Revisiting the 17th Amendment

This blog has been a proponent of repealing the 17th Amendment. Mostly this was due to a concern that the balance of power between the States and the Federal Government had shifted too far. But this proposal is more about the ends that we would hope to promote through the means of the amendment's repeal. That is, some mechanism needs to be devised and implemented to give the States direct representation and a systematic say in crafting federal legislation. This was the idea of the Founders' original mode of senatorial selection, and it is this sort of structural rebalancing that provides the only hope of restoring the concept of enumerated, delegated powers at the federal level. A structural fix would provide the flexibility of needed to enact federal responses to problems deemed truly federal, while giving the States a direct responsibility in this formulation.

However, Jon Roland brings up a great point in his article:

Proponents for such repeal argue for the original intent of the election of U.S. senators by state legislatures that it would better serve to protect the reserved powers of the states from encroachment by the central government, and that state legislators would bring more expertise to the selection process.

Unfortunately, that never worked as it was designed. What actually happened was that special interests, such as banking, railroads, oil, and steel, found that they could buy tU.S. senators for a lot less through state legislators than through direct popular election.

Most state legislatures had no strong desire to protect their citizens from the central government. They were more interested in getting federal money. Accepting large donations in exchange for voting for the U.S. Senate candidate of choice of the donor was a matter of almost all upside and little downside.

There is a reason why by 1912 so many state legislatures were holding popular referenda to nominate U.S. senators and then just rubber-stamping the popular choice.

So point taken.

This blog's specific proposal goes beyond just repealing the 17th Amendment. Section 3 empowers State Legislatures to remove its senator, ensuring that a State's senators have its government's desires and interests in mind. Section 4 is designed to address the aspects of the original design and congressional "fix" that led to the deadlock and corruption that Progressives were fighting when they proposed the 17th Amendment.

Jon Roland's specific proposal is to change the nominating process for senators to sortition. His proposed amendment states:

Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-four, who then elect a person from each precinct, from among whom are randomly selected twenty-four persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be five, who shall be the nominees on the ballot for the final election by general voters, except that general voters may write-in other persons. Voters may vote for more than one nominee, using the method of approval voting. There must also be an alternative of "none of the above". The nominee receiving the most votes shall be declared elected, unless "none of the above" wins, in which case the position shall remain vacant.

The concern with this proposal is the quality of candidate a random selection process would produce. Taking the average Joe off the street and sticking him in the Senate would not fill me with much inspiration and hope for the Senate. Nevertheless, one key element of the Constitutionalism article that is absolutely required, assuming that a State Legislature should not choose a State's senator because of the increased chance of corruption, is the use of a different type of election procedure,

"Voters may vote for more than one nominee, using the method of approval voting."

The nominating process in America is badly broken, and this might be a good place to start thinking about how to change it. Perhaps if the random selection could be from the State Legislature itself or from among the leading people of each state's community (business, academia, medical, legal, religious, etc) and the selection from that seeded list could be via sortition, we could get to a process of senatorial selection that could bring the voice of the States back into the structure of the federal government while still minimizing the chance of corruption and deadlock.

Either way, it's heartening to see the interest in exploring this topic spread. At least people are thinking about it.