Jeff Flake Doesn't Want You to Vote For Him!

By Michael Bryan

Jeff Flake told a crowd in Payson at a meet-and-greet that he thinks the Unted States should go back to the election of U.S. Senators by state legislatures. We changed our Constitution via the 17th Amendment in 1912 to allow the popular election of the Senate. Flake thinks that was mistake. He thinks it better for state legislatures to elect half of our Congress behind closed doors rather than in public campaigns.

So, apparently, Jeff Flake doesn't want you to vote for him (or even be able to...). I advise you oblige him.

Comments

[Cheri]

I will be happy to help him out in that regard. Consider it done, Jeff!

[Richard Grayson]

The greater problem with the Senate is that both California and Wyoming have two senators each even though California has 68 times the population of Wyoming. Henrik Hertzberg, in a series on The Federal Papers wrote about Alexander Hamilton's disgust of the non-negotiable demands of equal Senate representation by the smallest states at the Constitutional Convention:

"Hamilton hated - *hated* — the compromise under which the Constitutional Convention was blackmailed into giving every state the same number of senators regardless of population … But it wasn’t just the future Federalist party stalwart Hamilton who hated the two-senators-per-state provision. The future Democratic-Republican party boss Madison hated it, too. At the time, the infant nation’s most populous state had around twelve times as many people as its least populous. To Madison and Hamilton, the idea that one citizen should have twelve times as much representation in the Senate as another citizen, simply because they lived in different places, was self-evidently offensive and absurd. (Two hundred and twenty years later, the absurdity is five and a half times worse: a Wyoming voter gets sixty-eight times more representation in the Senate than a Californian.)"

In the 1960s, of course, the Supreme Court invalidated such unrepresentative schemes in the makeup of state legislatures with the "one person, one vote" rulings. We're just so used to the offensive absurdity of the U.S. Senate's composition that we've forgotten why Madison and Hamilton found it obnoxious and ridiculous.

[Richard Grayson]

A visit I made to the U.S. Senate website was instructive to me:

"The election of delegates to the Constitutional Convention established the precedent for state selection. The framers believed that in electing senators, state legislatures would cement their tie with the national government, which would increase the chances for ratifying the Constitution. They also expected that senators elected by state legislatures would be able to concentrate on the business at hand without pressure from the populace.

This process seemed to work well until the mid-1850s. At that time, growing hostilities in various states resulted in vacant Senate seats. In Indiana, for example, the conflict between Democrats in the southern half of the state and the emerging Republican party in the northern half prevented the election of any candidate, thereby leaving the Senate seat vacant for two years. This marked the beginning of many contentious battles in state legislatures, as the struggle to elect senators reflected the increasing tensions over slavery and states' rights which led to the Civil War.

After the Civil War, problems in senatorial elections by the state legislatures multiplied. In one case in the late 1860s, the election of Senator John Stockton of New Jersey was contested on the grounds that he had been elected by a plurality rather than a majority in the state legislature. Stockton based his defense on the observation that not all states elected their senators in the same way, and presented a report that illustrated the inconsistency in state elections of senators. In response, Congress passed a law in 1866 regulating how and when senators were elected in each state. This was the first change in the process of senatorial elections created by the Founders. The law helped but did not entirely solve the problem, and deadlocks in some legislatures continued to cause long vacancies in some Senate seats.

Intimidation and bribery marked some of the states' selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906. In addition, forty-five deadlocks occurred in twenty states between 1891 and 1905, resulting in numerous delays in seating senators. In 1899, problems in electing a senator in Delaware were so acute that the state legislature did not send a senator to Washington for four years.

The impetus for reform began as early as 1826, when direct election of senators was first proposed. In the 1870s, voters sent a petition to the House of Representatives for a popular election. From 1893 to 1902, momentum increased considerably. Each year during that period, a constitutional amendment to elect senators by popular vote was proposed in Congress, but the Senate fiercely resisted change, despite the frequent vacancies and disputed election results. In the mid-1890s, the Populist party incorporated the direct election of senators into its party platform, although neither the Democrats nor the Republicans paid much notice at the time. In the early 1900s, one state initiated changes on its own. Oregon pioneered direct election and experimented with different measures over several years until it succeeded in 1907. Soon after, Nebraska followed suit and laid the foundation for other states to adopt measures reflecting the people's will. Senators who resisted reform had difficulty ignoring the growing support for direct election of senators.

After the turn of the century, momentum for reform grew rapidly. William Randolph Hearst expanded his publishing empire with Cosmopolitan, and championed the cause of direct election with muckraking articles and strong advocacy of reform. Hearst hired a veteran reporter, David Graham Phillips, who wrote scathing pieces on senators, portraying them as pawns of industrialists and financiers. The pieces became a series titled "The Treason of the Senate," which appeared in several monthly issues of the magazine in 1906. These articles galvanized the public into maintaining pressure on the Senate for reform.

Increasingly, senators were elected based on state referenda, similar to the means developed by Oregon. By 1912, as many as twenty-nine states elected senators either as nominees of their party's primary or in a general election. As representatives of a direct election process, the new senators supported measures that argued for federal legislation, but in order to achieve reform, a constitutional amendment was required."

So the problems seemed to be the influence of powerful moneyed interests in the choosing of Senators by state legislatures and the extreme partisan deadlocks and ideological differences among the legislators, resulting in deadlocks in which U.S. Senate seats remained vacant for years. Obviously, money is even more insidious in our political system today. I imagine the Koch brothers -- or, to be even-handed, in a liberal state, perhaps a powerful liberal or maybe a very strong coalition of unions -- could essentially dictate who the legislature would choose as Senator.

What would happen in those states where one house is controlled by Democrats and another by Republicans? (This has been the normal condition in New York State for half a century.) How does the legislature even vote for a U.S. Senator? Do they all meet as a body, with each state senator and each state assembly member/house member/delegate getting one vote so that control of one branch is irrelevant? (Obviously this doesn't apply to unicameral Nebraska.)

I'd like to read more about how the process worked, even when legislators in good faith tried to elect decent people to the Senate. (Did you ever wonder why Lincoln and Douglas spent all that time debating before voters in 1858 if the legislature picked the Senator from Illinois?)

What I suspect would happen is that states would eventually do what Oregon did, and they'd hold elections that bound the legislature's appointment power, and ultimately we'd be back to direct election of U.S. Senators again.

This is so patently absurd that it's hard to believe this is a serious proposal. That it comes from the Tea Party, which allegedly is for giving less power to government officials to control their lives, either shows how utterly thoughtless they are or, oh, I don't know, that they're fucking crazy.

[Cheri]

definitely fucking crazy

[Tom Prezelski]

I find it odd that no one so far, either on this blog or anywhere else, has brought up the fact that the direct election of U.S. Senators is provided for in Arizona's Constitution via the very method that Mr. Grayson cites as being in place in Oregon:

"Article 7, Section 9:
9. Advisory vote
For the purpose of obtaining an advisory vote of the people, the legislature shall provide for placing the names of candidates for United States senator on the official ballot at the general election next preceding the election of a United States senator."

The next section places this "advisory vote" clearly in the realm of the system of partisan elections:

"Section 10. The Legislature shall enact a direct primary election law, which shall provide for the nomination of candidates for all elective State, county, and city offices, including candidates for United States Senator and for Representative in Congress. Any person who is registered as no party preference or independent as the party preference or who is registered with a political party that is not qualified for representation on the ballot may vote in the primary election of any one of the political parties that is qualified for the ballot."

This is easily forgotten because the "advisory vote" was only invoked once, in 1912 when Henry Fountain Ashurst and Marcus A. Smith were elected after a highly contested primary and general election with the admission of Arizona as a state. The legislature, as expected and intended, simply ratified the results of the advisory election unanimously and without debate. By the time of the next regularly scheduled election, the 17th Amendment was in place.

This is all a long way of saying that what Flake is calling for is not only unprecedented in this state, but also not in keeping with the intent of the framers of Arizona's Constitution.

[mbryanaz]

Excellent point, Ted. This is why it's important for at least some of us to actually have read the Arizona Constitution!