The 17th Amendment to the U.S. Constitution:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
The power to vote is perhaps one of the most cherished rights and responsibilities of the American people. Originally, the Constitution did not and, in fact, still does not provide citizens with a formal right to vote for all offices such as the president, but it did allow for the direct election of members of the House of Representatives and since the ratification of the 17th Amendment it has enshrined the right to vote directly for members of the U.S. Senate. This right to vote carries with it, in theory, a commitment to political equality perhaps best expressed by Justice William Douglas’ majority opinion in Gray v. Sanders wherein he stated, “The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing—one person, one vote.”
Perhaps it is because I take for granted popular support of our democratic principles that I was a more than a little surprised when House Rep. Louie Gohmert (R-TX) came out in favor of repealing the 17th Amendment as a response to the passage of health care reform. According to the Washington Independent, Gohmert believes taking away the rights of the people to directly elect their senators would “”restore the balance” between the federal government and the states by giving the right to appoint senators back to state legislatures.” To bring about this change, Gohmert is suggesting that a new Constitutional Convention be called for the sake of adding a single Amendment to repeal our right to vote.
My initial response was to simply scoff at this idea and move on with my life, but I decided to take it seriously enough to look into why he would advocate such a move.
To that end, I did some basic searches on Google which brought up various websites which shared Gohmert’s point of view:
Specific reasons for repealing the 17th Amendment seem to include:
- “The 17th did not stop corruption or election fraud”—I can’t say I disagree with this, but I do not think repealing it will help the problem either because there was plenty of corruption pre-reform (I address why below). In fact, I would dare say corruption and fraud are more likely when the choice is not with the people. One only has to look at former Illinois Governor Rod Blagojevich to see what happens when state officials get to select senators instead of the people.
- “The 17th did not lessen the power of political parties”—While I can’t disagree that partisanship is alive and well in the Senate, I, once again, fail to see how repealing the 17th Amendment will resolve this issue. Party money would just flow to state legislatures in an attempt to sway their vote toward the party’s chosen one. Plus Professor Scott R. Meinke produced a study in 2008 on the effects of direct elections on the Senate. In that study, he found senators were freed from the need to curry the favor of local party bosses and thought leaders and that to some degree senators had to moderate their beliefs to match the overall predilections of the state. In general, he said senators use the outcome of national elections to gauge the partisan nature of their state
- “Should a legislature prove unwilling or unable to fill a vacant Senate seat, this problem is one for the state itself to resolve by a process it deems most appropriate”—I would argue that going up to four years without a senator to represent your state is a critical problem (see below). Forty-five deadlocks occurred in twenty states between 1891 and 1905, resulting in numerous delays in seating senators
- “The original U.S. Constitution gave state governments a strong voice in the national government by allowing them to select U.S. Senators, and thus created a political (not judicial) venue for the competition between state government interests and national government interests”—The Constitution also gives states the rights to determine how the electors are chosen for presidential elections. For example, not only did most states not allow for the popular election of electors until the 1830s but all states did not do so until 1860 when South Carolina finally joined the club. Should we also go back to having the state legislators select our electors for president? It should also be pointed out that state legislators had limited control over senators after they were electe. In fact, since the state legislators tended to be the ones whose votes were “bought” than one might say they were more likely to be beholden to the senators. I also find that this argument sounds like an attack on the role of the Supreme Court as the final arbiter of what is and what is not constitutional i.e. an attempt to overturn the right of judicial review set forth in Marbury v. Madison in 1803. Somehow I doubt that repealing the 17th Amendment would reverse this decision which occured well over a hundred years before they 17th Amendment was passed. Finally, I fail to see how having senators elected by the people of the state kills states rights unless you mean the rights of the state legislature which would mean that you hold the rights of the state government over the rights of the people? Maybe the Constitution did give “state governments a strong voice in the national government” but the 17th Amendment gives people that voice instead. Let us not forget that the people are the state.
- “It violates the “one person, one vote” rule by giving people three votes in Congress i.e. one House member and two Senate members.”—”One person, one vote” does not pertain to the number of representatives in Congress, it pertains to each person being able to cast their single individual ballot for all electable officials within their local, state, and federal governments. Should we also take away peoples’ right to vote for representatives in both houses of the state legislature since by this thinking this too would violate “one person, one vote”?
To have a proper discussion on the 17th Amendment we need to review how this came about. As you may know, the Constitution originally left the selection of each state’s two U.S. Senators up to the state legislatures. This process was fraught with corruption and blatant bribes. Under the old system, a candidate only needed to win just over half his party’s caucus votes, or sometimes even just a plurality, to be elected senator. Upon winning the caucus’ vote all members of the party caucus were bound to vote for him during the finally tally with the full legislature.
For instance, if Florida’s legislature had sixty members and forty of them were Republican than all a Republican candidate would need to do to win the senate seat is obtain twenty-one votes from his caucus of forty, possibly less if more than two candidates were running since only a plurality was normally needed to win. In other words, a Senate hopeful would only need to bribe twenty-one legislators to obtain the seat. If even that many since pressure from party leaders or bosses could be sufficient to sway the needed votes—thus allowing for the possibility that the bribing of a handful of legislators could buy one a Senate seat.
Historical evidence has shown that corruption abounded under this system. Over a dozen bribery cases were brought before the Senate between the 1880s and the passage of the 17th Amendment. This merely accounts for those where charges were brought, many more merely went unchallenged.
Furthermore, the legislature would frequently deadlock over a decision and not choose a Senator at all. The worst case was probably Delaware which only had one Senator between 1899 and 1903. Delaware was prevented from having its rightful second senator because one wealthy politician, J. Edward Addicks, managed to spread enough money around the state to prevent any vote from occurring if it was not going to give him the seat. To which the editors of the Nation wrote in 1902, “To hold people incapable of electing Senators is an insidious reflection upon the dignity of a nation whose political creed is the sovereignty of the people.”
In this manner, the Senate gained a reputation as a place where money determined the outcome of elections and legislators. The Senate was seen as an “an enduring and unchangeable power, always grasping for new privileges, not directly responsible to the electors, concerned chiefly for its prerogatives and protection of special interests” (sound familiar?). This persistent corruption led to calls for direct election of members by the people of their own states. Supporters thought this would be “the most effective means of taking from organized wealth the control of the Senate, and indeed our national politics.” To their dismay direct elections seemed to have more to do with effective campaigning than the character and the ideas of the candidate. And with campaigning came campaign contributions.
For senators, as with all politicians, their overriding concern was (and still is) reelection and the campaign funds they needed to sway voters. Costs mounted election after election. In 1919, Truman H. Newberry, a Republican from Michigan was found guilty of spending hundreds of thousands of dollars on his campaign—far more than the $3,750 allowed under Michigan law. The editors of The Boston Herald took note of what the Senate had failed to do: “We have no provision for financing our political campaigns, at a time when the direct primary–the most effective device ever conceived by the mind of man for giving wealth an advantage over poverty, had doubled the inevitable cost and when woman suffrage has doubled it again.”
Today it has only gotten worse: As with the 2008 presidential race, the 2008 House and Senate races experienced an upward spiral in campaign contributions. The data shows the average winner of a House seat raising $1.3 million and the average winner of a Senate seat raising $9.6 million.
The high cost of House races makes one wonder how repealing the 17th Amendment will prevent lobbyists, special interests, and campaign donors from influencing them. If they can’t give directly to senators surely they will just divert that money to state legislators and, if monied corruption is the issue, than what do we do with the House whose own campaign expenditures are nothing to sneeze at? Gohmert himself, raised $888,649 in his 2008 campaign. Perhaps we should also draft an amendment taking away the people’s right to vote for members of the House since they seem to be just as bought and paid for as the Senate?
Also, I would imagine senators would simply campaign on behalf of the state legislators who voted for them in the past, so instead of campaigning every six years he or she might campaign every year or so on behalf of the state legislators.
I can see where the relentless demands of the “permanent campaign” needed to raise these sums has led Gohmert and others to advocate a return to the original manner of electing individual to the upper house through state legislators. But I would argue that the problem with direct elections is not the basic democratic idea but rather the failure of the nation’s political leadership to put in place safeguards against campaign contributions and special interests manipulating elections. Public financing of elections with a firm cap on outside contributions would be one way to restore a semblance of competitive balance for those seeking high national office and restore the peoples’ confidence in government.
A Gallup Poll in 1999 showed eighty-six percent of respondents felt that, at least on some level, politicians alter their behavior for money. And far be it from me to be cynical but I would have to assume that number has only risen as campaign contributions have increased exponentially in the last decade.
It is a true crisis when the vast majority of Americans do not believe that their government is for the people but instead believes it is for the monied interests. Most believe money is the only way to get results from Congress. This leads to unassailable doubts about the integrity of our basic democratic principles.
That is why, rather than take away fundamental rights of the people, we should instead help bring about legislative change by passing the Fair Elections Now Act, this voluntary, opt-in system would create a hybrid of public funding and small dollar contributions.
“Under this legislation, congressional candidates who raise a threshold number of small-dollar donations would qualify for a chunk of funding—several hundred thousand dollars for House, millions for many Senate races. If they accept this funding, they can’t raise big-dollar donations. But they can raise contributions up to $100, which would be matched four to one by a central fund. Reduced fees for TV airtime are also an element of this bill, creating an incentive for politicians to opt into this system and run people-powered campaigns.”
“Participating candidates could set up leadership political action committees but would be limited to a $100 contribution limit per individual per year.”
“The cost of Fair Elections for Senate races would be borne by a small fee on large government contractors and for House races would come from ten percent of revenues generated through the auction of unused broadcast spectrum:”
* “The largest recipients of federal government contracts would pay a small percentage of the contract into the Fair Elections Fund.”
* “If the system proves popular like similar laws at the state level, the new system could cost between $700 and $850 million per year.”
I urge you to sign the Fair Elections Now Act Petition