Thursday, December 14, 2006

Repeal the 17th Amendment, please!

News that our recently re-elected Democrat Senator Bill Nelson met with the chinless dictator of Syria was damned infuriating. I have contacted Nelson's office to lodge my complaint, but since he's 5 yrs. 11 mos. away from his next re-election effort, Nelson's banking on the short-term memory of today's sound bite American Idol-obsessed culture to have forgotten about his act of moonbattery. (Sidebar: one has to wonder if Hamas' claim that they've been meeting with Democrats was actually true, huh?)

This is a perfect time to discuss why the 17th Amendment, which changed the Constitution to allow for the direct election of U.S. Senators, should be repealed. A little background on the origins of our legislature, and the 17th Amendment:
Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by the legislatures of the states. Each state would have two senators, while representatives would be apportioned based on population.

James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."

The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:

In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.

The system as designed by the framers was in place for a century and a quarter, from 1789 until 1913, when the 17th amendment was adopted. As originally designed, the framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.
The state legislatures used to pick the two Senators to represent the state's interests in our nation's capital. That changed when the 17th Amendment was ratified. Competing theories abound as to why it was ratified:
There have been two principal explanations for changing the Constitution to provide for direct election of senators. Some see the amendment as part of the Progressive movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall and referendums.

Others, however, believe the amendment resulted from the problems the prior constitutional system was creating in state legislatures, who under that system were charged with electing senators. These problems ranged from charges of bribery to unbreakable deadlocks.

Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single senator, not the constitutionally mandated two.

Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the 17th amendment as part of the Progressive movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) -- so that direct democracy as an empowerment of the poor might not have been one of its true goals.

What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a senator -- a far easier remedy than the burdensome process of amending the Constitution that led to the 17th Amendment.

Fortunately, Professor Zywicki offers an explanation for the amendment's enactment that makes much more sense. He contends that the true backers of the 17th amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel -- money.

This explanation troubles many. However, as Zywicki observes, "[a]though some might find this reality 'distasteful,' that does not make it any less accurate."
The "special interests" theory holds water, as we see virtually every politician, especially Senators, susceptible to them. It was difficult for special interests to influence the Senate prior to the 17th Amendment, since Senators were beholden to state legislators and no one else.

What would the benefits be if the 17th Amendment were repealed?
Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money -- decidedly a good thing.

Returning selection of senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the framers. For progressives -- who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process -- returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.
Alas, such repeal is unlikely. Power has been amassed too greatly to let an amendment effort go unanswered, and unfortunately, the electorate is too ignorant on the workings of our government and of the origins of our republic to become motivated to repeal the second worst amendment in our Constitution (the worst being the income tax amendment). All the sound bite citizenry would hear is "Your right to vote for your Senator would be taken away!", and the kneejerk predictable reation would be a collective "NOOOOOOOO!"

Repeal will never happen, but by God, it should!