Here at the Tennessee Tenth Amendment Center, we have received questions from a number of people about the SB0471 and its companion bill HB0415, sponsored by Sen. Frank Niceley and Rep. Harry Brooks respectively. Because of the confusion, we at TN-TAC thought it prudent to clarify why we have endorsed the bill.
In a nutshell, the bill would allow the parties represented in the state legislature to choose the nominees for U.S. Senate that would then be placed on the ballot for the general election in November.
Additionally, the bill does provide options for third parties to put candidates on the ballot, stating “A minor party may nominate persons for the United States Senate in any manner authorized pursuant to § 2-13-203(a)(2).”
[Read the full text here: http://www.capitol.tn.gov/Bills/108/Bill/SB0471.pdf]
Back to the Beginning
So why is it important for the state legislature to be able to control U.S. Senators? To start, let’s go back to the method the founding fathers gave us for selecting U.S. Senators. Article I, Section 3 of the U.S. Constitution states:
“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.”
Many people who have never read or hastily skimmed over this section of the U.S. Constitution are often perplexed as to why the founders chose to do this. As you’ll see, the reason they did so has EVERYTHING to do with the Tenth Amendment.
The Federalist Papers were written by the framers and proponents of the Constitution during the ratification process to explain the new Constitution to the people. So, let’s turn there for some clarification.
The Federalist #62 explains that by having the state legislatures appoint U.S. Senators it would serve as a check on federal power by the state governments.
“It is recommended by the double advantage of favoring a select appointment, and of giving to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.” [emphasis added]
“Another advantage accruing from this ingredient in the constitution of the Senate is, the additional impediment it must prove against improper acts of legislation. No law or resolution can now be passed without the concurrence, first, of a majority of the people, and then, of a majority of the States.” [emphasis added]
This clearly provides an additional check on federal usurpation of powers reserved to the state governments under the Constitution. Because all laws have to pass through a body comprised of agents of the various state governments, it makes it much harder for the federal government to usurp the states’ rightful power.
Because the Senate represented the state governments, each state’s senators were charged with jealously guarding their state government’s constitutionally retained powers against unconstitutional encroachment by the federal government.
So imagine if you will, that when Obama pushed his Obamacare legislation through Congress that we had a Senate comprised of senators appointed by their respective state legislatures. Most of the states don’t want to implement Obamacare, and don’t like having their constitutionally retained powers over health care usurped. The senators, being beholden to their state legislatures, would have stopped the nonsense and protected the powers rightfully retained under the Constitution by the states. This is exactly why the founders created the senate as they did.
You see, the founders knew that the federal government could never be trusted to keep its powers in check. This is why the Senate was created as a buffer to give the states a direct veto over a possible federal behemoth.
This is protection of the Tenth Amendment at its finest – preventing the passage of unconstitutional legislation that usurps state powers instead of trying to deal with it after the fact.
The Passage of the 17th Amendment
Progressives like William Jennings Bryan began calling for reform of the constitutional method for selecting U.S. Senators as early as the 1800s. In 1913, the 17th Amendment was ratified which provided for popular election of all senators, removing the state government from the equation.
“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.” – Amendment 17
This left the state governments with no ambassadors or ability to directly check federal power. Without the Senate to act as the “embassy” of the states, only foreign governments still have embassies in DC to represent their interests.
Not surprisingly, since the demise of this practice after the ratification of the 17th Amendment, the federal behemoth has grown exponentially with no direct check on federal power by the state governments.
Fast Forward to Today
This bill is an attempt to restore, at least in Tennessee, the selection of U.S. senators to a method as close to the original Constitution as can be done legally without the repeal of the 17th Amendment.Each political party represented in the state legislature, as well as minor parties, would nominate a candidate to represent their party on the ballot. Then the people of the state would choose from among the nominated candidates pursuant to the 17th Amendment. This is perfectly legal under the 17th Amendment, as long as the final selection is made by popular vote.
As Sen. Niceley states, “Prior to 1913, the State legislatures chose our U.S. Senators, and when the 17th Amendment gave us direct election, much of the oversight that our State legislatures and State governments had over Congress and over the federal government disappeared overnight. This legislation is designed to restore some of that oversight.”
The bill will get Tennessee back as close as legally possible to the original Constitution before the ratification of the 17th Amendment.
Judge Andrew Napolitano argues that the 17th Amendment itself is unconstitutional.
An added benefit of this legislation would be drastically loosening the control of a senator’s “corporate sponsors” over his or her votes. Because the senators would only hold their position at the pleasure of the legislature, if they start to step out of line and vote to allow the federal government to usurp state powers, the state legislature can retaliate and refuse to nominate them again.
This would make the huge warchests of incumbents who behave badly much less advantageous. As Sen. Niceley
“What we have right now are auctions, not elections for Senate,” Sen. Niceley said. “Spend the most money, get nominated and elected, and if you can’t, you won’t be considered a serious candidate. With this legislation, we have the ability for the Legislature to restore its oversight role and for lesser-known prospects to have a chance to be nominated as well.”
Rep. Ryan Haynes is threatening to kill this bill in the House State Government Committee.
Help protect the 10th Amendment by helping us get bad bills stopped BEFORE they are passed in Washington DC. Contact Rep. Haynes and the members of the House State Government today and tell them to support SB0471/HB0415.
House State Government Committee:
Rep. Ryan Haynes, Chair
Rep. Sheila Butt, Vice-Chair
Rep. Joshua Evans
Rep. Darren Jernigan
Rep. Debra Moody
Rep. Jason Powell
Rep. Bob Ramsey
Rep. Bill Sanderson
Rep. Johnny Shaw
Rep. Billy Spivey
Rep. Curry Todd
Rep. Eric Watson
Rep. Kent Williams
Full Senate: Use the “Find My Legislator” tool here – http://www.capitol.tn.gov/legislators/