The
most egregious and devastating blow the American experiment has suffered
occurred almost 100 years ago with the passage of the 17thamendment. This
was the amendment that changed the way US Senators were selected, and it
fundamentally changed the character of the government and balance of power
between the states and the federal government.
The
founding fathers designed a government that was similar in some ways to the
British parliament. There was an upper house and a lower
house. In England
this is the house of Lords and the house of commons – a compromise that
addresses the feudal roots of British society by allowing the appointed or
inherited position in the House of Lords to counterbalance the populist House
of Commons. The American innovation to this system was to divorce
the Executive from the legislative body and make it a completely separate
institution, more power than a Prime minister, less power than a King.
The
founders saw wisdom in a system where two houses of legislative power had
disparate motivations. They recognized that people – even (or
especially) elected people – would usually act in their own self-interest
before the bests interests of the common good. Providing separate houses with
disparate motivations for maintaining their place in the government would be a
filter to prevent the “good idea fairy” from enacting poor legislation.
Under
their vision, the country was not a monolithic nation, but an affiliation of
like-minded but autonomous state governments. The role of the Senate
was to serve as the voice of the individual states at the federal
level. The House represented the people, the Senate represented the
State governments. The method of selection to these bodies was very
different, resulting in different behaviors and motivations from the
members. As directly elected representatives with a very short
service term, the House members had to be constantly conscious of the wishes of
their constituency, and to reflect those wishes in their legislative
activities. An individual representative had a relatively small
amount of power, and a relatively small constituency to which to
answer. Representatives had a huge appetite for funds, because
running a political campaign can be an expensive operation.
The
Senate, on the other hand, was normally appointed by the state legislatures,
and therefore was answerable to those bodies regarding their fitness to be
retained in office. The individual Senators had much more power than
a representative did, because there are fewer Senators and they serve three
times as long before being re-elected. This creates a different set of
priorities for a Senator compared to Representative. The Senator cares nothing
for the popular opinion, his allegiance is to the state legislature that put
him in office. His patronage flows through his local government, not
from the political party. His allegiance to the party line is diminished.
The 17th amendment fundamentally changed the character of the Senate. By
allowing the direct election of the Senators by the citizens of the state, it
severed the Senate’s need to be answerable to the legislatures of the
state. Senators no longer had to justify their vote to the State
government, as long as they maintained their popularity with the
electorate. The problem with this is that the electorate cannot
possibly be conversant on all the issues facing the Senate or the ramifications
of those issues to the state governments. Instead of representing
the State governments and preventing federal incursions into state
jurisdictions in violation of the tenth amendment, the prime purpose of the Senator
was to try to bring as much federal money as possible into his state to placate
the electorate. Senators suddenly required large amounts of cash to
fund their reelection campaigns, and cash from the party became extremely
important, which resulted in voting the party line without regard to the
advisability of the legislation, or the impact on the Senator’s
state. Basically it became more important to be popular and wealthy
than to do a good, responsible job. Because of the immense financial
advantage that a sitting Senator had in a popular election, Senators could
expect a career in their position, elected for life as long as they didn’t do
anything to anger their constituents. Because of the financial
requirements to maintain his seat, a Senator’s patronage flows from whoever can
best fund his campaigns. This is not and cannot be a function of the
state legislatures, but becomes that of big donors, and party and political
bosses. Franklin Roosevelt used this financial patronage to great effect
to ram through his destructive agenda and consolidate power in the federal government.
Some
say that the original method of selecting Senators was entrenched
racism. The claim is that the appointment of Senators was one way the
slave-holding and then later segregationist South maintained political power. Proponents
of this claim maintain that such a structure was necessary or the southern
slave states would not have ratified the Constitution. This position
is pure fallacy, since the selection of Senators is done by the legislatures
which are elected by the same people who directly elect
representatives. The racist southern states were far outnumbered by
1913, so this was a relatively moot point and not worthy of requiring a change
in how the Senate was chosen to cure a non-existent problem. Further
the claim that this was a power-sharing compromise ignores some of the very important roles of the Senate
that were reserved under the Constitution, specifically because the Senate was meant to represent the state governments, not the
state electorate.
Examine
your Constitution and you will see the Senate has some unique functions that
were put in place to give the state governments a very prominent role in the
federal government. The Senate has the sole power to try all
impeachments. Under the original system, Senator’s affiliation to
party politics was loose, as party money was not necessary to maintain a
seat. This aloofness gave the Senators the objectivity necessary to
impeach a president who had committed crimes, and the Senator need only explain
his reasons to the state legislature. Today, it has become virtually
impossible to successfully impeach a sitting president, because the act of
conviction is too high a political risk for the Senators. Conversely,
in the event of a Senate that is heavily weighted in one direction, a president
of the opposite party may risk impeachment on a specious charge. The
role of the Senate in impeachments has become that of political ax-man rather
than objective jurist.
Another
unique function of the Senate is the ratification of
treaties. A treaty is a binding commitment on the part of the US with a
foreign nation. Given the founding father’s understanding that we
are not a monolithic sovereign, but a collection of sovereigns, the individual
states were supposed to have a significant say in what treaty obligations that
the collective was placing on them. Thus the role of the Senate in
this very important function. With the direct election of the Senate,
the wishes of the individual state legislatures is moot – a Senator will more
likely vote according to his patron desires than his legislature. A Senator
need not pay any attention to his state legislature, as long as his war chest
is big enough to ensure re-election.
The
Senate shall advise and consent on cabinet and judicial
appointments. A Senate which derives its patronage from the party
will rubber-stamp that party’s
activities regardless of the effect on the states. Recently the US attorney general sued the state of Arizona to halt the
implementation of a state immigration law. Regardless of the where
you stand on the issue, this is a clear tenth amendment issue. If
the Senate were selected by the state legislatures, they would be justifiably
concerned about federal interference in states rights. But because
the majority of the Senate derives their patronage from the party in power,
this is overlooked, and the nomination of this attorney general was never in
jeopardy.
Likewise,
the appointment of Supreme Court justices can have a terrific impact on the
interpretation of state’s rights and interstate issues, and should be of prime
concern to state legislatures. The system envisioned by the founders
was that a nominee could conceivably be vetted by all of the state
congressional assemblies, and the Senators instructed on how to vote during
confirmation. This would result in a much more thorough review of
the qualifications of a nominee, and prevent radicals from either end of the
spectrum from being seated. Today, the Senate derives its patronage from
the party, and if the president and the Senate majority are of the same party,
there is no barrier to the most radical justices being seated on the
bench, prepared to take a red pen to the Constitution.
We’ve
discussed the unique powers of the Senate, and their implications under both
forms of selecting Senators. The day-to-day business of legislation is
also heavily affected by the 17th amendment. Before
this amendment, a Senator was a relatively free agent. He was beholden to
uphold the interests of his patrons, which were necessarily in the state
legislatures. It was a good way to cross review legislation, get a
fresh perspective on it, and to ensure that careful thought was
given. The problem with unfunded mandates was unheard of – such
legislation would never pass the Senate. While an ideologically
polarized electorate might forgive their House leaders for stupidity and
re-elect them, State legislatures are unlikely to tolerate such nonsense as,
“We have to pass this 2000 page bill to find out what’s in it!”
Yes,
there was corruption involved in the selection of Senators by the state legislatures.
But the 17th amendment didn’t cure this, it just traded one
form of corruption for another. Today we have multiple proposals to
limit campaign finances, to make the system fair. These are futile,
particularly when the proposed legislation is being written by the very people
who benefit from campaign finance. At least before the 17th amendment,
the corruption was at a local level, less damaging overall and easier to
prosecute at a local level. Today, a lobbyist need not court
individual state legislators to secure the patronage of a single Senator, he
can straight to the party leaders and provide them with financing, with the
assurance that they will use their powers of patronage to make lower ranking Senators
toe the party line.
Repealing
the 17th amendment will be nearly impossible. There
are only two routes to amending the Constitution. Two thirds of both
houses have to approve an amendment, or two thirds of the states can petition
for a Constitutional congress. The first way is a non-starter: the Senate
will not approve an amendment that will likely result in them losing their
jobs. The idea of calling a Constitutional congress should chill
anyone who reads this, because it would open the door to special interests
wreaking all sorts of mischief with our Constitution. The only
possible way that I can envision is for one or both parties to require as a
litmus test for all Senate nominees to vow to introduce and support an
amendment to repeal the 17th and restore the balance of power
in our government and our country.