Repealing the 17th

The Salt Lake Tribune reprinted an article from the NY Times entitled “Why state legislatures should not pick U.S. senators.” The author points out how a wealthy robber barron named William Clark, essentially purchased a senate seat by paying off his state legislature. Actions such as these led to the creation and passage of the 17th amendment which put the election of senators into the hands of the people.

The author correctly points out that this is corrupt politics at its worst. However, he is incorrect in his assessment of the 17th amendment.

When the Founding Fathers created our government, the “checks and balances” we often talk about came because of the conflict designed into the system. Each branch of government has the ability to strike at another branch. The congress with its House and Senate has to pass legislation through both. The Senators used to be appointed by the states to further enhance the conflict so that when House members who were elected by popular vote made promises to the people, they could be held in check by those who were looking out for the State interests and wouldn’t have the same body they were looking out for. Senators were to protect the interest of the states while Representatives were for the interest of the people.

It would have been far better that instead of passing the 17th amendment, we had made it a felony to contribute to a state legislator if you were running for federal office. If we had done something like that rather than put the 17th amendment in place, we wouldn’t have the outcry for states’ rights these days because the states would still have an advocate in the Congress.

23 Responses to “Repealing the 17th”

  • lewisbarnavelt:

    In Utah, factions within the Republican party pick our Senators, ie. The Tea Party & Mike Lee and Tim Bridgewater, so I guess having our state legislature pick our Senators wouldn't be much different.

  • ChirleyRodriguez:

    Sorry, but I want a say in picking my senator. I wanted Cheryl Egar (sorry she has been washed under the bridge and I'm not sure I spelled her name right), but I didn't even get a chance to vote for her because I wasn't one of the few representatives allowed to vote in the meeting to select who would run in the primary. Now I'm stuck with two choices that I don't like as well.

    There is no way I want to give the right to vote for my senator back to the legislators.

  • Cptreft:

    When it comes to corruption it is mostly in Washington D.C. and the way to stop it is NOT to take the voice of the people out of it but to stop the Career Politician. To do that is NOT to repeal the 17th Amendment but to limit the time these clowns stay in office. The way we have now is to vote them out like we did with Senator Bennett. BUT if you look we have an even worse offender in Senator Hatch. When he ran for office agents Senator Moss in 1976 the good senator stated that “Two Terms is Enough”. Well he has served two terms more than his predecessor. Politics is NOT a career and never should be. We need to also have an Amendment to LIMIT Congressional Terms to Two in the Senate and six in the House.

  • lewisbarnavelt:

    I disagree with your assertion that the states would still have an advocate in Congress. One reason for the passage of the 17th amendment was due to the fact that some states were taking years to seat a Senator due to partisan bickering in state legislatures and the people in those states were being shortchanged by NOT having a voice in national government. Oak, it is sad to see that you support these attacks on our democratic institutions. The Constitution in its original form is a fantastic document, but it did have its problems. Our framers would be the first to admit it, that is why they created a process for keeping the Constitution alive by being able to amend it if the vast majority saw a need to do so. Apparently the vast majority felt it was necessary to allow voters to choose Senators because of problems with state legislatures choosing the U.S. Senate. Perhaps allowing voters to choose is not the perfect solution but re-creating a past problem isn't the best solution either.

  • DMS:

    Cptreft, Utah has one of the most corrupt governments in the nation; it's not just D.C.. A report just came out this year that showed that over 60% of proposed bills by our state legislators directly benefit close family members or good friends of the legislator who proposed the bill. If that is not corruption I don't know what is.

  • lewisbarnavelt:

    DMS, I agree wholeheartedly. The antiquated caucus system in Utah has become a shield to protect corruption. Our legislature is one of the most big government oriented legislatures in the U.S. with an average of about 400 laws per six week session. Imagine that! In the past decade our legislature has passed 4,000 laws, many of which have cost the state millions of dollars in litigation costs because of the lack of debate and subsequent unconstitutionality. We simply don't need 4,000 laws or legal changes in 10 years and out of control, over-sized state government being a nanny to the citizens of Utah. The legislature has become direct micromanagers of just about every facet of state government and increasingly local governments and many legislators don't even have the expertise or experience to do so. What is even more frightening is that many of these same out of control legislators who have created big government in Utah want to select our Senators in Washington, D.C. That doesn't bode well for the future of the U.S.

  • Dougc:

    There are many differing opinions about the 17th amendment. At first blush, it does seem strange to find that some people want to take away our “right to vote” for our senators. We need to back way up and talk about checks and balances before we have that discussion. We need to talk about the 3 branches of government, and we need to talk specifically about the legislative branch. The legislative branch has both the house and the senate, and that is no accident. The people must have representation (through the house), and the states must have representation (through the senate). If the senators are elected by the voice of the people, then they do not represent the state, they represent the people, just like the house does already. Therefore, with the 17th amendment we don't really have a house and a senate, we just have two houses. The needed checks and balances between the two have been smoothed over, and some of the states' rights have been swept out the window. Our “right to vote” for senators vs. rights of the state? Which are more valuable? We would not be losing your right to vote for representation — we have that with the house.

    Some comments have been made about states who went many years without choosing a senator, because of bipartisan bickering and so on. This is true and did happen quite a bit. In fact, when the 17th amendment was passed, I believe 29 states had already instituted their own form of the 17th amendment by effectively putting their senate candidates to a vote of the people, then appointing whomever was chosen by the people. As a state, they have the right to do this. These problems cannot be ignored, and it is true that the 17th amendment made these problems go away. The question remains: Was losing some states' rights and state representation in congress worth fixing these problems? It's a complicated discussion.

    I do not believe that the loss of states' rights was worth it. I believe that the loss of representation for states in congress has been very detrimental to our country, and to us as citizens.

    We don't need two houses, we need a house and a senate. I want our senate back, I want our lost state rights back. I want the 17th amendment repealed. The states who cannot appoint a senator because of bipartisan bickering can solve their own problems because they will have the right to do so. If they want to elect their senators by popular vote and remove their own rights, they have the right to do so.

  • lewisbarnavelt:

    Dougc, but who decides for the state? In Utah it is a small, vocal minority as we have seen with the overthrow of Bennett for some virtually unknowns. That is a scary thought because you could have a radical, Nazi-like group of people hijack the caucus system and basically install their own people to power. The problem with your argument is that you separate the state from the people. The people hold absolute control, where in our current political climate, the state wishes to exert control over the people. I would be more amenable to our state legislature picking our U.S. Senators if they would be more responsive to the people, but our own local representatives, even house members who are supposed to be responsive to the people have become responsive only to their own interests, to that of their friends, or the party (60% of votes cast in the Utah legislature was tied to a personal connection to our legislators according a recent news report); therefore to let them (our legislators) pick a Senator to represent the state really is a pick to represent just them and their interests. The problem needs to be fixed on the local level before it can be fixed on a national level.

  • Lewis, isn't it healthy that the people got involved when they got upset with the direction of our government? Doesn't that reinforce the point that when the people see an issue they will rise up? If a Nazi-like leader did rise up, I'm confident the people would awake to the problem and rise to overthrow that individual.

    As for the 60%, that completely misrepresents the true picture. If I'm a teacher in the legislature and vote for an education bill, of course it may benefit my fellow teachers and family. However, that person was elected by his local citizens and it is their responsibility to watch what that person is doing in office. If they feel he/she isn't representing them but only his/her friends or donors, then they can throw him out.

    In repealing the 17th, it puts more responsibility on the citizens to elect a quality state legislature and thus engages the citizenry all that much more.

  • Dougc:

    Lewis, you make some very strong arguments, but they have easy answers. It is false to believe that a “small, vocal minority” was responsible for the overthrow of Bennett. That so-called minority were elected by *every* person in Utah who were willing to attend their local Republican precinct caucus meetings.

    You say that a “you could have a radical, Nazi-like group of people hijack the caucus system” and this is true, but ONLY IF the good hard-working people themselves are NOT ATTENDING the caucus meetings like they should. In my caucus meeting this year there were more people than ever before. There were 82 people attending. There should have been 400-500. How many attended your caucus meeting? If all 400-500 of my neighbors had been present then do you think it would be possible for a “nazi-like group” to hijack that? Yeah, I don't think so either. The caucus meeing is *the most important* vote that we have as Utahns, and people don't understand that. We need to educate the people.

    You say, “The people hold absolute control”, and I say, “They do not if they do not attend their caucus meetings.” Control that you do not exercise is no control at all.

    Everything else you talk about would be fixed if people would only attend their caucus meetings. Every republican elected office in Utah is begun at that neighborhood caucus meeting. You also say, “The problem needs to be fixed on the local level before it can be fixed on a national level. ” and I agree with you. If we got our neighbors to learn, listen, and educate themselves and then attend the local caucus meetings we would have absolutely NO PROBLEM if we repealed the 17th amendment. Our state legislators would represent the people, because the people would elect good delegates who truly represent them.

  • I’ve posted a few thoughts on this issue on a previous post:

    http://www.connorboyack.com/blog/state-sovereignty-and-the-senate

    It all comes down to checks and balances, and diffusion of powers. 17th amendment supporters decry their ideological opponents who want to “destroy democracy” but fail to take into account the dangers of democracy and the reason the Founders chose a bicameral legislature.

    Senators cannot effectively represent the citizens in a state — especially in our time. Their are simply too many people. They can’t respond to inquiries, they can’t advocate everybody’s (just) causes, they can’t be a representative voice for that many people. But if they’re accountable only to a few hundred, then suddenly they pay a LOT more attention and can represent those people (and hence the State at large) far more effectively.

    Without representation in the federal government, the states have lost their voice and have become vassals to the national government. Whereas we once had sovereign states, we now have subservient political entities neutered of any influence in the federal government.

    Those who allegedly support the tenth amendment — tea partiers, 9/12ers, and all the rest — cannot effectively nor fully do so unless they likewise support a repeal of the 17th amendment. Why? Because without having a strong voice in the government (and representation), the states themselves (represented by their various legislatures) cannot influence and block the constant attempts by the federal government to accumulate more power at their expense.

    Tenth amendment advocates must first support a repeal of the 17th amendment. It’s that simple.

  • Grandmahoney2001:

    Having just taught a lengthy unit on the Constitution, at first thought, I felt the 17th amendment was a good idea. I had received a communication from Bob Bennett that started the following thought process. I started seriously began thinking about and researching the idea of who is really representing the interests of each state? While Sen Bennett's reasoning sort of made “sense” (I am not sure I had all of the facts when I wrote the letter he responded to), my major concern was in that two page response the mention of “bipartisan” agreement came up four times.

    I realized he was not really representing the “entity” of Utah. I determined from studying the original intent of the Founders (i.e. the Connecticut Compromise proposed by Roger Sherman), that a state senator is not there to fight against or compromise with the Democrats or Republicans of other states; as Senator from Utah, he should be there to represent the interests of Utah, the state as an “entity”. When a Senator is elected by the “popular” vote he is then subject to the “clamor and whims” of the voters…which is the job of the Representatives. They are only there for two years and can be more readily voted out.

    (The issue in question had to do with the creation of a new government agency: Consumer Financial Protection Bureau and how it is to be regulated. Why is the Senate even drafting legislation about financial matters – a power clearly NOT granted to the Senate by the Constitution – Article 1 section 7. The House of Representatives holds the “purse strings”.)

    If the 17th amendment were to be repealed, then it would certainly put a God-given, Constitutional “burden” back upon the shoulders of the voters in each state to elect state senators and representatives, that represent the mind and will of their constituents. If the state legislative body selects a “bad US Senator” then you vote your state leaders out in the next election which will pretty much ensure that the “bad US Senator” won't return to Washington DC. for another term.

    I totally agree with Oak and Doug that if you want to be governed responsibly, then you'd best step up to the plate and get involved. Every citizen of Utah had a chance to participate in their local caucuses and to let their voices be heard. If you weren't there or you didn't vote, then you have no one to thank but yourself for the candidates who were selected. And if you were there and your candidate was not selected, then isn't the idea of majority rules the answer, rather than having an “elite” group in place to elect our candidates? Personally, I think we are incredibly fortunate to have two honorable men to select from in the upcoming Primary.

  • lewisbarnavelt:

    Grandmahoney2001: Just some food for thought, but the state as entity never has nor will elect a Senator. No matter what, you will have people involved in the selection of a Senator which means those who appoint a Senator may curry favor. The corruption behind the appointment of Sen. Burris to fill Obama's seat is an example of the type of corruption that led to the creation of the 17th amendment. Our framers were great men, but they were not perfect men and if they lived long enough to see what was happening with the appointment of U.S. Senators by state houses, I have no doubt they would have clamored for a change. Perhaps they would have not put it into the hands of the people, but they certainly would have reformed the process in which states pick Senators. The repeal of the 17th amendment makes no sense if the original problem is not corrected. In the political world, there is always someone who is manipulating the strings of someone else. While every citizen has a chance to participate in the caucuses, many are shut out. For instance, in my caucus in Lehi, I watched someone get shouted down by the mob because he was a teacher. I couldn't believe what I was seeing but someone was demonized at a caucus, not for his political beliefs, but for his profession. Too many people that want to participate in the political process are demonized by the so-called majority, that in reality is a vocal and well-organized minority that has a monopoly on power in these caucus meetings. The fact that Carl Wimmer even suggested that Republicans crash the Democratic caucus is more evidence of how intolerant and desirous of local politicians to create or maintain a one party system. That is dangerous and until we can resolve this problem on the local level, I will not support the repeal of the 17th amendment.

  • lewisbarnavelt:

    Dougc, I attended my caucus and I did not vote for those people. I wish to be engaged in the political process but not through those who I consider radicalized and either bribe their neighbors to vote for them or work some other mojo. The caucus system is too easily influenced by those desiring a political appointment and it disenfranchises the moderates within the party by singling out those who want ethics reform in the state legislature, or shouting down people with certain professions as per what happened in Lehi. I think our Founding Fathers would be ashamed of the caucus meeting that I attended. I do agree that people need to wake up. 70% of the people want ethics reform in Utah and those 70% need to vote for people to represent that interest, but the display I witnessed at my caucus meeting showed how difficult it will be for those 70% to break down the barriers erected against them as they are demonized and publicly humiliated in front of their peers for thinking such thoughts.

  • Lewis, do you have proof that those running for a “delegate” position actually bribed their neighbors? Come on. This is just hyperbole. I mean snickerdoodles are one thing, but seriously… :)

    Lewis, were you in favor of the Citizens Ethics Reform Initiative? Is that what you're referring to?

  • lewisbarnavelt:

    Oak, you take things too literally. I'm simply pointing out a flaw in the caucus system that could be exploited. I've seen too many neighbors who don't have a political bone in their bodies show up to a caucus, look bored out of their mind, vote for the neighbor or friend that twisted their arms to vote for him/her, and then these neighbors leave–not caring about the outcome. It seems bizarre and strange that these people are determining who our future Senators will be. You are right in that Democracy is mob rule and our caucus meetings are certainly a good example of that. You could have a group of well-organized communists for example, register as Republicans and vote each other into leadership positions and delegate positions in every precinct in the state. What of that? It could happen. Right now we have seen the ultra-right wing factions of the Republican party take over our local precincts, especially in Utah County, and if anyone slightly more moderate or has the wrong profession such as a teacher speaks out, they get shouted down and heckled. I'm pretty disgusted and yes, I'm in favor of ethics reform. I wasn't until David Clark led the Utah State Legislature in a round of applause to Kevin Garn's admission that he was basically a sexual predator. I never voiced that in my caucus, but I was shocked to see our local precinct try to root out those who were in favor of ending corruption at our state capitol. In other words, I view corrupt people in charge of our current caucus system since they are doing everything in their power to hang on to their power and support corruption and misconduct, along with standing ovations, in the state capitol.

  • Lewis, for what you say to come true, you'd have to have communists organized all across the state and come up with about 1,500 delegates. And if they did that and succeeded, it would be a wake up call to the rest of the state to get involved. Caucus meetings aren't mob rule, they are an important part of the political process.

    Take for example a school board election. It's non partisan so no delegates look at these candidates, it just goes to the general public in a primary (to reduce to 2 candidates if necessary) or general election. The public knows nothing of these candidates so they just vote for the one with the most yard signs or in the case of the state school board race in our area, the person who's name appeared first on the ballot but did no campaigning except for passing out some cards at Walmart on a couple Saturday afternoons. People that don't study candidates shouldn't vote. That's why we elect delegates to dig in and represent us, and it's why we elect representatives in government to dig into an issue to know how to vote on that bill. The masses cannot be trusted to vote on legislation because they do not have the time to fully study the issue so they will invariably vote for whatever benefits them instead of looking for sound policy decisions.

    I also take issue with your statement about “ultra right wing factions.” That is not the case. What you have are people who are fed up with government as it is operating in Washington and they love the constitution. It seems that so many people today think Tea Party goers are “ultra” conservatives and continue to label them, when really they are just normal citizens fed up with the federal policies of tax and spend. They know the burdens being laid on us today will affect their children and grandchildren and they want to put a stop to that. These groups are made up of Democrats and Republicans that understand what a sound fiscal policy is.

    I and many others were shocked at the applause episode. It was totally inappropriate. However, the people in the caucus meetings weren't talking about THAT episode in rooting out “ethics” promoters, they were talking about the horrible citizens initiative that would have set up an unconstitutional oligarchy for the drafters of that bill. If you never read it, look it up and the power it gave the people who drafted the bill. It's the same thing that happens with the non-partisan races above. An ignorant electorate is told “hey this is for ethics in government” and so they vote for it (or sign on to the signature list as many people did in ignorance) and they find themselves with a change of government by a group of Kingmen.

  • lewisbarnavelt:

    Unfortunately, most people in our legislature aren't teachers but rather real estate brokers. While a teacher might vote him/herself a small raise by increasing WPU by a few percent, our real estate friends are passing legislation that puts huge amounts of money into their pockets or the pockets of their friends. The classic example would be the charter school legislation by former Rep. Ferrin, Morley, and Killpack, three charter school builders who stood to gain (and did gain) big money. Former legislator Glen Way also prepared his path to make big money developing charter schools. To top it off, SB 188 in 2010's legislative session sponsored by Howard Stephenson made legislative conflict of of interest in regarding charter schools a dead issue by not denying Charter Board Members who are current legislators to make money, but just be required to be absent from the meetings. The also lifted the cap on charter growth in order to finance even more building projects for themselves. A lot of current legislators also sit on charter school boards including Stephenson and Madsen. So while the few active school teachers who serve in the legislature are in my opinion voting for a conflict of interest when they vote for an increase in WPU, it pales in comparison to the much wealthier financiers and constructors of charter schools lining their pockets with hundreds of thousands of dollars or millions of dollars due to their legislative decisions. You can see why the legislature is so against ethics reform. They would stand to lose big money if they behaved ethically.

    Oligarchy? What do you think we have on the hill right now? A Republic? We have a one party system that our Republican oligarchy has protected by passing anti-democrat party legislation by depriving them from their sources of revenue such as payroll-PAC deductions. We already have an unethical good old boys club oligarchy on the hill right now that is more interested in lining their pockets than fixing problems. The problem with our current ethics system is that it is controlled by the very people who are unethical. The fox guarding the hen house may be constitutional but it isn't right. What is ironic is that Utah Republicans demand that Obama appoint an independent counsel to investigate the Sestak scandal, yet go crazy to think that an independent body should investigate their acts of corruption. Like Obama, the Utah Legislature would like to investigate their own corruption in order to sweep it under the carpet. Utahns are sick of this garbage, and I hope the anti-incumbent fever targets our own local representatives as well.

    Speaking of school board elections, who do you support? Tim Osborne, Donna Barnes, John Spencer, Paula Hill. There are so many that I can't make up my mind.

  • Dougc:

    Lewis says, “The corruption behind the appointment of Sen. Burris to fill Obama's seat is an example of the type of corruption that led to the creation of the 17th amendment.”

    Are you sure? My studies show that the inability of states to appoint senators because of bipartisan bickering was the main reason behind the construction of the 17th Amendment. At the time, there were far fewer situations where corruption like you mention was happening and far more situations where states were going many years without a senator at all.

    Lewis states, ” Our framers were great men, but they were not perfect men and if they lived long enough to see what was happening with the appointment of U.S. Senators by state houses, I have no doubt they would have clamored for a change. Perhaps they would have not put it into the hands of the people, but they certainly would have reformed the process in which states pick Senators.”

    Are you sure? What evidence do you have to say such things? In my reading of the fed papers it seems quite clear to me that the founding fathers (at least Madison, Jay and Hamilton) were very aware of what would happen if both the house and the senate were elected by the people. As one example that I can quickly find, Madison states, “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.” He could make no such point after the passage of the 17th amendment. I seriously doubt the founders would have changed the way senators were chosen by the states, rather they would likely spend their time (as they did when writing the federalist papers) in educating the people about why they need to attend their local caucus meetings and be involved in the important selection process of their state leaders. The interesting thing is — if most citizens of Utah would only read the fed papers, then the founding fathers will have achieved that goal posthumously.

    Lewis states, “The repeal of the 17th amendment makes no sense if the original problem is not corrected.”

    yes, I have agreed with you before on this point. However, we possibly do not agree on what “the original problem” is? My belief is that nothing needs to be corrected except for 1 thing: The people of the great state of Utah need to educate themselves politically and economically and then attend their local precinct caucus meetings and vote for good delegates. There is very little else that needs to be corrected. Everything else that is wrong with the obvious corruption in our state leaders would be corrected by that one thing. The people already have the power to fix what is wrong.

    Lewis states, “While every citizen has a chance to participate in the caucuses, many are shut out.”

    I read your story, and it's a sad story. Their vote was not shut out, and if all of the registered voters in your precinct had been in attendance, would they still be “shut out”? And then, if a small minority is shut out when your entire precinct is attending, is that wrong? In other words, if the majority rules against the minority, isn't that what a democracy is for? Again, if your precinct caucus meetings are not meeting the desires of the majority of your neighbors, then the only blame I see that can be properly placed is on your neighbors (same as mine) for not attending the precinct caucus meetings.

    Lewis says, “until we can resolve this problem on the local level, I will not support the repeal of the 17th amendment. “

    Which came first, the chicken or the egg? If the 17th Amendment is wrong by itself, then is it better to remove it first and teach the people at the same time that they must be involved in politics? Or, is it better to teach the people first, then when everyone gets it — repeal the 17th Amendment?

    My opinion is that by itself the 17th amendment does more harm than good. Currently, the “mob rule” you speak of is much more prevalent with the the 17th amendment in place than without it. The people have far more power to have a senator who represents our state by the process put into place by the founding fathers (i.e. without the 17th amendment) than they do with it. The people already have the power, but they don't yet know where it is. Slowly, surely, we are getting more people to understand representative government and to attend their local caucus meetings.

    It sounds like we may need to discuss the caucus system as well and why it is such a good thing for Utah. Many call it “antquated” or “peculiar”, yet it is one of the best systems to prevent mob rule. It works great when 5/6ths of the people stay home like they're doing now, but it works much better when they all come and participate.

    This has been a great discussion, don't you think? Thank you Lewis, in particular, for your views and opinions. I enjoy discussing this. I wish we could do it in person, it might be faster, and I would probably understand you better. I think we agree much more than it appears in writing only.

    Doug Cannon

  • Aaron:

    Missouri passed Limits on their politicians years ago. They are now finding out that the politicians that are the most constitutional must quit because there terms have run out. Then the people of Missouri have had a hard time finding people to replace them. If you want that for this state go a head and try it. You may regret it latter down the road.

  • Aaron:

    In order to correct the corruption in Government we as a people must decentralize it. We must have city governments for every 15000 people. That would make Provo city be divided into ten to fifteen cities each having the same size of government that Provo city has now. Provo should be a county with the population that it has now. And Utah should be a nation with the population it has now. We need more local government and less national government. The Constitution is only good for a population of 200,000,000 people in it's original form with only 10 amendments. The United States has 250,000,000 – 300,000,000 people today. The Constitution is to centralized for a the United States Population today. It gives to much power to too little representatives

  • Aaron:

    Missouri passed Limits on their politicians years ago. They are now finding out that the politicians that are the most constitutional must quit because there terms have run out. Then the people of Missouri have had a hard time finding people to replace them. If you want that for this state go a head and try it. You may regret it latter down the road.

  • Aaron:

    In order to correct the corruption in Government we as a people must decentralize it. We must have city governments for every 15000 people. That would make Provo city be divided into ten to fifteen cities each having the same size of government that Provo city has now. Provo should be a county with the population that it has now. And Utah should be a nation with the population it has now. We need more local government and less national government. The Constitution is only good for a population of 200,000,000 people in it's original form with only 10 amendments. The United States has 250,000,000 – 300,000,000 people today. The Constitution is to centralized for a the United States Population today. It gives to much power to too little representatives