The System Is Broken

"I needs me spinach", or "Whar's me piratin' outfit?"

“The system is broken” and, paraphrasing, ‘it corrupts the people we send to Washington D.C.’.   Sen. John McCain has said this, or something to this effect, literally hundreds of times in the media over the last ten years – sometimes followed by “We need meaningful campaign finance reform.”  From this rhetoric spawned the ‘McCain-Feingold Act’ or, as Rush Limbaugh aptly termed it, “The Incumbent Protection Act”, which put various limits on campaign financing which prove to be more detrimental to incumbent challengers.

McCain was right, the system is broken, but he doesn’t have clue as to why.  Otherwise, why would he assume that more legislation, derived from a broken system, would somehow fix the underlying system?

The system was broken in 1913 with the passage of the 17th Amendment.  Most people, these days, have no idea of what the 17th Amendment did, or what its impact on our well designed system of checks and balances has yielded.  Most are not aware that Senators used to be elected by their respective State’s legislatures, and not by popular vote, as is the case now.

In researching this topic, I came across a concise and understandable article by Mr. John MacMullin.  He is a lawyer who has published a number of articles on the subject which have been mentioned in the National Law Journal.  (See below for links to his website.)  John has graciously given permission to me to reprint one of his articles here in The Liberty Bunker.  If you want to understand one of the key reasons why the Federal Government is spiraling out of control, please read on.

Repeal Seventeenth Amendment

By John MacMullin

With respect to states’ rights, it should be readily apparent to all that state governments cannot exert any meaningful influence or control over the federal government, judiciary, or any other federal institution.  Let us state the problem precisely.  At the present time, there are no checks and balances available to the states over federal power or over Congress itself in any area.  However, in the history of our country, it was not always this way.

In the original design by the Framers of the U.S. Constitution, there was an effective check on Congress through the state legislatures’ power to appoint (and remove) U.S. Senators. As such, the core of the problem with state’s rights issues lies in the passage of the 17th Amendment which abrogated the state legislatures’ right to appoint U.S. Senators in favor of popular election of those officials. This amendment created a fundamental structural problem which, irrespective of the political party in office, or the laws in effect at any one time, will result in excessive federal control in every area. It also results in a failure in the federalist structure, federal deficit spending, inappropriate federal mandates, and the evaporation of state influence over national policy.

The reason for the passage of the 17th Amendment should be stated.  The 17th Amendment was passed because of a procedural problem in the original concept and not because of a need to alter the balance of power.  The procedural problem consisted of frequent deadlocks when the state legislatures were trying to select a senator.  When deadlocked, a state would go without representation in the Senate.  For instance, in the very first Congress, the State of New York went without representation in the Senate for three months.  Additionally, numerous other problems resulted from the efforts to resolve individual deadlocks.

The problem of deadlocked legislatures continued unabated from 1787 until 1913.  The seventeenth amendment, calling for popular election of senators, fixed the procedural problems, but also inappropriately and unintentionally altered the balance of power.  Instead, the 17th Amendment should have fixed the procedural problems and left the balance of power between the states and the federal government intact. 

For more information, I respectfully refer you to a law review article that I wrote, Amplifying the Tenth Amendment, 31 ARIZ. L. REV. 915 (1989). This article was cited as “worth reading” by the National Law Journal, in its March 5, 1990, publication. Additionally, I direct you to two books written by George Haynes titled “The Senate of the United States” published in 1938, and “The Election of Senators” published in 1906.  I believe that you will find that these references are well worth reading.

In my opinion, the 17th Amendment should be repealed. This would reinstate the states’ linkage to the federal political process and would, thereby, have the effect of elevating the present status of the state legislatures from that of lobbyists, to that of a partner in the federal political process.  The state legislatures would then have the ability to decentralize power when appropriate.  It would give state legislatures direct influence over the selection of federal judges and the jurisdiction of the federal judiciary and much greater ability to modify federal court orders.  This structure would allow the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change.  The existing relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little or no hope of return.

With that, the state governments should be focusing an effort to repeal the 17th Amendment, not on passing legislation or engaging in irrelevant activities, that are more than likely useless over the long term and probably also over the short.

Illustrations

Fig. A - Existing relationship

The constitutional amendment proposed would reinstate the states’ linkage to the federal political process and would, thereby, have the effect of elevating the status of the state governments from that of lobbyists, to that of a partner in the federal political process.  Figure A above portrays the existing relationship between the states and the federal government.  This relationship, combined with the effect of the Supremacy Clause, is guaranteed to concentrate power into the hands of the federal government with little hope of return. 

Fig. B After Proposed Changes

With the passage of the amendment, the state legislatures would have the ability to decentralize power when appropriate.  After passage, it would primarily be the state legislatures interacting with their appointed senators, and not with the other branches of the federal government, that would establish the “line” between the federal and state governments.  Figure B shows the effect of the passage of the proposed amendment on the relationship between the governments.  This structure allows the flow of power between the states and the federal government to ebb and flow as the needs of our federal republic change.  This structure also exemplifies the original concept of the Framers of the Constitution.

(Illustrations by John MacMullin)

Here is a link to Article V, where you can find more articles and text of a proposed amendment by John MacMullin.

Here the link to where I initially found the article. 

The fact is, the founders had it right.  To have two bodies, both of which currently function as a House Of Representatives makes no sense.  There is no differing agenda between the two, so the results are the same.  Sure, the Senate still has cloture, but it really doesn’t matter if the agendas of the bodies are the same – you’ll get the same self serving legislation from both bodies, and from the committees where legislative differences between the two bodies are resolved.  This where we get these huge spending bills and exactly why lobbyists have so much influence in Washington D.C..  

Further, if Senators were elected by the State Legislatures, what are the odds that the following would have ever been heard in the Minnesota State Legislature, when offering candidates for the Senate?  ”Al Franken is our man, by God!  He’s the best man for the job!”.  This needs to be fixed and it can be fixed – by you and me.  I encourage all to visit the  Article V page and educate yourselves.  Contact your state and congressional representatives and let’s get the ball moving!

-OMB