On senatorial appointments

I saw CPAC speeches on C-Span Saturday night. I saw Rush Limbaugh making his rousing speech to conference goers. I also saw Newt Gingrich call out our Attorney General on issues of race. Finally I saw Ron Paul give his speech to his fellow conservatives.

Ron Paul gave a rousing speech on an areas he often speaks about. He's considered an isolationist due to his foreign affairs stances. He talks often about the economy and reading up on him and hearing speak about economic issues I found out that he's a scholar on Austrian economics. Know one thing about Ron Paul, he's what they call a "constitutionalist".

His remarks to CPAC included references to wanting to repeal the 16th and 17th amendments. Ron Paul wants no income tax (hey I think that's great) and he wants no more direct election of Senators (eh?). You know George Will wrote a column about that last month.

The Wisconsin Democrat, who is steeped in his state's progressive tradition, says, as would-be amenders of the Constitution often do, that he is reluctant to tamper with the document but tamper he must because the threat to the public weal is immense: Some governors have recently behaved badly in appointing people to fill U.S. Senate vacancies. Feingold's solution, of which John McCain is a co-sponsor, is to amend the 17th Amendment. It would be better to repeal it.

The Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate (Henry Clay, Daniel Webster and John Calhoun) and thrived. In 1913, progressives, believing that more, and more direct, democracy is always wonderful, got the 17th Amendment ratified. It stipulates popular election of senators, under which system Wisconsin has elected, among others, Joe McCarthy, as well as Feingold.
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Feingold says that mandating election of replacement senators is necessary to make the Senate as "responsive to the people as possible." Well. The House, directly elected and with two-year terms, was designed for responsiveness. The Senate, indirectly elected and with six-year terms, was to be more deliberative than responsive.

Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power to resist what has happened since 1913 -- the progressive (in two senses) reduction of the states to administrative extensions of the federal government.

Severing senators from state legislatures, which could monitor and even instruct them, made them more susceptible to influence by nationally organized interest groups based in Washington. Many of those groups, who preferred one-stop shopping in Washington to currying favors in all the state capitals, campaigned for the 17th Amendment. So did urban political machines, which were then organizing an uninformed electorate swollen by immigrants. Alliances between such interests and senators led to a lengthening of the senators' tenures.

This morning I see this article from the Politico. There are no good alternatives to appointments. If Sen. Russ Feingold wants to force states to do special elections for Senate vacancies well his idea is not the best one.

The death or resignation of a senator would lead to a state effectively losing representation for a prolonged period, likely five or six months, before the special election is held. In 1995-96, the Oregon seat long held by Republican Bob Packwood remained vacant for nearly five months after his resignation. This possibility is dangerous in the extreme case of a terrorist attack on Congress. The Continuity of Government Commission (which I am associated with) worried that the House would be effectively crippled for months after a mass attack because members are chosen only by election. The Senate could regenerate itself quickly, as governors would make appointments to fill vacancies within days of the attack.
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Special elections under the Feingold amendment would arguably be less democratic than the current system, in which most states’ appointed senators face voters in the next general election. States would have incentives to fill the vacancy quickly to regain its representation in the Senate. In the House, where there are no appointments, some states forego party primaries in special elections and allow party committees to select the nominee.

Without appointments, states would be in a tough position. If they allow for a full election process with primaries, they lengthen the duration of the Senate vacancy and the time the state is without representation. On the other hand, doing away with primaries takes the people out of the choice for party nominees.

Consider also who might run in special elections. Candidates who could immediately jump into a race only a few months away would likely be wealthy, well-known or politically connected. There would not be much room for an outsider candidate, like Barack Obama, to break through in a rushed election.

And turnout in these elections themselves could be less than ideal. Typically, under today’s system, when a vacancy is filled, the special election is held on the next November election in an even year. The special election coincides with the presidential or midterm elections, which see high turnout. There tends to be significantly lower turnout in special elections for the House, Senate runoffs and other elections not coinciding with midterm or presidential contests.

OK, so count me in as a supporter of any attempt to repeal the 17th amendment. Having a special election isn't the answer, especially to a one in a million shot that a Governor who attempt to sell a Senate seat to the highest bidder. Unfortunately how the 17th amendment came to be was the result of a corrupt politician in Illinois:

Long before Ryan and Blagojevich, there was former Illinois Sen. Billy Lorimer, the “blond boss” of Chicago, who was caught paying off legislators in exchange for their support of his Senate bid.

That was probably a case as it turns out back then of if it's not broke don't fix it. Perhaps we don't need to fix the 17th Amendment, but perhaps that amendment shouldn't have been enacted anyway. Something to chew on.