How the 17th Amendment Ruined the Senate

With the Graham-Cassidy healthcare bill to repeal Obamacare flaming out, not even getting a vote, one might wonder whether it was a lousy bill or if something else were amiss. As the bill seemed like pretty decent legislation, its failure to get a vote may be due to what the U.S. Senate has become. Today’s Senate is populated with careerists: professional politicians. Such politicians can be more attuned to the interests of their donors than to those of their constituents.

One of the healthiest things to have come out of Congress in decades was Newt Gingrich’s Contract with America back in 1994. The Contract promised several huge changes, like welfare reform, and the new Republican Congress, the first in forty years, actually delivered on some of those big promises.

But one of the big disappointments of the Contract was the failure to get term limits in its Citizen Legislature Act; the careerists in the House defeated it 227-204. That failure to get term limits left the Senate with two members, Collins and McCain, whose declared opposition to Graham-Cassidy sank it. Collins and McCain would have been long gone if we had gotten the Contract’s term limits.

If we’re ever to get term limits for Congress, the Constitution must be amended. Because the swampy careerists in Congress are never going to initiate such an amendment themselves, we’ll probably need to have an Article V constitutional convention. Good luck on that.

On Sep. 26, The Blaze reported that Rep. Louie Gohmert (R-TX) had appeared on Fox News addressing Sen. McCain’s cancer and advising this: “I think Arizona could help him — and us. Recall him, let him fight successfully this terrible cancer, and let’s get someone in here who will keep the word he gave last year.”

It might be healthy for the state of union if wayward members of Congress could be ousted with a recall election, but unfortunately recall elections aren’t available for Congress. In “Can U.S. Senators Be Recalled?” at The Daily Signal, Benjamin Shelton treats the issue of recall elections vis-à-vis the Congress; it’s well worth reading, and short.

If voters would like to be able to hold recall elections and oust their U.S. senators for breaking their promises rather than waiting for the next regular election, then they’re going to need to mount an Article V constitutional convention, because Congress is unlikely to initiate such an amendment. Good luck.

If you don’t like that your U.S. senators are breaking their promises to you, then you might start blaming yourself, because with the 17th Amendment in 1913 we started electing U.S. senators by popular vote. You, dear voter, have been sending the same people back to Congress year after year, to the point that we’ve actually had a senator or two whose age was in excess of 100. It’s as though the Senate were an episode of Survivor.

If you think that the 17th Amendment was a mistake that should be repealed, then you’re probably going to need to convene the states, as provided for by Article V, because there’s little chance that sitting congressmen are going to initiate an amendment to repeal the 17th. Good luck.

The original character of the Senate and the intent of the Founders was laid out in The Federalist in Nos. 62, 63, 64,65, 66, 75, and 76. In Federalist No. 62 we read:

In this spirit it may be remarked, that the equal vote allowed to each State is at once a constitutional recognition of the portion of sovereignty remaining in the individual States, and an instrument for preserving that residuary sovereignty. […]

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.

So the House of Representatives is the People’s house, and the Senate is the house of “the several States.” But that was before the passage of the 17th Amendment, which changed the character of the Senate. Now, U.S. senators answer to the People, not their state legislatures. On Obamacare repeal, Sen. McCain is at odds with his State and its residents. Arizona has experienced Obamacare premium hikes of more than 100 percent, but Sen. McCain is more interested in “process,” “regular order,” and some ethereal bipartisanship (with the Hun, no less) than he is in getting a little relief to his constituents in Arizona.

Democrats often bemoan the money in politics. If U.S. senators were elected by state legislatures, wouldn’t there much less of a need for campaign money? The 17th Amendment was a mistake and should be repealed because it changed the character of the Senate. Senators are now “freelancers,” and don’t need to worry about the wrath of the voters until just before the next election. The U.S. Senate has become a club, and it’s a club that isn’t very responsive to the folks. Their job in life is first to raise money for their reelection campaigns, and second to make laws for the rest of us to live by, laws that don’t apply to U.S. senators.

The repeal of the 17th might also contain the right of state legislatures to recall their senators if they aren’t voting in the interests of their state. With such a recall mechanism, Sens. Collins and McCain could be relieved of their duties for their opposition to Graham-Cassidy by their state legislatures. In recent years, several states have been underrepresented because their senator had suffered an aneurysm, stroke, or brain cancer. But there’s no mechanism to replace them, so the state suffers. The 25th Amendment (Section 4) allows us to relieve of his duties a president who is “unable to discharge the powers and duties of his office,” but we have no such avenue for incapacitated senators. Recall by state legislatures would also be useful for senators who are just too old, like Strom Thurmond.

If you’d like your state legislature to be able to ensure that you’re fully represented in the Senate by being able to recall and replace ailing senators, then you’ll most likely need to convene the states by way of Article V because sitting senators will likely never approve of such a thing. Good Luck.

Hillary Clinton believes we should abolish the Electoral College and do for the presidency what we did for the Senate a century ago. That is, elect the president by popular vote, i.e. the People. With the Electoral College, the States elect POTUS; the People elect only Electoral College electors. But isn’t POTUS more the leader of the States than the leader of the People?

If we were to abolish the Electoral College, why not go “unicameral” like Nebraska and abolish the Senate as well? Going unicameral, as in having only the House of Representatives, would diminish the States. But if Democrats had enough numbers in Congress, going unicameral might not require an Article V convention, as the Dems don’t seem to have much respect for the States. But the States would then kill it. You see, the Senate is supposed to represent the States, and the States still have a bit of “residuary sovereignty,” (see Federalist No. 62).

There needs to be a great deal more turnover and churn in the Senate. For the last 104 years, since the ratification of the 17th Amendment, the low rate of turnover has been largely due to voters; they send the same people back to D.C. election after election. They do this because their senators “bring home the bacon,” and give them “free stuff.” But the Senate has become dysfunctional, swampy, and corrupt, (see Bob Menendez). Because the amendment avenue for fixing the Senate is so daunting, it is left to you, dear voter, to change that body. And the way to do that is to throw the careerist bums out in the caucuses and primaries.

In 1787, the Founders gave us a stable, sound, and solid system, but the tinkering and tweaks since haven’t always improved that system. By not even proceeding to debate on Graham-Cassidy, it may be time to retire this description of the U.S. Senate: “The world’s greatest deliberative body.”

Tags: 17th Amendment