The problem with the 17th

Posted: May 12, 2004 12:00 AM

There is only one time when a U.S. senator is really free to speak the truth. That is when he has announced his retirement. Since he no longer has to worry about raising money, pandering to voters or risking retaliation from his colleagues, he can say what he really thinks about issues no other member of the Senate will talk about. For this reason, it is worth listening to Sen. Zell Miller, Democrat of Georgia, who recently spoke a truth that no senator except one who is retiring would dare say.

 On April 28, Miller, the last genuinely conservative Democrat we likely will ever see in the Senate, laid the blame for what ails that august body at the door of the 17th amendment to the Constitution. This is the provision that provides for popular election of senators.

 Few people today know that the Founding Fathers never intended for senators to be popularly elected. The Constitution originally provided that senators would be chosen by state legislatures. The purpose was to provide the states -- as states -- an institutional role in the federal government. In effect, senators were to function as ambassadors from the states, which were expected to retain a large degree of sovereignty even after ratification of the Constitution, thereby ensuring that their rights would be protected in a federal system.

 The role of senators as representatives of the states was assured by a procedure, now forgotten, whereby states would "instruct" their senators how to vote on particular issues. Such instructions were not conveyed to members of the House of Representatives because they have always been popularly elected and are not expected to speak for their states, but only for their constituents.

 When senators represented states as states, rather than just being super House members as they are now, they zealously protected states' rights. This term became discredited during the civil rights struggle of the 1960s as a code word for racism -- allowing Southern states to resist national pressure to integrate. But clearly this is an aberration. States obviously have interests that may conflict with federal priorities on a wide variety of issues that defy easy ideological classification. Many states, for example, would probably enact more liberal laws relating to the environment, health and business regulation if allowed by Washington.

 Two factors led to enactment of the 17th amendment. First was the problem that many state legislatures deadlocked on their selections for the Senate. The upper house and the lower house could not agree on a choice, or it was prohibitively difficult for one candidate to get an absolute majority in each house (as opposed to a plurality), which was required by federal law. Some states went without representation in the Senate for years as a consequence.

 The second problem involved a perception that election of senators by state legislatures made them more susceptible to corruption by special interests. The Hearst newspapers were a major force arguing this point in the early 1900s.

 The pressure of public opinion eventually forced the Senate to approve a constitutional amendment changing the election of senators to our current system of popular vote. The fact that many states, such as Oregon, had already adopted a system whereby legislatures were required to choose senators selected by a popular vote was ignored.

 The 17th amendment was ratified in 1913. It is no coincidence that the sharp rise in the size and power of the federal government starts in this year (the 16th amendment, establishing a federal income tax, ratified the same year, was also important).

 As George Mason University law professor Todd Zywicki notes, prior to the 17th amendment, senators resisted delegating power to Washington in order to keep it at the state and local level. "As a result, the long term size of the federal government remained fairly stable during the pre-Seventeenth Amendment era," he wrote.

 Zywicki also finds little evidence of corruption in the Senate that can be traced to the pre-1913 electoral system. By contrast, there is much evidence that the post-1913 system has been deeply corruptive. As Miller put it, "Direct elections of senators ... allowed Washington's special interests to call the shots, whether it is filling judicial vacancies, passing laws or issuing regulations."

 Miller also lays much of the blame for the current impasse in confirming federal judges at the door of the 17th amendment. Consequently, on April 28 he introduced S.J.Res. 35 in order to repeal that provision of the Constitution.

 Over the years, a number of legal scholars have called for repeal of the 17th amendment. An excellent summary of their arguments appears in Ralph Rossum's recent book, "Federalism, the Supreme Court and the Seventeenth Amendment." They should at least get a hearing before Zell Miller departs the Senate end the end of this year.