Democracy Without Elections

It's time for the courts to recognize the plain meaning of the 17th Amendment

Steve Chapman | August 13, 2009

The British Parliament consists of the House of Commons, which is elected by the people, and the House of Lords, which is not. How different that is from our Congress. We have the House of Representatives, which is elected by the people, and the Senate, which is...well, mostly elected by the people.

The unfortunate truth is that four of the 100 members of the Senate got there without the consent of the governed. They were appointed to fill seats abandoned by someone who moved on to another job (including Barack Obama and Joe Biden). In the House, by contrast, vacated seats can be filled only by special elections.

The number of unelected senators will soon rise. Republican Mel Martinez of Florida is stepping down rather than serve the last 17 months of his term, and Texas Republican Kay Bailey Hutchison plans to leave this year to run for governor. Once their successors are sworn in, 27 percent of Americans will be represented by senators who didn't get a single vote in a free election.

Among these unfortunates are the people of Illinois. Not only did they have no say on their new senator, but they are stuck with a risible appointee, Roland Burris, named by a governor, Rod Blagojevich, who was impeached for his corrupt selection methods.

That's something Illinoisans will have to live with until November 2010, when there finally will be an election for the office. Unless, that is, the federal judiciary intervenes. Next month the 7th Circuit Court of Appeals will hear a lawsuit arguing that when a Senate vacancy occurs, an election must be held within a reasonable period, and any appointee may serve only for that brief interim.

It's an audacious argument—considering that in the last 96 years, 184 people have served in the Senate without winning an election. But audacity is in order when an entrenched custom violates the plain design of the Constitution.

For most of our history, the public had no say on the upper house. Senators were chosen by state legislatures. Not until the ratification of the 17th Amendment in 1913 did voters gain the right to elect them.

The amendment also provided a democratic means to fill empty seats. "When vacancies happen in the representation of any state in the Senate," it decrees, "the executive authority of such state shall issue writs of election to fill such vacancies." Shall issue: Put simply, the governor has to convene a special election. But confusion arises because the amendment says the legislature may authorize the governor "to make temporary appointments until the people fill the vacancies by election as the legislature may direct."

The lawsuit says the overall meaning is inescapable: Governors must promptly call elections, and they may appoint someone to fill in only until then. That claim rejects the prevailing assumption that a "temporary" appointment justifies dispensing with democracy for two years or more.

But it affirms what the drafters of the amendment had in mind. Sen. Joseph Bristow of Kansas, the chief sponsor, said it would establish the same procedure for Senate vacancies as the Constitution provided for House openings: to let voters choose. The goal was to allow Senate appointments only until a special election could be organized. That fit with the entire purpose of the amendment, which one congressional report said was to make it "impossible to defeat the will of the people."

Will the appeals court—or, ultimately, the Supreme Court—buy this argument? The chances are not good. A district court didn't. And in 1969, the Supreme Court went along with a lower court ruling that New York didn't have to hold a special election in November 1968, after Sen. Robert Kennedy's assassination. The court issued no opinion, though, so it may have simply thought that since November 1968 was already passed, the issue was moot.

But if the Supreme Court can, at this late date, finally declare that the Second Amendment protects an individual right to own guns, maybe it can recognize that the 17th Amendment also has a clear meaning that has long been ignored. When in doubt, it makes sense to respect the language and purpose of a constitutional provision.

In this instance, that means: Let the people decide, and sooner rather than later. The 17th Amendment, which was supposed to give power to the voters, should no longer be used as an excuse to take it away.

COPYRIGHT 2009 CREATORS.COM

Comments

MJ|8.13.09 @ 7:14AM|#

The temporary appointment clause is a loophole big enough to drive a mack truck through. In most cases I've seen the Governor schedules the special election for the 1st congressional election after the incumbant resigns. They may not following the sprit of the amendment but they are following the letter.

But why does Chapman want to enforce the spirit of an amendment which has done more to wreck the dynamics of federalism than any other single change made to our government? The Senate used to represent the governments of the States, as such they were a wall against the federal goverment's mandating the states doing what the feds wanted. Democracy is nice and all but it is a means to an end, not an end in itself.

|8.13.09 @ 7:47AM|#

MJ -- You said it better than I could. Agreed, 100%.

Joel|8.13.09 @ 7:48AM|#

Come on, like the elections matter. The governor and his cronies appoint a hand-picked stooge ... or the governor and his cronies appoint TWO hand-picked stooges and let the voters pretend to choose between them in a rigged election. Every way you look at it you lose.

Worry about important things, Chapman. The "elections" have been a lost cause since ... well, forever.

Alan R. Light|8.13.09 @ 8:35AM|#

I say we should repeal the 17th Amendment. Senators were originally intended to be representatives of the various State governments to the Federal government, and this balanced this power against the mobocracy of the House of Representatives. Senators only had to appeal to the legislators of their home states, so they were not easily susceptible to either the demands of the latest moral panic or to the demands of their financial supporters. Representatives, on the other hand, were to represent no more than 60,000 people, which again meant that the numbers were small enough that they could meet the voters individually, and even know many of them - until the number of representatives was capped at 435. Now, representatives have no choice but to spend lots of money advertising their existence to the public, and that means they are also beholden to their financial supporters . . . and instead of a balance of power between the people and the influential classes liable to control the State governments, we have two houses that do not balance each other at all, but both represent the monied interests that have bought and paid for them. A recipe for corruption for sure.

Repeal the 17th Amendment, and introduce absolute representation. That would be the only way forward, but it's probably too late for that now, anyway.

|8.13.09 @ 9:42AM|#

Why on earth would he be defending an amendment that should never have been ratified in the first place!?

The 17th Amendment goes completely against the original view of the founders. This is not a Democracy and was never intended to be such. We live in a Federalist Republic with representational democracy. Referendums and popular vote are not a guaranteed right anywhere in our founding documents - why is it that people continue to believe that a democracy and a democratic system would be the answer? Have they never heard of the Tyranny of the Majority?

hammeredHead|8.13.09 @ 9:56AM|#

All the other posters are right on the mark here. The 17th ended the republic and converted it into a democracy. It has been asked if it is it even possible to directly contradict the body of the constitution with an admendment.

Anyway as we are ignoring the constitution anyway, I will happily ignore this one.

|8.13.09 @ 10:23AM|#

Right on Hit and Runners!

I am surprised that a Reason writer would pick on this issue, instead of an article showing how having a governor appoint a successor should be pointing the way to having the States return to appointing the Senator in their legislatures.

So, do we have a closet Progressive in the house of Reason?

|8.13.09 @ 10:45AM|#

I'm with Joel. It doesn't make a fucking difference if they're appointed or elected. You'll get the same guy either way in a lot of cases.

|8.13.09 @ 10:51AM|#

Just 4? Try 100. There is no one in the Senate representing my views -- not even close.

|8.13.09 @ 11:32AM|#

@Tyler et al.

You guys really trust the government on this one?! Tyranny of the majority... what about tyranny of the government? I won't deny that people are stupid, but governments are corrupt and mostly stupid. I think it's a good trade-off. The 17th Amendment fixed a flaw with our constitution, methinks.

|8.13.09 @ 11:55AM|#

You guys really trust the government on this one?!

We trust the state governments to do everything in their power to keep the federal government cut down to size, Dan. The 17th Amendment took away the only tool for maintaining a small, limited national government and preserving power devolved to the states. It was a crippling blow to the republic.

|8.13.09 @ 11:55AM|#

My vote is also for the repeal of the 17th amendment.

|8.13.09 @ 12:10PM|#

Do you honestly think we would have fared any better under senators who were chosen by elected state governments? Democracy is just plan over-rated.

|8.13.09 @ 1:07PM|#

This is stupid. The best time to have an election to fill the vacancy is at the next Congressional election, because elections are damned expensive and that's when you'll get the highest turnout.

A couple of governor-appointed senators serving less than 2 year terms is not any kind of threat to democracy.

jhn|8.13.09 @ 1:59PM|#

Agreed, Steve's way of the mark here. It's perfectly reasonable to hold an election at the time of the next regularly-scheduled election.

The notion that states are opposed to big federal government is nonsense. They love federal dollars. Appointed Senators never did much to constrain the federal government; at least, not any more than elected ones do. It is true that the federal government massively increased in size after the passage of the 17th Amendment, but that's not a causual relationship.

What we need to have is a nice, hereditary House of Lords.

jk|8.13.09 @ 2:19PM|#

Government given the monopoly on force to protect us from force and fraud, not commit it.

Unfortunately people soon discover that they can use that monopoly on force to commit acts of force and fraud on others, but since they do this through government they claim legitimacy.

That is the danger of true democracy, and why the Senate was originally set up the way it was.

|8.13.09 @ 3:43PM|#

The notion that states are opposed to big federal government is nonsense. They love federal dollars.

Odd, then, that the growth in national government roughly coincides with the 17th amendment.

The states may love transfer payments, but they love transfer payments that are a net burden on them not so much, and the strings attached to those payments (blood alcohol, etc. ad infinitum) not at all.

Craig|8.13.09 @ 3:55PM|#

I wouldn't worry so much about living without democracy for a few years -- I'm hoping we can do away with it all together, and live in freedom instead.

I also don't understand why anyone thinks that repealing the 17th amendment and having state legislatures appoint Senators would make any difference at all. The political establishment in each state already picks the Senate candidates, and would continue to do so if the people didn't get to vote.

Craig|8.13.09 @ 4:00PM|#

Odd, then, that the growth in national government roughly coincides with the 17th amendment.

Try looking for a few other more relevant causes: the income tax, the Federal Reserve, the vote being extended to more people, the nationalization of education/brainwashing, and the regrettable rise of socialism worldwide.

|8.13.09 @ 4:37PM|#

It should be noted that the original clause in the COTUS does not actually specify how the States are to choose their Senators.

Before the 17th Amendment several states chose their Senators by direct election. The 17th just formalized something that was becoming more and more prevalant with time.

That said, I am in the Hit and Run faction that thinks the 17th Amendment was a bad idea.

|8.13.09 @ 4:49PM|#

It might also be noted that the the COTUS does not actually specify how the States are to choose their Electors for President and Vice-President.

And the modern fetish that "the people" have any business being involved in the process was certainly not shared by a large number of the founders.

But I expect their would be fairly universal protests these days if any state ever tried to change from direct election buy the people.

|8.13.09 @ 4:51PM|#

I do know the difference between "their" and "there", so I have to believe that my keyboard is under the influence of a malevolent force.

|8.13.09 @ 4:56PM|#

Odd, then, that the growth in national government roughly coincides with the 17th amendment.

I'm with Craig on this one. This just happened at about the same time as the country went all nutso "progressive" like Teddy Roosevelt and the Rough Riders charging up San Juan Hill (while the regulars who actually took it were marching back down :).

JS|8.13.09 @ 5:19PM|#

Germany still has an upper house appointed by the state governments, and their federal system has been much more centralized than the United States'. I don't think the 17th Amendment mattered at all.

JohnJ|8.13.09 @ 6:46PM|#

The 17th Amendment removed the structural stumblingblock to centralization of power in the federal government. If it were repealed, we'd see federal government growth yield and reverse, and liberty expand.

|8.14.09 @ 4:11AM|#

In this article it staes that Obama and Biden were selected for theri seats and not elected. I'd like to understand what they mean by that clearly? I know Obama was elected by the people of Illionois for the Senate, but was their something I am not aware of? I tried and looked all over to find info on if he was selected instead of elected, but no luck. I'm curious to learn more about this...Thank you

JB|8.14.09 @ 6:26AM|#

I'm glad to see that I'm not alone in looking for a repeal of the 17th Amendment. Most people have no clue what I'm talking about when I mention it.

|8.14.09 @ 5:47PM|#

agree with JB about repealing the 17th amendment. then we wouldn't be talking about this.

|8.14.09 @ 9:13PM|#

Repeal the 17th Amendment! Put the corruption back in the state house where it belongs! I don't know if it would make much difference in the behavior of the senators, but it would have to make a difference in how they campaign; they wouldn't have to spend most of their time and favors to get elected.

Anyone elected by millions of people doesn't represent me, not hardly.

I've always thought the 17th amendment was a bad idea and I'm happy to see so many here agree with me.

And while we're getting the 17th repealed, let's change that part of Article I that says "no less than 30,000" to "no less than 30,000 nor more than 70,000". Then I'll actually have a representative in the federal government. With that small a constituency, big election ads are a waste of money; they can get better served by going door to door and meeting their people.

magic|8.16.09 @ 6:18AM|#

thanks very sesli chat

|8.16.09 @ 2:47PM|#

I am more and more coming over to the non-voting mindset. I am willing to serve on a jury so that I can do my jury nullification duty for any consensual-crimes but voting is another matter entirely. Being one out of 12 is very different than being one out of millions.

http://www.strike-the-root.com/91/knight/knight6.html

|8.17.09 @ 3:37PM|#

The 17th amendment should be repealed because it removes the "checks and balances" within our congress. The Senate was meant to be appointed by the state legisatures and the Lower House was intended to be elected.

Senators are supposed to be agents of state government...Representatives are supposed to be agents of the people.

Now, we have two duplicitous Houses; we have to watch the antics of 535 "Representatives"...don't 435 cause enough chaos?

This is 2009; we don't need that many people in congress. What we really need is a system which allows only one Senator appointed by his state legislature and two State Representatives elected by the people. It's much easier to watch 150 members of congress than 535.

Next, give all CITIZENS of legal voting age a voting card and computerize elections so a person can vote from his home PC.

Then, we might get less federal government, more states rights, and, "god-forbid"....a better nation.

John|11.4.09 @ 10:25PM|#

Legislation before the seventeenth amendment was passed:

1)Both National Bank bills, National Banking system (1860's till 1913) and eventually the Federal Reserve Act
2) The Erdman Act (outlawed "yellow dog" contracts)
3) Pure Food and Drug Act,
4) Land grants to corrupt railroads
5) Sherman Anti trust act
6) Alien and Sedition Act

And the list goes on.

Pre seventeenth amendment senators did not give a hoot about states rights if federal power could be used to subject a minority of other states to their states advantage.

Centralization was in no way slowed down by state legislative appointment. If that was the case then Germany should be one of the most decentralized governments on the planet.

The surest way to bring back Federalism is to revive the non-delegation doctrine. Federal Executive Agencies pass more laws per year than all laws passed by congress and signed by the president through out history. And those congressionally created laws include ones that the federal courts struck down.That sheer amount of regulation floods the courts on the state level (because state governments delegate as well) and the Federal courts cannot nullify them since the Supreme Court will not let them due to New Deal case law.