Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.
Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.
Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.
Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.
Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
The Problem
The Constitution originally provisioned for state legislatures to select each state's two senators. The idea was for the Senate to represent the interests of states as states, not simply as another chamber representing the same constituency as the House of Representatives. The Federalist Papers speak time and again of checking the passions of men and balancing the branches of government by using competing interests and differing power sources to prevent one group from gaining domination. A Senate that was, in essence, composed of ambassadors from the several States provided a balance in the deliberation of federal legislation and foreign policy because the origin and composition of its membership was different from that of the House.
Corruption in the senatorial selection process and deadlocked legislatures led to states going years without representation in the Senate and the perception that the Senate did not represent the interests of the People. Agitation for changing the way Senators were selected grew throughout the 19th century, culminating with the Progressive Movement of the early twentieth century and the passage of the Seventeenth Amendment to the U.S. Constitution in 1913. Direct election of U.S. senators was instituted, removing the place of the States in the federal scheme (left only with the chance to lobby, negotiate, or sue) and effectively turning the Senate into an extension of the House of Representatives.
There are several areas impacted by the passage of the Seventeenth Amendment. I will review each of them in turn, but the affected areas as I see them are as follows:
- Nature of the Senate
- federalism
- Campaign finance
Nature of the Senate
Since the Senate derives its base of power and support from the People, the Senate is no longer "a salutary check on the government" (Federalist 62) because senators are not independent of the passions of the times or the direct influence of the public. A senatorial selection process driven by state legislatures in careful deliberation and cool contemplation has a better chance of producing a Senate of the brightest minds and most talented people from all segments of society than do yet another round of direct elections driven by the same old political process. Politics has an important place in our democratic republic, but so does competent thought, careful debate, and independent questioning of the prevailing opinion.
Witness,
- The Senate no longer considers the constitutional appropriateness of legislation, affecting the balance of power between Washington, D.C., and the states and arguably leading to a more active Supreme Court, which finds itself ruling on legislation that probably never should have been passed;
- Rather than the Senate serving as a judicious, independent and legislatively empowered investigative body, independent commissions (e.g., BRAC - the Base Closure and Realignment Commission), study groups (e.g., the Iraq Study Group or 9/11 Commission), and the recently-lapsed independent counsel law are needed when our government needs to transcend politics.
The Senate is effectively a mirror of the House, passing legislation based on its popularity and providing no thought that transcends the petty Talking Points of the day.
Federalism
Since the passage of the Seventeenth Amendment, the growth of the federal government has been exponential and all pretenses of a Congress with specific, enumerated powers as outlined in Article I, Section 8 of the Constitution have been thrown out the window. The "necessary and proper" clause is the constitutional limit of Congress's power, and the definition and scope of this clause are expanded with the needs of the country. There is no longer a structural component of the federal system that is in place to push back on the expansion of federal power and to represent and support the place of the States in the federal system.
A healthy federal system facilitates several things:
- local issues and concerns are managed and decided by local jurisdictions, leaving federal energy free to focus on more national concerns and priorities (witness the manner in which abortion has entangled presidential politics and judicial nominations);
- power is diffused and not concentrated;
- proving grounds for future national leaders among state and local governments;
- competition among the States, encouraging innovation and creative problem-solving;
Beyond the implementation of more parchment barriers in the form of Article I, Section 8 or continued reliance on the shifting sands of the Supreme Court, a structural mechanism to help define the shifting horizons of federal and state power would reinstate federalism as an active, primary part of the legislative process and renew appreciation for its importance to the American scheme of governance.
Campaign finance
The direct election of senators arguably removed the problem of bribery (at least from among the ranks of the state legislators), but now that senators campaign among a wider electorate, the costs of running senatorial campaigns have sky-rocketed. Among elected positions in America, Senate campaigns are second in expense only to presidential campaigns (which are beset with their own issues and problems).
The Explanation
Section One. The Seventeenth Article of Amendment to the Constitution of the United States is hereby repealed.
This section simply repeals the provisions of the Seventeenth Amendment and returns the senatorial selection process to the original constitutional prescription.
Section Two. The Senate of the United States shall be composed of two Senators from each State, selected by the legislature of each State. Each Senator shall serve a six-year term and may be re-appointed. Each Senator shall have one vote.
The language of this section echoes that of the original selection provisions in Article 1, Section 3. The only additional clause is a specific grant of power to the state legislatures of reappointment of a senator. This is designed to be coupled with the removal clause of the next section to make clear that a U.S. senator would serve at the pleasure of the state legislature that sent her. A senator's primary job in the U.S. Senate would be to represent the interests of her State, as a State.
Section Three. Senators are subject to removal by the State Legislature. Removal of a Senator requires a majority of each House of the State Legislature.
The provisions of this section are an addition to the language of the original constitutional scheme. Under this section, a state legislature would be able to remove a senator that it was dissatisfied with or just wanted to replace before the end of the senator's six-year term. As long as the majority of each state legislative chamber voted to recall the senator, the senator's removal would be final and not subject to repeal.
Section Four. Congress is precluded from enacting any legislation affecting the senatorial selection process. Each State Legislature shall enact rules and procedures, consistent with this section, related to the selection and removal of Senators.
In 1866 Congress responded to problems of state legislature bribery and deadlock by passing a law regulating the manner in which states selected their senators. The legislation required that each chamber of the state legislature meet separately and select a senator in open vote. If the houses of the legislature did not select the same nominee, the chambers were then to meet in joint session every day until a senator was selected by majority vote.
Ironically, the congressional act exasperated the very problems it was enacted to solve. Perhaps the requirement for a joint session frustrated the constitutional principle of checks and balances. Or perhaps requiring a majority vote rather than a plurality instantiated an impossible standard. Whatever the cause, the cases of deadlocked legislatures, accusations of bribery, and incidents of lost state representation in the Senate increased markedly after 1866. Congressional meddling toppled the system of senatorial selection that worked relatively well before the Civil War.
This section is included in this proposed amendment to avoid the temptation in Congress to fix every problem in American society through the passage of a new law. Even if state legislatures are deadlocked or beset with bribery and corruption, it is one of the things that should be left to the state legislatures to work out themselves. After all, it is the State itself that would suffer from a loss of senatorial representation, and it would be state legislators who broke bribery laws or committed corruption who would face jail time if proven guilty in a court of law. Let the political and judicial processes apply the pressure needed to move past these problems.
Section Five. This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
This last section is in place to facilitate transition in the case that this amendment is ratified as part of the Constitution.
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