The Senate: Restore It…or Revamp It?

A Review of The Liberty Amendments (Part 2): Restoring the Senate

To the People of America:

Us_senate_sealI pretty much agree with AN AMENDMENT TO RESTORE THE SENATE in chapter 3 of Mark Levin’s The Liberty Amendments, which would repeal the 17th Amendment to the U.S. Constitution which changed the selection of Senators from selection by the state legislatures to direct popular election.  Levin lays out the case well for a return to the Founders’ original intent in creating the Senate, with all that it means for federalism.

To be fully apprised of what such a repeal would mean, however, I do commend an article addressing important issues to be considered by advocates of repealing the 17 Amendment to the attention of every reader by Rob Natelson, who is a proponent of an amendments convention: “Repeal the 17th: Problems to Address.”  Indeed, Professor Natelson notes the irony that some of the biggest supporters of repealing the 17th Amendment are among those most opposed to an amendments convention of the states, even though that is the most likely venue in which such an amendment could pass, since the Senate is unlikely to pass such a resolution calling for repeal of the rules that got them elected.  Natelson points out three major problems that plagued the former system:

“1. Smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). After 1850, cases multiplied in which candidates purchased Senate seats from state lawmakers. Some outrageous national scandals helped provoke the move to direct election.

“2. State legislatures often couldn’t agree on a Senate candidate. For example, one legislative chamber might favor one candidate while the other chamber favored another. The result was deadlock. Legislatures sometimes balloted for months on end while their state remained under-represented in Congress. A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905—a period of only 14 years—there were 45 deadlocked senatorial elections in 20 different states!

“Deadlock often was broken by “stampeding”—last-minute election of a dark horse whom no one previously had thought to be of senatorial timber. In other words, a procedure that originally had produced Senators like Daniel Webster and Thomas Hart Benton eventually produced a bunch of non-entities.

“3. Because people “voted” for a Senate candidate by voting for state legislative candidates, federal and state issues became bundled, with state issues often entirely submerged. Think of the 1858 Illinois legislative races. Does anyone remember any of the issues in that campaign other than the issues that divided U.S. Senate candidates Lincoln and Douglas?

“Put another way, legislative election of Senators began to hurt federalism because state elections lost their distinctive character among national issues.”

I don’t believe any of these problems are reasons not to repeal the 17th Amendment, however. The second point is addressed in Levin’s proposed amendment, which grants the governor of a state the authority to appoint an a Senator when vacancies occur for more than 90 days.  This still allows the state legislatures to choose the Senators but also gives them a deadline and the knowledge that the governor will be authorized to make the decision for them should the legislature fail to do so.  I also love the provision that “A Senator may be removed from office by a two-thirds vote of the state legislature.”  That should keep the Senators mindful of who they are accountable to, since the people at large lack this ability to remove Senators by recall in most states.

The United States Senate

The United States Senate

So, in summary, I support this amendment in principle and as written.  But if you will indulge me in suggesting this alternative idea:

I have thought before that perhaps our state governors (or perhaps lieutenant governors) could double as U.S. Senators. They would represent the interests of their states, wouldn’t they (theoretically)? If Senators are supposed to be “ambassadors of the states” who better to represent the states than the men and women chosen to lead the various states?  And, as you can see, since governors are in every state elected by direct popular election, this would keep the selection of the Governor-Senators under the same method by which they are elected now, while ensuring that they also remain firmly attached to the interests of their states, rather than becoming an isolated class in Washington, D.C.,  unaccountable to the state government apparatus back home.  The state’s other Senator could be selected by the legislature, as laid out originally in Article 1 of the U.S. Constitution, before the 17th Amendment was adopted.  This would afford something of a compromise between the current method of direct selection of Senators and the original methods of selection by the legislatures, while in both cases restoring the attachment to the state governments that Senators were intended to possess.

And the Governor/Senators would not even have to meet in Washington, D.C. in this day and age of technology, at least not too often. The high speed travel that we have today makes it more practical for state leaders to do this, and they could be on video conference calls and vote electronically, etc.

I realize this proposal could be problematic when it comes to governors’ terms of office expiring before their senatorial terms, or vice versa.  Perhaps these Governor-Senator’s would not have six-year terms in this case, unless their terms of office corresponded to a six-year term, which I don’t believe any currently do.

If one does not like the two different modes of electing the states’ two Senators (though I think it is a rather Solomonic compromise between the method of selection and the current method), I’m thinking that just one Senator (be they the kind we have now or a Governor-Senator) is enough to represent the one state. I believe we initially got two U.S. senators for each state as a concession to the small states at the 1787 Constitutional Convention, but I don’t think it’s necessary now. And taking one senator from each state would not deprive any state of its “equal suffrage in the Senate”).

This would reduce the Senate by half (which would be a reduction in government itself), but maybe then we could take those other 50 fewer Senators and have them constitute a House of Repeal