Friday, February 15, 2013

Founder's Follies V: Bobbing for Senators

The following is the fifth entry in Chredon's examination of the Constitution and where the Founders went wrong. Today, we look at direct election of the Senate.

See previous issues for background information.

Issue I: The Founders' World - Historical context of the Constitution
Issue II: The Confederate Period - The failure of the Articles of Confederation
Issue III: Washington and Madison - The Father of our Country and the Father of the Constitution
Issue IV: The Philadelphia Convention - The Primary Issues of the Framers

Now that I have laid the basic groundwork of the Constitution, the world in which it was enacted, the failure of the Articles of Confederation, the framers of the Constitution, and the items that were considered contentious at the Philadelphia Convention, it’s time to start looking at some of the Founders’ Follies – places where they, or those who followed them, made mistakes that are causing our nation no end of grief.

I’m going to start with something that is so non-controversial that you’ll think I’m crazy for bringing it up – the required popular election of Senators that was passed in the Seventeenth Amendment. So I’m going to submit some information for your approval and then you can answer the question – were the Founders wrong, or are we?

James WIlson
The Constitution created a government with three branches: the Executive, Legislative, and Judicial. Of the three, the Legislative was considered by far the most powerful and the most important. As I reported in Issue IV, the matter of the size, representation, and method of choosing our House Representatives and Senators were one of the most contentious issues of the Convention.

In all of that debate, however, the idea that the Senate would be elected by popular vote was submitted by only one delegate, James Wilson of Pennsylvania. When the resolution came to a vote, it was defeated 10 to 1. The entire concept of having the people choose the Senate was considered anathema to the Republican government the Founders were designing. Hear what some of the delegates said about the Upper House and its members.
John Dickenson

John Dickenson of Delaware moved that Senators should be chosen by the state legislatures “because he wished the Senate to consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a likeness to the British House of Lords as possible; and he thought such characters more likely to be selected by the State Legislatures, than in any other mode.”

George Read
George Read of Delaware suggested that the Senate be “appointed by the Executive Magistrate out of a proper number of persons to be nominated by the individual legislatures.” How do you think our nation would be getting along if the Senate was chosen by the President from a list of state-approved suggestions?

James Madison said, during the convention, that “The use of the Senate is to consist in its proceeding with more coolness, with more system, & with more wisdom, than the popular branch.” His Virginia Plan included “that the members of the first branch of the National Legislature (the House) ought to be elected by the people of the several States... [and] that the members of the second branch of the National Legislature (the Senate) ought to be elected by those of the first, out of a proper number of persons nominated by the individual Legislatures.”

Charles Pinckney

Charles Pinckney of South Carolina proposed that “The members of the House of Delegates shall be chosen … by the people of the several States [and] the Senate shall be elected & chosen by the House of Delegates.

On June 7th, which was only in the second full week of the convention, a resolution was passed that the Senate should be appointed by the state legislatures. While the concept was revisited from time to time, it was never seriously challenged and so we have in the Constitution “The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof.”

The primary reason given for election by the state legislatures was to maintain a balance of power between the states and the federal government. While Senators were chosen by the state legislatures, so the theory went, the Senate would act to defend the rights of the states and prevent their powers from being assumed by the national government. 

Arguing for this appointment in The Federalist Papers (#62), Madison barely mentions the decision. With 85 articles on the subject of the new Constitution, Madison, Hamilton, and Jay collectively spend three entire sentences on the manner by which Senators were to be chosen:

“It is equally unnecessary to dilate on the appointment of senators by the State legislatures. Among the various modes which might have been devised for constituting this branch of the government, that which has been proposed by the convention is probably the most congenial with the public opinion. 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.”

So if appointment by the state legislators is so “congenial with the public opinion” as to be "unnecessary to dilate on," why did the public opinion turn against it so quickly? Amendments to change to popular vote were submitted as early as 1826. In 1868, President Andrew Johnson thought the idea of a popular vote for Senate was so basic that like Madison he believed no explanation was necessary.

Historically, most of the reasons given to move to a popular vote were suspect. One reason was that corruption entered into the electoral process, with prospective Senators buying the votes of members of their state legislature. But in over 100 years, only ten Senate appointments were investigated for this type of fraud. And while the latter part of the 19th century saw the zenith of US political corruption, it was mostly in state and local governments, or in the administrations of Presidents Van Buren and Grant, not in the Senate. Nor did much of it seem to be due to state appointment of Senators. The majority of corruption was not between state governments and their national representatives. It was between powerful corporations and governments at every level. Banks, railroads, construction companies, and mines bought legislators all over America.

Another reason for popular vote was that some states implemented supermajority requirements for Senate elections and would fail to choose anyone at all in a divided and entrenched state. But this also seldom happened, and it never prevented the Senate from conducting its business. More common, especially in the post-Civil War South, were challenges to the Senator’s qualifications, challenges to the process by which they were selected, or challenges to the validity of legislature to make the selection. There were a handful of such challenges every election, and some took years to resolve. Passage of the Seventeenth Amendment did little to reduce the numbers of such investigations. Charges that state legislators were bribed were replaced by charges that state election officials were bribed. Charges that the vote in the legislature was illegally taken were replaced by charges of stuffed ballot boxes and voting the graveyards.

The one reason that was never given in support of the change was that state selection of Senators was giving us bad Senators.  No one ever challenged that the method of selection was giving us a Senate prone to gridlock, out of step with the people of their state, or committed to pursuing their personal interests.  Cases of corruption levied against sitting Senators were few.
Theodore Roosevelt

I think the most likely reason for the change was the growing power of the Populist Movement in America. Owing to the power of huge corporations and the influence of political elites, general distrust of concentrated power emerged. This led to Teddy Roosevelt’s trust-busting, the rise of unions, and the belief that ultimate power should be in the hands of the people. By 1910, progressives in 31 state governments had instituted a popular referendum for Senators. By the time the Seventeenth Amendment was passed, only two state legislatures were still selecting Senators with no input from the people. The passage of the Seventeenth Amendment was only putting into law what had already been put into practice.

This leaves us to answer the question – was this the right thing to do? 

To answer this question, we need to examine what was lost by this change. Obviously, the power of the states at the Federal level was substantially reduced. This resulted in a slow erosion of the states’ power to restrict the growth of the federal government’s scope. More and more, laws of major impact all across America were being made at the Federal level instead of by the states.

As the Federal government expanded its reach, the Senators themselves grew in power. By divorcing themselves from the need to appease their states, Senators were no longer indebted to the state governments for their positions and had control over more of the reins of government across the entire nation. This was exactly the opposite of what was needed to combat the perceived corruption in the system. Without the need to appease state legislators, Senators were free to take their directions from others – and corporate interests quickly stepped up to fill that void. The rise of corporate lobbying can be traced to the time the Seventeenth Amendment was ratified. Corporate masters no longer needed to bribe multiple members of multiple state legislatures. They could get the legislation they wanted much more quickly and easily by buying a few Senators. And the Senators themselves, no longer restricted by their need to appease the state, were open to supporting legislation that had little or no impact in their states – or even a negative impact – if the price was right.

A more modern issue of the popular vote is that of gaining media exposure in elections. Running a Senatorial campaign can cost millions of dollars. A poorly-funded candidate is an almost certain loser. So the candidate not only CAN take money from a variety of national interests, they MUST do so if they are to remain competitive. This means that the job of being a Senator is largely one of peddling influence – securing donations from wealthy donors, which we assume involves a quid-pro-quo when the time comes to vote on issues important those donors.

Since political parties also control much of the money that goes into elections, the need for money to run a campaign also ties the candidate much more tightly to party orthodoxy. A candidate that strays too far away from the party line might find himself suddenly penniless in his campaign coffers or being challenged by a better-funded candidate in the primary election.

And so, the Founders’ plan of a Senate populated by older, cooler, and wiser heads representing the interests of the state is now dust. Members of the Senate can be political neophytes with nothing more than a good smile and a wealthy backer. Would disgraced former VP candidate John Edwards have ever been directly chosen for the Senate with no political background whatsoever? 

Another argument for appointment by the state legislature is that of knowledge of the person selected. State legislatures often chose their Senators from among their own numbers, or from US Representatives of long standing, or former governors. In short, they generally all had personal knowledge of the man they were choosing. They knew his strengths and weaknesses, they knew his political connections and desires, they knew his views on important topics. In short, they knew who they were voting for and what they were likely to get. Senators hold a fair amount of power in their hands. To whom would you rather trust their selection – a group of men who know them, or a full population of voters who know him only by reputation if at all, or by the advertisements they spread about themselves. It’s like bobbing for apples – you don’t know what you’ll get until it’s too late to throw it back.

One definite point of the Constitution was that the positions of highest prominence and power were not to be handed out by the general public. Aside from the House of Representatives, all the most powerful positions in the federal government were to be filled through selection by those that knew the candidates. Senators were to be chosen by the state legislatures. The President was to be chosen by a body of knowledgeable men approved by the people for that purpose. The Supreme Court Justices and the cabinet ministers were to be chosen by the President with the approval of the Senate. 

Some people call that elitist. Some call it autocratic. But the only pertinent question is, do we get better Senators today than we did 100 years ago? Are those Senators who are now selected by the people any more responsive to the people? Are the Senators, who are chosen to represent the states, actually doing so?

Even the aforementioned James Wilson of Pennsylvania, the one delegate who suggested popular vote for the Senate, was strongly in favor of appointment by the state legislatures when he was asked to explain the new Constitution to the Pennsylvania legislature prior to its ratification.

And that is the fundamental question: Were the Founders wrong? Or were we wrong to turn away from their original plan? By whom would you rather be represented - Richard Henry Lee and James Madison, or Mitch McConnell and Harry Reid?

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