The Washington Post reported a resurfacing of the idea to repeal the 17th amendment to allow state legislature election of U.S. Senators. The American Legislative Exchange Council, ALEC, a libertarian corporate-funded think tank, in Section 3. of their model Amendment proposal would have U.S. Senators subject to recall by state legislatures at any time, rather than holding six-year terms chosen by direct election of the people.
The founder’s intent was to make two-thirds of the Senate incumbents as each presidential election was held, thus making a two-thirds majority to make treaties or go to war separate from the popularity of any newly elected President and his party. Making U.S. Senator terms arbitrarily conforming to biennial electoral swings in state legislatures would permanently damage the Senate’s independence from the President as a Legislative check and balance in their advice and consent to any national policy proposed by the Executive.
State sovereignty and funding Senate elections
The ALEC 17th Amendment repeal argument is that state sovereignty has been eroded, not by the 14th Amendment requiring equal protection under the law for all citizens, but by the direct election of U.S. Senators.
It is true that U.S. Senators in both major political parties in the 20th century, in conjunction with Supreme Court holdings, have advanced the protections of the Bill of Rights to all U.S. citizens in every state by the authority of the 14th Amendment. Corrupt state factions are no longer sovereign to violate the rights of individuals as state citizens because they are also U.S. citizens.
Another argument for the change is that it will eliminate the need for raising vast sums of money for the average Senate race by reducing the need to buying a few drinks for state legislators in a hospitality suite before each state election.
However, with only one-third of the Senate seats up for election each biennium, national interest groups will redouble their efforts to influence individual state legislators at the time of each Senate election, rather than spending money to influence the entire voting electorate. The amounts of money will not change, only the numbers the money is to influence — millions to persuade a couple hundred local elective officials rather than an entire state.
State gerrymandering and state sovereignty
The liberal-leaning watchdog group, the Center for Media and Democracy article on the ERIC intitiative called the effort an attempt to “gerrymander” the U.S. Senate. Ten U.S. Senators now directly elected by state populations in states with gerrymandered majority Republican legislatures could conceivably lose their seats in Congress.
Previously, U.S. Senators were selected by state legislatures and political party bosses beholden to powerful industries. Their corruption scandals fueled some of the great muckraking investigative journalism of the early 20th Century.
Because states were Constitutionally charged with the responsibility of selecting U.S. Senators, between 1908 and 1912 at the passage of the 17th Amendment, some states chose direct election rather than legislative appointment before the national requirement. The ERIC proposal would take that discretion away from states and their people that existed before the 17th Amendment with its Section 2., “This procedure may not be modified by state initiative or referendum”.
Balanced budget and state sovereignty
While taking away states rights to choose how their U.S. Senators are elected, ERIC amendment proponents suggest that the states will again be sovereign as they were before the U.S. Constitution under the Articles of Confederation, and there will be a balanced federal budget.
But in the federal system of government since 1789, the federal government assumed all of the state debt associated with their previous sovereign practice and Revolutionary War debt, and nationalized it. Much of the recent U.S. debt has been incurred to fund the wars in Iraq and Afghanistan; the states will not assume that debt in an effort to regain their sovereignty relative to the national government.
The balanced budget argument is a distracting and misleading red herring. The federal balanced budget law passed in the 1960s could not restrain subsequent Congresses, because the sovereign people electing their representatives in each time are superior to any previous legislation. The present generation cannot be held in thrall to a past one.
Why return to corrupt state legislatures
The ERIC proposal is a bad idea. The point of the 17th Amendment reform was to remove the decision from corrupting interests controlling the state legislature, and place it in the hands of the people, so that the Senators would reflect the interests of the people, not railroads or the biggest state industry alone.
In the modern context, the special interests would be gerrymandering political parties with a strait-jacketed ideological rule taking over government from the sovereign people in each state.
In Virginia’s case, the state Constitution requires “contiguous compact districts” at state and Congressional levels, but neither the state legislature nor the state judiciary to date have protected the explicit direction of the people in their Constitution.
It is not the U.S. Senate that is corrupt in this context, but the state governments which are, yet again, corrupt in yet another way. This time the corruption of the people’s will expressed in the state constitution is by political partisanship rather than big business interests.
Advantages of direct popular election for U.S. Senators
Direct election of U.S. Senators is useful. People change their minds and choose new parties. They should not be locked into an earlier generation’s choice, not even to a party that may hold the majority at census redistricting time.
Things in our political, economic and social life as a state or national community can go wrong, like the real estate collapse. When one method or policy fails the community, the people who make up the community should be able to freely choose another.
Things can be improved, like infrastructure or education. Sometimes new paths can be tried on their promise, either in experimental steps or wholesale. Let the people decide their representatives in the Congress to influence the national solutions that they propose.
The people in a democratic republic have the right to freely choose their representatives at every level of government, local, state and national. The U.S. government should maintain direct popular election of U.S. Senators.
— R.G. Zimermann, the Virginia historian.