Saturday, June 8, 2013

100th Anniversary of the 17th Amendment

Professor Michael Dorf has complained about who should appoint the replacement of Senator Frank Lautenberg, who passed away at the age of 89 this week. The concern is that Lautenberg was a Democrat, whose vote is desperately needed by President Obama and Harry Reid, while the governor of New Jersey is a Republican, in name only.

After much reflection, I personally think that the solution to the trivial concern about the party affiliation of the appointed is to get back to the way we were supposed to have Congress set up, according to the founding fathers. The House of Representatives was designed to be the "Peoples" house with the members elected by popular vote of the people based on the population of the state. [Article 1, Section 2. U.S. Constitution].

The Senate was supposed to be composed of two members from each state and was supposed to be the "state's" representative. The purported intent was that these representatives would be more focused on the  national issues instead of the local "popular" issues. As such the Senators were to be elected by the state legislatures.

Article 1, Section. 3.
 The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof for six Years; and each Senator shall have one Vote.
 Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

Article 1 Section 3 clearly defines how a vacancy in the Senate is filled.

The founding fathers believed that the upper house (the Senate) should be a stable body of people would would have the disposition to look at issues nationally instead of parochially, protected from the whims of the people by being elected the state legislatures and having six year offices instead of only two years.

In its infinite wisdom, Congress proposed and passed the 17th Amendment on May 13, 1912 and it was ratified on April 8, 1913 designating the people of the state as the electors of the Senators. We have worked with this experiment in adjusting the original constitution for 100 years and it time to acknowledge what it has done. First it has caused the Senate to become much more of a body which reacts to the winds of the special interest groups to help insure that they can be elected "by the people." Second, the 17th Amendment has dramatically increased the cost of election to the Senate {when elected by the state legislatures there is no separate election expense for Senators), and made it a much less deliberative body, relying more and more on outside lobbyist to provide the data, speaking points and opinion polls to replace the deliberative process to determine what is best for the country.  The constant need to be reelected by the people keeps the election cycle going forever. When appointed by the legislature this distraction, and opportunity for graft, is eliminated. Third, it has made the Senate subject to the tyranny of the minority ... the minority of "the people" who actually go out and vote.

Both Article 1, Section 3 and the 17th Amendment, however, leave the state Executive with the authority to appoint the interim U.S. Senator on the vacancy of the state's seat in the Senate. This is the one area in which the 17th Amendment got it right. Leaving it to a state wide elected official to appoint the state wide interim U.S. Senator, regardless of which party is in control, is the appropriate course to take.

The "popular vote" of the electorate for U.S. Senators is just that ... a popularity contest. We need to return the Senate to a deliberative body, not one that is dependent on the members popularity with their local constituency. The Senate was supposed to be a counter-balance to the House of Representatives which was perceived to think on the local level. The Senate was supposed to think on the National level ... what is best for the country, not what is best for the coal producer in my home district but rather the energy consumers of the entire country, the farmer in my county versus the economy and health of the nation, etc.

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