ELECT, NEVER APPOINT U.S. REPRESENTATIVES

The Liberty Committee ^ | February 10, 2004 | Liberty Committee

[Dixielander]

Elect, Never Appoint U.S. Representatives

On June 20, 2003, we issued the following alert: "The clock is ticking. A well-orchestrated, well-financed campaign to quickly amend the Constitution is underway. A proposed constitutional amendment would take away your right to vote for your U.S. representative. We can't and won't stand by and let our republic be gutted by this amendment."

This alert was in response to the "Continuity of Government" (COG) report made public on June 4, 2003. The report calls for a constitutional amendment that would allow for the appointment of members of the U.S. House of Representatives under vaguely defined circumstances. During the June 4th press conference, COG touted their proposed constitutional amendment and predicted there would be no opposition to it. In addition, they predicted Congress would pass their proposed amendment and be ratified by the states within 14 to 18 months. Their predictions were wrong, as is their proposed constitutional amendment.

On July 23, 2003, The Liberty Committee presented opposition at a briefing for congressional staff members. Congressmen Ron Paul (R-Texas) and Vic Snyder (D-Arkansas) spoke persuasively against the COG proposal, as did Charles E. Rice, professor emeritus of Notre Dame Law School.

On July 24, 2003, Representatives Sensenbrenner, Dreier, Miller, Cole, Chabot, and Paul introduced the Continuity in Representation Act of 2003 (H.R. 2844) as the alternative to the COG proposal. H.R. 2844 is the practical and proper solution because it requires states to promptly hold special elections of U.S. House members; not special appointments.

On January 21, 2004, the House Judiciary Committee passed H.R. 2844. The U.S. House will likely vote on the legislation by February 20, 2004.

Take Action: Urge your U.S. representative to vote "yes" on H.R. 2844. Click here.

Background

House Committee on the Judiciary Press Release January 21, 2004

Congressman David Dreier September 9, 2003

Congressman James Sensenbrenner July 24, 2003

Professor Charles E. Rice June 17, 2003

Phyllis Schlafly June 16, 2003

Congressman Ron Paul June 4, 2003

Congressman Vic Snyder November 19, 2001 (pdf)

[TKDietz]

I'm not sure how repealing the 17th Amendment would give the states back their power. I suppose it might give state governments more power, but it certainly wouldn't be a grant of power to the people in the various states. Why on earth would I want those chuckleheads in my state legislature picking my state Senators? I'm all for cutting back on federal powers so that the states can have at least somewhere remotely close to the level of sovereignty they once had, but I don't see how repealing the 17th Amendment would do anything for states' rights.

[inquest]

The difference was that in the early days, electors voted for two persons apiece for President, so both the winner and the runner-up could get a majority.

[Schattie]

This debate is so far from happening it's almost not worth arguing about. Basically, there is about a 1% chance of what I advocate happening unless the public, media, and education system start educating about the benefits of a limited and indirect democracy.

And those are the best arguments for it. Should we directly elect presidents and Supreme Court Justices? Also the founders wanted state government to have a say in the federal government, which was the purpose of the Senate. An indirectly elected Senate would be a good buffer against populism.

Like I said, I know it will never happen. But if you believe in the basics of the constitution as it was intended by the founders, as all conservatives should in my opinion, you should be able to see my point, even if you don't agree with it.

[TKDietz]

The Annotations section on the link I am posting gives some interesting historical context explaining the reasoning behind the passage of the 17th Amendment. By the time it was ratified most states already had systems where the people voted for the Senators and the legislature appointed the person the people wanted.

http://caselaw.lp.findlaw.com/data/constitution/amendment17/

[meadsjn]

I think having an emergency provision in place,

We have an emergency provision: the U.S. Constitution.

Representatives are to be elected by the people. When one croaks or gets squished, the people of that district elect another one to take its place. That part ain't broke.

The part that is broke is the way Senators are elected. Repealing the 17th amendment would fix that.

[inquest]

There are a number of benefits to repealing the 17th. One is that the Senate would no longer be able to claim that it's carrying out the "will of the people". Perhaps the most dangerous feature of any republican government is the notion that everything government does, by default, carries out some popular mandate. Nothing is more effective at leading to the explosive growth of government.

Secondly, it would create a conflict of ambition between the House of Representatives and the Senate, which would gum up the works further and help prevent Congress from regulating everything in sight.

Third, it would lead to a derogation of power to the states, as state legislatures would be naturally inclined to instruct their senators to block legislation that expands federal power at the expense of the states.

And finally, it would bring state legislative elections back in the limelight. Lately, such elections get pretty much ignored because the action is mostly at the federal level. By giving state legislators a piece of the action, you'll renew people's interest in who their state legislators are, and that will in turn lead to better legislators, and ultimately, more willingness to vest power at the state level rather than at the federal.

[N3WBI3]

Most of congress still leaves some of congress to check..

[sociotard]

You were right. I was way off. Like I said, it's been a few years. This is what is true:

The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.

2/3 of the states need to call a Constitutional convention . The Convention writes up the amendment. It gets ratified if 3/4 of the legislatures approve. Theoretically, you can do anything with an amendment.

[TKDietz]

Interesting, I've never looked at it that way before. Then again though I have to admit that I haven't thought much about the 17th Amendment at all other than at one point having to learn that it exists and get a basic idea of what what it changed. I wonder though in light of what I read on the findlaw page I linked you to above whether it would make much difference since at least last time most of the states had it set up such that the legislators appointed who the people voted for in something like primaries and made it more like the way presidents are elected by the electoral college. If that's the case then I can't see how doing away with the Amendment would make the Senators feel beholden to state legislators or any less like they are doing the will of the people.

[Dixielander]

For your consideration, here's Phyllis Schlaffly's take on the COG proposal that she published in June of last year:

Print media and television channels have been reporting for months about America's responsibility to bring democracy to Iraq and other faraway nations that have no experience with self-government.

So why are some of the same people now trying to abolish the most democratic feature of our constitutional republic, namely, the right of the people to elect the U.S. House of Representatives?

An elite group of former Clinton advisers and former public officials from both major political parties gathered recently at the American Enterprise Institute in Washington, D.C., to announce their proposal to convert the House of Representatives from an elected body to an appointed body in the event of a national emergency. I'm not making this up. This crowd has set Sept. 11, 2003, as its target date to pass a constitutional amendment to accomplish this goal.

This group calls itself the Continuity of Government Commission, and the acronym is apt. The COG Commission is trying to be a cog that manipulates our constitutional process of self-government.

COG offers a "solution" in search of a hypothetical problem that doesn't exist and may never exist. COG hypothesizes that it would be a second disaster if, after a terrorist attack on the U.S. Capitol killed most members of Congress, we then had to wait several months for special elections to fill the House vacancies.

Why should it be high on our worry list that the House couldn't pass bills until special elections are held? Almost every year Congress goes about four months without passing anything significant.

COG proposes a constitutional amendment that would allow House members to be appointed - a procedure that is unconstitutional. After painting an emotional picture of a worst-case scenario, with most members of Congress killed, COG is hoping that Americans' fear of a recurrence of the events of Sept. 11, 2001, will bamboozle Congress into precipitous action. House Resolution 190 to study COG's proposals passed the House on June 5.

COG paints a dramatic word picture of what might have happened if United Flight 93 had departed on time and hit the U.S. Capitol instead of being forced down in Pennsylvania. In fact, only a handful of congressmen were in the Capitol that morning.

One of COG's proposals would give Congress plenary power to fill vacant seats "if a substantial number of members are killed or incapacitated." Another alternative would empower each governor to replace his state's dead or disabled House members. For example, Gov. Gray Davis could appoint 53 representatives from California.

The text of COG's proposed constitutional amendment contains far more words than the 10 amendments of the Bill of Rights and is a Rube Goldberg-like plan. COG would require each House and Senate member to designate in advance three to seven successors to fill his seat if it becomes vacant, and the governor from their state would appoint representatives from among those designates.

Each House and Senate member would be empowered to "revise the designations" of his successors at any time. Thus, in the 2004 elections, voters would be given the task of electing a congressional candidate to whom is attached several shadows who would fade in and out of the possibility of serving in Congress and whose actual appointment would depend on a governor's choice.

Each governor's "appointment authority" would kick in after a majority of governors issued a proclamation that an "emergency" exists because a majority of the representatives in that state are dead or "unable to discharge" their duties. The process gets stickier if the disabled representative rises from his sick bed and tries to resume the office to which he was legitimately elected.

James Madison did a better job of writing the Constitution than COG, whose members include Donna Shalala, Lynn Martin, Kweisi Mfume, Tom Foley and Newt Gingrich. The Constitution of the United States already allows governors to fill U.S. Senate vacancies and allows states to advance their timetables for special House elections.

COG's co-chairman is Lloyd Cutler, confidant of Presidents Carter and Clinton, who was also co-chairman of the 1983 Committee on the Constitutional System that tried unsuccessfully to change the U.S. Constitution in a dozen ways in order to eliminate our separation of powers.

A co-sponsor of COG is the Brookings Institution, whose president, Strobe Talbott, was Clinton's foreign policy adviser. Talbott famously wrote in Time Magazine that "nationhood as we know it will be obsolete" and that he rejoiced in the coming "birth of the Global Nation."

The United States survived the real national emergencies of the Civil War and the burning of the U.S. Capitol by the British in 1814 without Americans giving up their right to elect members of the U.S. House of Representatives. We should never relinquish that right.

[graycamel]

This sounds a little kook. Probably for emergency such as terrorism. On to another issue addressed in this forum: I have no idea why so many conservatives want to abolish the 17th amendment and go back to "original intent". Let's get rid of computers, George Washington didn't intend us to have them (sarcasm). There's no reason to give a right that we have back to the states just because the senate is supposedly a representation of the states. Nobody would support that anyway. Oh, let's get rid of Texas. It wasn't part of the original intent.

[RonF]

Here's what the Constitution presently has to say on the matter:

Article I, Section 2, Paragraph 4: When vacancies happen in the Representation from any state [in the House of Representatives], the executive authority thereof shall issue writs of election to fill such vacancies.

and

Amendment XVII, Paragraph 2: When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

So, it seems what's provided here is that if any vacancy occurs in the HoR or Senate, the affected States' governors are authorized to immediately hold a special election. Furthermore, if a vacancy occurs in the Senate, that State's legislature can provide to give their Governor the power to appoint a replacement until an election is held. To my knowledge, the several States have so provided. Extending that power to fill HoR seats would seem to make the most sense. Right now Senate seats are usually filled by appointees until the next biennial election. Some tweaking of this system might be useful (say, giving the same appointment power for HoR seats, and requiring an election to be held within 60 to 90 days), but otherwise the current system seems to be fine.

[IAmNotAnAnimal]

How having repesentatives and vice-reps (to be used only in case of emergency)?

[Schattie]

Yeah I know the arguments for passing the amendment. I just question whether the upside of passing the amendment outweigh the downside.

[Schattie]

There are many (and many more than you might think) in this country who think that the entire US system of government is broke and that we should enact a European style parliamentary system. The fact is that our institutions have pulled us through 228 years of being a republic.

I dunno, I just tend to trust the founders.

[Dixielander]

My understanding is that the members of the Senate are representatives of the states, not the people, and that the members of the House of Representatives represent the people. Its possible that we opened a Pandora's Box when we started the direct election of Senators. Just look at the character (or lack of it) of the senators for whom the people have voted. The composition of the U.S. Senate today is frightening.

[inquest]

That might work, but I would be adamantly opposed to selecting them the way the Vice President is currently selected, whereby the main candidate selects a "running mate" who's just some party flunky designed to appeal to an extra 10% of the voters but really has no independent popular support. It would have to be a system whereby the people vote for two candidates for the same congressional seat - they pick two names, and the two highest vote getters would become rep and vice-rep. That way, both could get a separate majority and both have the confidence of the people.

Truth be told, however, I don't think the necessity for changing the system is that great, and I would feel much more comfortable making sure that this COG proposal is decisively dead and buried before we have Congress talk further about what changes might need to be made.

[Schattie]

For some counterbalance to the pro-17th article here:

http://www.google.com/search?sourceid=navclient&ie=UTF-8&oe=UTF-8&q=repeal+the+17th+amendment

[Schattie]

And one of the best articles in favor of it that I have read is the CNN Findlaw Article.

[inquest]

I noted your link said that 29 states were choosing senators on a popular basis. That would mean that 19 of them were not. That's a considerable amount, considering that the senators from the 29 states would probably have been divided between the two major parties and therefore probably didn't form a fully disciplined voting block. That would have given the remaining 38 senators considerable leverage, so as to block initiatives that gave the federal government too much power.

I can just about guarantee that that's why there was such a push for an amendment to begin with, because the existing system was interfering with the new "progressive" program. Same motivation (and really, same movement) that was behind the Parliament Act in Britain two years earlier, which removed the veto power of the House of Lords.