign, in little as in great things,” is “drawn to Washington as the center of all power” (Thomas Jefferson). Returning the selection of senators to state legislatures would help to focus citizens’ eyes locally, where they belong.

The primary argue for the 17th Amendment in 1913 was a reduction in corruption.

  • Money was said to be rife in politics; direct elections would stamp it out.
  • Lobbying by big business was staining the republic; direct elections would cut the buggers off at the knee.
  • The small legislative constituency that a senator served effectively gave him tenure; an amendment would make the body competitive.
  • Senators were exhibiting extreme moral turpitude; the rigors of direct election would make them moral.

Did we get what we wanted by taking a machete to Madison’s handiwork?

  • There is more money in politics than ever before;
  • direct elections have served only to cut out the middleman between lobbyists and politicians;
  • senators rarely lose their seats; and
  • Ted Kennedy killed a woman and got away with it.

Need I elaborate?

In retrospect, the amendment failed to accomplish what was expected of it, and in most cases failed dismally. Exorbitant expenditures, alliances with well-financed lobby groups, and electioneering sleights-of-hand have continued to characterize Senate campaigns long after the constitutional nostrum was implemented. In fact, such tendencies have grown increasingly problematic. (CH Hoebeke, Humanitas, 1996)

The 17th is a testament to overarching modernist hubris – an embrasure of temporary over the permanent. Sadly, it benefits those who would be required to amend it, so the only chance for it to be repealed/amended is an amendments convention.

Ain’t democracy grand?

I’d rather have liberty!

Most Successful Use of Article V   2 comments

I’m not a fan of the 17th Amendment, so this is a hard topic to discuss dispassionately. For now, I don’t wish to discuss the merits of direct election of senators, but rather the process that was used to bring it about. The merits or lack thereof are a different topic.

After the Civil War, members of Congress occasionally suggested that states apply for a convention for proposing amendments, but there was little campaigning for one. I’m going to suggest that the Civil War pretty much cowed most states, even the northern ones, from asserting their rights, by sending a clear message that the federal government would put down by force any attempts at state sovereignty.

It was nearly 40 years (about a generation, interestingly) before there was a wide-spread outcry for a states-application-for-convention movement. Those who had not lived through the Civil War felt a bit more comfortable asserting states rights once more. It was the turn of the 20th century when mankind tends to embrace change. The progressive movement was gaining speed. If you remember the history of the progressives, they were mostly resort liberals from the east coast who thought America should emulate Europe. Additionally, they believed (believe) themselves to be of superior intellect and moral fiber compared to the rest of American society.

The original Constitution had specified that members of the House of Representatives were to be elected for two-year terms by those voters in each state who had “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Because in nearly all states voting qualifications for the lower legislative chamber were fairly minimal, this rendered the House a very democratic institution – a creature of the people.

To balance that democratic influence with seasoning and stability and to give the states a role in federal governance, the Framers prescribed that two Senators be elected by each state legislature for six-year terms. I’m not conjecturing this. Read the Anti-Federalist Papers which includes the notes from debates at the 1787 Convention. This was a deliberate republican safeguard to provide balance against the inherent excesses of democracy. This method of election has been credited widely with producing, at least during the first half of the 19th century, a Senate of good quality and some Senators of outstanding quality. There were, however, at least three drawbacks to the system:

• smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). Although cases where candidates purchased Senate seats from state lawmakers were few during the early years, they multiplied after 1850 (this coincided with the rise of large corporations, interestingly).
• the system was prone to deadlock. State legislatures sometimes had to ballot for months on end while their state remained underrepresented in Congress. A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905, there were 45 deadlocked senatorial elections in 20 different states. Deadlock often was broken by “stampeding” – last-minute election of a dark horse who no one previously had thought to be of senatorial material.
• because people “voted” for a Senate candidate by voting for state legislators, federal and state issues became bundled, with state issues often entirely submerged, both among the voters (the Lincoln-Douglas senatorial race of 1858 is the most famous example) and among state lawmakers.

Allegedly to cure all of these ills, the progressives sought to move election of U.S. senators from the legislatures to the people of the several states. American historians, who tend to sympathize with the progressives, sometimes imply that direct election was the only possible corrective, and they sometimes depict the campaign as opposing idealistic progressive reformers to the “greedy corporations” that controlled a “Millionaires’ Club” of “plutocratic” senators. As is often the case in history, the truth is more complicated.

There were available remedies short of constitutional amendment. Article I, Section 4, Clause 1 of the Constitution provides as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

Although each state initially set its own election rules for both House and Senate, Congress was permitted to override those rules to a considerable extent. Thus, Congress could alter the “Manner of holding Elections” for senators within the state legislatures to specify procedures less subject to deadlock. For example, Congress could require that elections be conducted by joint votes of both legislative chambers. It could mandate that a winner need only a plurality rather than a majority of votes.

The Senate had the power, which it had occasionally exercised, to expel members for corruption. A constitutional amendment was not required to strengthen the relevant law or Senate rules. The worst abuses of the legislative election system were solvable without taking the election from the legislatures.

Congress enacted poorly-crafted regulatory legislation in 1866 to relieve the deadlock problem. The progressives used this as “proof” that a mere change in the law would not do. The fact that Congress considered and rejected the plurality winner rule several times strongly suggests that progressives had more on their minds than corruption, deadlock and issue bundling.

What else might they have been after? Statistical research by historian John D. Buenker shows that the contest was not really between “idealists” and “plutocrats”. Buenker concludes that a key component in the coalition for direct election consisted of the big-city political machines, mostly (but not exclusively) Democrat. The urban bosses saw direct election as a way to amass greater share of power for themselves and for the ethnic groups they represented. In some states, the goal was more purely partisan – direct election was seen as a way to weaken Republican senatorial candidates while benefitting Democrats and Populists. For example, Rhode Island pitted urban-based Democrats, aided by a few Progressives and Republicans from similar constituencies against the rural and small-town-based Republican organization.

Interesting how we’re still struggling with the dichotomy between the big cities and the rural-exurban communities.

More importantly, the progressives strongly favored augmenting federal power. Direct election would end state participation in Congress, and thereby facilitate federal incursion into areas of policy traditionally under state control – education, health, safety, food inspections, manufacturing, road construction, elections, parks, etc.

Direct election enjoyed very high levels of popular support – perhaps even higher than the modern popularity of a balanced-budget requirement. Direct election seemed a viable way of attacking corruption and state legislative deadlock, just as a balanced-budget requirement is seen now as a way of imposing more fiscal restraint.

State legislators also appreciated the cause. Even though transferring senatorial elections to the voters would reduce the power of state lawmakers, most of those lawmakers had become thoroughly disgusted with deadlock, long periods without senatorial representation, and the overshadowing of state issues in state legislative elections.

Efforts to induce Congress to propose an amendment had proved fruitless. When the state application campaign began in 1899, the House of Representatives already had voted three times for such an amendment; the Senate killed it each time. The same thing happened again in 1900 and 1902. Most senators simply had no interest in altering the method of election that had elected them. A cause with overwhelming public support seemed permanently blocked in Congress, just as more recent causes with overwhelming public support, such as proposals for a balanced budget amendment and term limits, have been blocked in Congress.

Advocates of direct election understood that Americans often have amended their Constitution not so much to change the fundamentals of the system as to restore or reinforce those fundamentals. Those advocates therefore cast their amendment in those terms. As the 1911 Senate Judiciary Committee report, recommending the 17th Amendment, said, social change required altering the mode of election, “not for the purpose of changing the fundamental principles of our Government, but for the purposes of maintaining the very principles which the fathers sought to establish.” America, it was said, is a democracy, but there’s this whole chamber in DC that is not elected by the people. We need to correct that.

Americans at the time of the direct election movement remembered most of their constitutional history, understanding that when applications from two-thirds of the states are received, Congress has no choice in the matter – it must call a convention. They also understood that state applications can limit the subject matter, but that the convention, not the states, actually drafts the amendment. States targeted their applications toward direct elections, while not purporting to dictate the amendment’s precise language.

On the other hand, there was enough constitutional amnesia that opponents were able to argue that a convention for proposing amendments was a “constitutional convention” which held an inherent risk of runaway. This appears to be the first time such beliefs were widely broadcast and some proponents played into their adversaries’ hands by referring to the assembly as a “constitutional convention.” The belief was not widely enough held to derail the movement.

The campaign began with various efforts to induce Congress to report an amendment of its own. Nebraska, Texas and Pennsylvania requested during the 1890s, while Georgia, Arkansas and Oklahoma formed committees to explore the issue in the first decade of the 20th century.

The Pennsylvania application form, which it sent on to other states, read:

Whereas, A large number of State Legislatures have at various times adopted Memorials and Resolutions in favor of election of United States Senators by popular vote; And Whereas, The National House of Representatives has on four separate occasions, within recent years, adopted resolutions in favor of this proposed change in the method of electing United States Senators, which was not adopted by the Senate;
And Whereas, Article V of the Constitution of the United States provides that Congress, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, and believing there is a general desire upon the part of the citizens of the State of Pennsylvania that the United States Senators should be elected by a direct vote of the people Therefore, be it resolved … That the Legislature of the State of Pennsylvania favors the adoption of an amendment to the Constitution which shall provide for the election of United States Senators by popular vote, and joins with other States of the Union in respectfully requesting that a convention be called for the purpose of proposing an amendment to the Constitution of the United States, as provided for in Article V of the said Constitution, which amendment shall provide for a change in the present method of electing United States Senators, so that they can be chosen in each State by a direct vote of the people.
Resolved, That a copy of this concurred Resolution, and application to Congress for the calling of a convention, be sent to the Secretary of State of each of the United States, and that a similar copy be sent to the President of the United States Senate, and the Speaker of the House of Representatives.

This carefully drafted form clarified that the legislature was applying formally for an Article V convention to consider only the particular subject matter of direct election of senators. This was consistent with the Founders’ expectations and it reassured others that the applying state did not seek to rewrite the entire Constitution. The approach of limiting the convention to a single issue also was familiar to state lawmakers since a single-subject rule commonly was (and still is) applied to state bills. The form properly named the assembly sought as a “convention … for the purpose of proposing an amendment,” rather than a “constitutional convention.”

Soon, there was a flood of similar direct-election applications based on the same principles as the Pennsylvania application. Minnesota, South Dakota, Washington, Oregon, Oklahoma, Louisiana all filed applications in short order. Despite some confusion sowed by the opposition, for the most part the organizers of the direct election application campaign remembered constitutional rules laid down by the Founders:

  1. single-subject applications were permitted and expected,
  2. applications could not actually draft the amendment, and
  3. the procedure was designed to make reforms that Congress would not undertake itself.
  4. an amendments convention was a gathering of delegates of states.

The Article V convention never took place because the Senate voted the amendment out for ratification by the states just short of the requisite number of applications. Since that time, there has been strong public sentiment against such a convention, owing to a lack of understanding of the constitutional constraints that have always been in place.

It’s important to note, however, that we are two states applications away from a Article V convention for a balanced budget amendment. Historically, Congress acts at this point.

Do we think this Congress will??????

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