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Roll Call

Senate Vacancies Raise Questions of Framers’ Intentions

Over the past nine months, much ink has been spilled on these pages and elsewhere over the process of filling vacant seats in the Senate. As columnist Norman Ornstein documented in Roll Call on Sept. 23, during this period there have been six seats vacated by death, retirement, election to higher office and appointment to the Cabinet.

Much of the commentary has focused on how the vacancies are filled and how fast the replacement occurs. Those who desire a quick and inexpensive process tend to favor gubernatorial appointment of Senators, while those who insist on a more democratic and deliberate route prefer special elections. Not discussed is any acknowledgement that these two alternatives are (in the parlance of our times) “a false choice” posed by the 17th Amendment. In fact there is a third, more elegant option conceived by the framers of the U.S. Constitution that could be considered.

Prior to 1913, Members of the Senate were chosen by state legislatures to be the agents of those governments in Washington, D.C., much like ambassadors today at the United Nations. The framers’ legislative design was subtle, but ingenious: While a Member of the House would represent the interests of the people as citizens, a Senator would represent the very different interests of the people’s sovereign state governments. This structure embodied the original meaning of the term “separation of powers.” The legislature would domicile two distinct powers (the people and the states) to compete bill by bill for the direction and scope of the federal government.

Representatives to the House, with only two short years to prove their worth to constituents, would demand governmental activity at any cost. Envoys to the Senate, the voices of state legislatures primarily interested in keeping political power closest to where the people live, would limit the federal government’s growth. The framers gave the Senate functions different from that of the House, such as the confirmation of judges and Cabinet appointees, presuming that the emissaries of the states would approve only of those nominees possessing a view of government not precluding the states from first providing for their own citizens’ needs. In this way, the Senate was guarding the constitutional henhouse.

In 1913, the 17th Amendment and the popular elections of Senators turned the henhouse over to the hound dog. While current representatives to the House and Senate have different (though overlapping) geographic constituencies, they have extraordinarily similar interests: the properly intemperate and unfiltered will of the people, and the special interest groups that fuel campaigns. There is no longer the competition of disparate interests the framers believed was required to keep the federal government responsive, yet moderate in tone and scope.

The 17th Amendment was proposed and ratified primarily on the strength of these two arguments: 1. The selection of Senators by legislatures was irredeemably corrupt. Some Senators were accused of “buying” their seats from state legislatures, either through cash payments or through loyal service to party machines. 2. “The will of the people” is best expressed through popular elections.

Consider these arguments in turn.

First, if the primary purpose of the 17th was to eradicate corruption from Senatorial selection, it failed brilliantly at doing so. Far too many contemporary examples exist to suggest otherwise. Corruption will always be a part of politics and must be dealt with aggressively, but altering the foundational structure of the Constitution in order to wave a hand at corruption was profoundly misguided.

Second, the purpose of the Constitution is to establish a government of the people, by the people and for the people, but the framers did not intend to make the federal government an instrument of mob rule. The long history of failed civilizations taught them that democracy has practical limits, and those limits include a majority’s tendency to disregard minority views and financial bankruptcy.

The Senate was designed to serve the people, but not as a democratic body. Some have suggested that this was because the framers — as elitists — distrusted the people. There is little evidence to back this up. The framers each came from states where almost every feature of the state government — from the governor to the local magistrate — was democratically determined, and the framers made the will of the people well-represented in the House. It certainly was not the case that after fighting a war of independence from titled privilege, they wanted to secure a place for an aristocracy they all despised, as is suggested by others. The framers made the Senate a non-democratic body because they believed that when democracy’s limits are reached, citizens lose their liberty and governments go broke.

So what are the implications of the 17th on the 2009 vacancies? Consider Massachusetts. Without the 17th Amendment, the democratically elected Massachusetts Legislature could have met on the day following Sen. Edward Kennedy’s (D) death and selected his replacement at very little cost to the taxpayers of Massachusetts. The new (Democratic) Senator would be charged with representing the interests of the state government, including that government’s inclinations toward health insurance reform. In the course of the health care debate in the Senate, if the state Legislature came to believe that the financial burdens of national reform would affect the people of Massachusetts disproportionately — and thus unduly diminish the resources of Massachusetts — then the new Senator would be advised to advocate for a more just distribution of those costs. The Senator from Massachusetts would almost certainly vote against any provision (in any bill) designating unfunded mandates to the states. If the state of Massachusetts determined that the state government could provide better, more efficient managed health care than the federal government to the benefit of its citizens, it would have an immediate, significant voice in the Senate with which to say so. Without the 17th, the people of Massachusetts win.

By repealing the 17th, the nation would restore a meaningful part of the framers’ original design for federalism. The responsibility for the quick and just selection of Senators becomes that of a democratic body in each state, providing a meaningful check against hot-headed, confrontational government. It worked well for more than 120 years. What is the harm in reconsidering the framers’ original plan?

John W. Truslow III is director of the Campaign to Restore Federalism.

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