Posted on 09/13/2002 11:35:37 AM PDT by zx2dragon
Federalism - the allocation and balancing of power between state and federal government - has emerged as a central concern of the Supreme Court under Chief Justice William Rehnquist. Slowly, but steadily, the Rehnquist Court has been cutting back federal powers, and protecting state's rights.
Many have wondered what the Court is doing. Why are the Court's five conservatives - the Chief Justice himself, along with Associate Justices Sandra Day O'Connor, Antonin Scalia, Anthony Kennedy, and Clarence Thomas - creating this new jurisprudence of federalism?
The answer is simple: they are seeking to fill a void in our constitutional structure, a problem created early in the Twentieth Century. The problem began when, in the name of "democracy," we tinkered with the fundamental structure of the Constitution by adopting the Seventeenth Amendment.
The Amendment calls for direct election of U.S. Senators. It's a change that has in fact proved anything but democratic. And it is a change whose aftermath may haunt the Twenty-first Century.
Concerns About Federalism, Especially Post-September 11
Divisions of power are rooted in our Constitution. Experience had taught the Framers the dangers of concentrations of ruling authority, resulting in their ingenious template of checks and balances, with divisions and distributions of power.
Ultimate power in a democracy resides with the people. We are not a pure democracy, however, but rather a confederated republic (one that features, as well, county and local political subdivisions).
Thus, while there is national sovereignty, there is also state sovereignty. Power has been so divided and spread for one reason: to provide for and protect the highest sovereignty - that of each individual citizen.
Only fools reject the wisdom of this founding principle of defusing power. Yet from the outset there has been debate regarding the appropriate allocation and balancing of these powers. The debate has focussed on not only whether a particular matter should be dealt with at the state versus the national level, but also on how these allocations are adjusted from time to time.
Of late, for example, along with laments for those who tragically lost their lives during the September 11th terrorist attack, there has been widespread concern with new realignments of federal/state powers that have followed in the name of homeland security.
Most significantly, as I discussed in a previous column, Washington is assuming powers that have only previously existed during a Congressionally declared war.
Creating the United States Senate: The Framers' Bicameralism
In designing our Constitutional system, the Framers sought to remedy the limits of the Articles Of Confederation, which created a loose association of states with little central power. The new system, they decided, ought to feature a better allocation of powers - and the federal government should have the powers "necessary and proper" to perform its envisaged functions. The will of the People should be the foundation, and the foundational institution should be the law-making legislative branch.
Unsurprisingly, the Revolutionaries were not very impressed with most aspects of the British model of government. They rejected parliamentary government, with its king or queen and three estates of the realm (lords spiritual, lords temporal, and the commons).
But one feature of the British system, the Framers did borrow. That was bicameralism - a word coined by Brit Jeremy Bentham to describe the division of the legislature into two chambers (or, in Latin, camera).
The British Parliament had its House of Lords as the upper chamber and the House of Commons as the lower chamber. Citizens selected members of the House of Commons. The members of the House of Lords, in contrast, were those who had been titled by a king or queen (lords temporal) and the archbishops and bishops of the Church of England (lords spiritual).
Loosely basing our bicameral legislature on this model (minus the lords, both temporal and spiritual), the Framers created the House of Representatives as the lower chamber, whose members would be selected directly by the people. And with almost unanimous agreement, they determined that members of the upper chamber, the Senate, would be selected by not directly, but by the legislatures of the states. Each state would have two Senators, while Representatives would be apportioned based on population.
James Madison was not only involved in structuring the system, but was also a keeper of its contemporaneous record. He explained in Federalist No. 10 the reason for bicameralism: "Before taking effect, legislation would have to be ratified by two independent power sources: the people's representatives in the House and the state legislatures' agents in the Senate."
The need for two powers to concur would, in turn, thwart the influence of special interests, and by satisfying two very different constituencies, would assure the enactment was for the greatest public good. Madison summed up the concept nicely in Federalist No 51:
In republican government, the legislative authority, necessarily predominate. The remedy for this inconveniency is, to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependencies on the society, will admit.
The system as designed by the Framers was in place for a century and a quarter, from 1789 until 1913, when the Seventeenth Amendment was adopted. As originally designed, the Framers' system both protected federalism and ensured that relatively few benefits would be provided to special interests.
The Cloudy Reasons Behind The Seventeenth Amendment
There is no agreement on why the system of electing Senators was changed through the enactment of the Seventeenth Amendment. But there is widespread agreement that the change was to the detriment of the states, and that it played a large part in dramatically changing the role of the national government.
Before the Seventeenth Amendment the federal government remained stable and small. Following the Amendment's adoption it has grown dramatically.
The conventional wisdom is that it was FDR's New Deal that radically increased the size and power of federal government. But scholars make a convincing case that this conventional wisdom is wrong, and that instead, it was the Seventeenth Amendment (along with the Sixteenth Amendment, which created federal income tax and was also adopted in 1913) that was the driving force behind federal expansion.
The Amendment took a long time to come. It was not until 1820 that a resolution was introduced in the House of Representatives to amend the Constitution to provide for direct elections of Senators. And not until after the Civil War, in 1870, did calls for altering the system begin in earnest. But forty-three years passed before the change was actually made.
This lengthy passage of time clouds the causes that provoked the Amendment to be proposed and, finally, enacted. Nonetheless, scholars do have a number of theories to explain these developments.
George Mason University law professor Todd Zywicki has assembled an excellent analysis of the recent scholarship on the history of the Seventeenth Amendment, while also filling in its gaps. Zywicki finds, however, that received explanations are incomplete.
Two Main Seventeenth Amendment Theories Don't Hold Water On Examination
There have been two principal explanations for changing the Constitution to provide for direct election of Senators. Some see the Amendment as part of the Progressive Movement, which swept the nation in the late 1800s and early 1900s, giving us direct elections, recall, and referendums.
Others, however, believe the Amendment resulted from the problems the prior Constitutional system was creating in state legislatures, who under that system were charged with electing Senators. These problems ranged from charges of bribery to unbreakable deadlocks.
Deadlocks happened from time to time when, because of party imbalance, a legislature was unable to muster a majority (as necessary under the 1866 law that controlled) in favor any person. The result was to leave the Senate seat empty and leave the state represented by only a single Senator, not the Constitutionally-mandated two.
Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the Seventeenth Amendment as part of the Progressive Movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive Movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) - so that direct democracy as an empowerment of the poor might not have been one of its true goals.
What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a Senator - a far easier remedy than the burdensome process of amending the Constitution that led to the Seventeenth Amendment.
Fortuntely, Professor Zywicki offers an explanation for the Amendment's enactment that makes much more sense. He contends that the true backers of the Seventeenth Amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the Framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel - money.
This explanation troubles many. However, as Zywicki observes, "[a]thought some might find this reality 'distasteful,' that does not make it any less accurate."
Should The Seventeenth Amendment Be Repealed?
Those unhappy with the Supreme Court's recent activism regarding federalism should considering joining those who believe the Seventeenth Amendment should be repealed. Rather than railing at life-tenured Justices who are inevitably going to chart their own courses, critics should focus instead on something they can affect, however difficult a repeal might be.
Repeal of the amendment would restore both federalism and bicameralism. It would also have a dramatic and positive effect on campaign spending. Senate races are currently among the most expensive. But if state legislatures were the focus of campaigns, more candidates might get more access with less money - decidedly a good thing.
Returning selection of Senators to state legislatures might be a cause that could attract both modern progressive and conservatives. For conservatives, obviously, it would be a return to the system envisioned by the Framers. For progressives - who now must appreciate that direct elections have only enhanced the ability of special interests to influence the process - returning to the diffusion of power inherent in federalism and bicameralism may seem an attractive alternative, or complement, to campaign finance reform.
Profession Zywicki likes this idea as well, but is probably right in finding repeal unlikely. He comments - and I believe he's got it right -- "Absent a change of heart in the American populace and a better understanding of the beneficial role played by limitations on direct democracy, it is difficult to imagine a movement to repeal the Seventeenth Amendment."
It would also make it much more difficult for "house leaders" to whip representatives into towing the party line.
Tuesday, December 29, 1998Blown in the wind of public opinion
By George Will
WASHINGTON — Many cynics are really sentimentalists wallowing in their disappointments. Washington fancies itself hard-bitten but actually is easily unnerved, and as the impeachment spotlight shifts to the Senate, the city is reassuring itself by bathing the Senate in sentimentality. World’s Greatest Deliberative Body, as the Senate fancies itself, will, say people who evidently have slept through the 20th century, be an elevating force, “as the Founders intended.”
Before examining that peculiar expectation, consider a puzzlement. There has recently been an eruption, in unlikely quarters, of reverence for the Founders’ intentions.
Many professors, serving as President Clinton’s poodles, say the Framers’ meaning of the constitutional phrase “high crimes and misdemeanors” is perfectly clear and absolutely binding today. Many of these professors usually say the Constitution is a “living,” “organic,” “evolving” document that means whatever contemporary construers want it to mean — as, for example, when a right to abortion is suddenly discovered in it.
Now, about the idea that the prescient Founders designed a Senate splendidly suited to devise a Solomonic solution to today’s impeachment unpleasantness. The theory, wonderfully contradictory, is:
The Senate will be judicious about impeachment because, being more insulated than the House from public opinion, the Senate is made for intellectual sobriety and moral independence. And the Senate will demonstrate judiciousness by correcting the House’s reckless disregard of public opinion.This theory about the Senate’s inclination toward disinterestedness is slain by a slew of facts, one of which is that the Senate today is a more “popular” body — more controlled by public opinion — than the House. This is so because almost all Senate seats can be closely contested, while about 85 percent of House seats are not, thanks to the natural political homogeneity of many districts and to increasingly sophisticated gerrymandering.
No Senate seat is inherently out of reach of either party. But analyst Charles Cook says in the 1998 House races, 76 winning candidates were unopposed (that is, they faced no major party opposition) and only 62 of the 435 races were competitive. Cook defines “competitive” broadly, to mean this: Without stretching plausibility too far, you could imagine either major party candidate winning. Even though the Senate re-election rate is rising and approaching that of the House, that reflects the role of money and incumbents’ advantages in raising it.
A fortuitous consequence of Clinton is that his scandals have stimulated sales of The Federalist Papers. They describe the Senate as the somewhat aristocratic component of the Republic’s constitutional order. The Founders hoped because senators were indirectly elected — by state legislatures rather than by popular elections — and serve six-year terms, senators might be largely insulated from the importuning public and, anyway, would be the sort of people not easily importuned.
Unfortunately, 85 years ago the 17th Amendment produced popular election of senators. And because so many Senate elections are competitive, Senate campaigns, particularly the fund-raising dimensions, are six years long.
Besides, the Founders, being realists, only stipulated the kind of virtues suited to the different branches. They did not say what kind of people the representatives, senators and judges would actually be. Instead, they said what kind of people each body required. Consider, for example, the judicial branch.
Alexander Hamilton considered it the “least dangerous” branch (Federalist 78) because it supposedly is the least responsive to opinion. But it has become the most dangerous, in part because it is the most susceptible to gusts of public opinion.
But the judiciary is even more blown about by opinion that is more volatile, and often less sober, than the opinion of the public — that of the intelligentsia. Change the academic culture of six law schools — Harvard, Yale, Columbia, Michigan, Chicago, Stanford — and the intellectual content of the judiciary will follow, quickly.
When delivering prompt action to appease public opinion, the Senate can be as nimble as a pony, and as thoughtful. Senate rules are rife with blocking mechanisms, but the polls are speaking to the pols, who for that reason — please, spare us further reflections on Senate’s special reflectiveness — may quickly cobble together a censure motion as a way of liquidating the public’s impatience about further consideration of Clinton’s crimes.
As do US employees and officers of foreign companies. The question is, how do we prevent that foreign influence on US elections? Merely repealing the 17th Amendment isn't going to change that. It would simply shift the money to other politicians. Prohibiting contributions from non-constituents would at least narrow the source of contributions significantly.
Does that include the national parties? I would allow any American citizen to donate any amount they want as individuals to candidates or parties -- no money from corporations, unions or PACs --- to anyone they want as long as there is full, 100% disclosure. I would also make contributions, up to a total of say $500, a full tax credit (not just a simple deduction) and end any and all Federal matching funds.
As I understand it, only individuals can make contributions to candidates now, though those contributions can be bundled by PACs. Corporations can make contributions to parties. That arises from what I think was a faulty Supreme Court decision a hundred years ago that gave corporations certain rights as citizens, such as free speech.
The trouble with 100% disclosure is that to be effective it has to be immediate. That is possible now, but neither party has much interest in enforcing it.
I guess that's the possible problem with a bigger House. Would it, after the first election, be more competitive? I suppose if there were more Congressmen and they were less exalted and had fewer perks people would feel more inclined to challenge them. Were it to become clear that your one of 1000, 2000, or 3000 Representatives won't bring in any more 'bacon' than any of the others, voting might become more of a referendum on national issues, rather than a rubber stamp for the person who's already been elected. But there does seem to be a lot of single-party sentiment in America, so I wouldn't quite bet on the change making much difference.
As for all the Senate Seats being up for grabs, I'm not so sure. Republican Senators from Massachusetts or Hawaii? Democrats from Mississippi or Wyoming? Still, the nationalization and mediatization of campaigns do make it possible for a Daschle or a McGovern to hold on in what would otherwise be a conservative state.
How would your proposal cure the problem you mentioned of US lawyers (or others) hired by foreign governments making inordinate campaign contributions effectively on behalf of their clients?
I think the other link that was broken was the tie between the voter and the Senator that goes THROUGH the statehouse. If you don't like the way your Senator is behaving (perhaps because he's bought by special interests, or the statehouse is bought by special interests and is appointing likewise bought Senators), then you vote out your state legislatures. Sure, this may take a little time to trickle up, but that was the intended process.
Of course, this was all thought up by 18th century people who studied ancient philosphy in the original Greek and home-schooled their children in Latin and calculus by candlelight.
-PJ
It wouldn't stop them. But it would do two things. First, assure that their contributions were known to the public via full disclosure, not burried in PAC dollars. Second, it would dilute the influence of the wealthy by allowing many more citizens, millions I would bet, to contribute to their favored candidates up say $500 dollars at no incremental costs to them.
There is no law ever going to be written that will take money out of politics. The answer, IMHO, is to embrace the money and encourage more people to participate. If we have several million people, each dumping $500 into campaigns, the influence of the few big spenders is severly diluted.
Don't fight the "Force", Luke. ;~)
Yes. With smaller districts where walking to streets and shaking hands would not only be more effective and much less costly than slick TV ads, challengers would have a much better chance.
I have had candidates for State Senate stop me on the street and ask for my vote. Their districts are not much smaller than the congressional districts of an expanded house would be. In most urban areas, they wouldn't cover parts of 4 counties as my district does now. It would be a lot tougher to jerrymander these insane boudries, and on an individual basis, much less expensive to run a campaign.
Overall I think we would come out with a better group of Senators.
-PJ
As far as I'm concerned, campaign financing only serves to enrich one group -- the media. We look at the millions of dollars that candidates raise and spend, and where do you think they spend it? On TV and radio ads, mostly. By eliminating these campaigns, the media will lose a huge amount of revenue that just rolls on in every two years.
-PJ
Why not just write a law that limits all contribution to federal candidates be limited to $500 from citizen constituents? Wouldn't that also serve the same purpose?
Perhaps, but I could make a very strong argument that such a law would be a violation of the first amendment. And what of the "idle billionaire" like the Rat from Jersey who is perfectly willing to spend $80 million of his own money to buy a Senate seat? With a $500 individual limit, very few could compete with him.
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