Frank Pignanelli & LaVarr Webb: Is 'soft repeal' of 17th Amendment a good idea?

Published: Sunday, Jan. 29 2006 12:00 a.m. MST

WEBB: I love the philosophy behind what Sen. Howard Stephenson and other Utah senators are trying to do with SB156, the so-called "soft repeal" of the 17th Amendment.

Anyone who cares about federalism, who resents the consolidation of political power at the federal level, who supports a better state-federal political balance, ought to applaud Stephenson and other supportive legislators. As a practical matter, the legislation isn't going to be enacted any time soon, and a great deal more work and education will be required. But as a starting point and as a symbolic gesture, SB156 it is both valuable and important, and it will hopefully spur further thought and ideas on how to restore the states to their rightful place in the federal system.

Passage of the 17th Amendment in 1914 led to the direct election of U.S. senators, which was clearly an enormous blow to states' rights. The nation's founders wanted to carefully balance state and federal power, so the Constitution required the House of Representatives to be elected by popular vote, but the Senate was elected by state legislatures.

Thus, the Senate would be highly responsive to the overall priorities of states, as reflected in their legislatures. It is not likely the federal government would pass unfunded mandates, usurp state power or dictate improperly to states as long as U.S. senators were answerable to the legislatures.

Unfortunately, the legislatures did not deal well with the power they enjoyed. The infighting was so intense over who should be elected that Senate seats were sometimes vacant for long periods. And corruption was common, with vote-buying and backroom deals determining the selections. So it was understandable that the Congress and the people gave election of senators directly to the people, vastly reducing the impact state legislatures have on the federal government. Whatever good reasons for the change, it had a dramatic impact on the balance of power, leaving states little recourse in competing with the overwhelming clout of the national government.

As a result, states are mostly afterthoughts for federal politicians and policymakers. The consolidation of power at the federal level has led to a federal government run amok, a federal government too big, too bloated, deeply in debt, with immense financial obligations no one believes it will ever be able to fulfill. If private businesses or state legislatures operated the way the federal government does, their leaders would be thrown in jail or they would be voted out of office.

By contrast, states, the "laboratories of democracy," balance their budgets and govern responsibly. State legislatures are far more professional, sophisticated and ethical than they were 90 years ago. I have far more confidence in my state legislature than I do in the federal Congress, which threatens to literally destroy the country with its careless, reckless and negligent spending habits.

Stephenson has produced an elegant and ingenious approach, which would have some of the benefits of the founders' original intent but stay within the current Constitution. Voters would still elect their U.S. senators, but nominees would be selected by legislative party caucuses instead of in party conventions or primary elections. It's nice to have federalism back on the agenda.

Pignanelli: The 17th Amendment is the Rodney Dangerfield of the U.S. Constitution — it doesn't get any respect. There is a whole industry (books, seminars, Web pages) dedicated to dismantling the direct election of senators. This concept enjoys the support of a diversity of heavyweights, including Supreme Court Justice Antonin Scalia and former Democratic Sen. Zel Miller.

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