How A 'Soft Repeal' Of The 17th Amendment Might Run Into Constitutional And Court Roadblocks

To understand why anyone would want to tinker with the Seventeenth Amendment, it helps to know why it's there in the first place. For a brief civics lesson, we turn to Jon Taylor. He chairs the political science department at University of St. Thomas. He says during the Progressive Era, there was this push to "democratize" the U.S. Senate.

"If we have direct election of U.S. Senators, we'll be able to reduce corruption. We'll be able to reduce the influence of parties, reduce the influence of money. Ironically, none of those went away after the Seventeenth Amendment was ratified."

Taylor says when the Seventeenth Amendment became part of the constitution, it federalized Senate elections. Federalizing anything tends to stick in the craw of people who champion "States' Rights". And Taylor says that's at the heart of the idea to change it.

"I think the motive is relatively clear and straightforward. It is to reduce the federal government's power, (and) improve the state governments' ability to influence federal spending. I think that's a lot of it."

The idea of what some call a "soft repeal" of the Seventeenth Amendment comes from the American Legislative Exchange Council, or ALEC. ALEC creates what it calls "model policy" for state legislatures. You may know ALEC as the conservative group that was once behind efforts to get Voter ID and "Stand Your Ground" laws on the books in various states.

The proposal that members of ALEC are considering right now would keep the Senate primary process intact. But it calls on state legislatures to pick their own candidate to put on the ballot alongside those chosen in a regular primary.

Professor Taylor at University of St. Thomas believes allowing lawmakers to pick Senate candidates would probably be unworkable, at least in Texas.

"You'd likely have to have some sort of special session to do this. You couldn't do this in regular session, you know, with the 140 days that we have. Then you'd have 'the Mischief of Faction', to quote James Madison, that you'd really run into issues of horse-trading, backroom deals, bargaining — what the Seventeenth Amendment was getting rid of."

There's also the thorny issue of constitutionality. South Texas College of Law Professor Charles "Rocky" Rhodes says when there's an election for federal office, all a state can do is regulate the time, place, and manner of the election. He points out the U.S. Supreme Court has ruled that states cannot pick a pony in a federal race.

"And it seems to me if you have, essentially, a state-endorsed candidate, that could run afoul of that prohibition of the state favoring a particular candidate with respect to their election laws."

ALEC didn't make anyone available for an interview. But, in an email exchange, a media representative for the group says the proposal is only in the draft phase, and is not yet official model policy.

 

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