A bill to be considered by the 111th Tennessee General Assembly will take a major step toward restoring the founding fathers’ intent for how U.S. senators would be elected in the state, which was circumvented by the 17th Amendment to the U.S. Constitution.
The bill, sponsored by Frank Niceley (R-Strawberry Plains) in the Senate and Ryan Williams (R-Cookeville) in the House, as SB 0027 and HB 0021, respectively, changes the nomination process for candidates for U. S. Senate.
As Senator Niceley explained when he presented a similar bill to the Senate State and Local Government Committee of the 110th Tennessee General Assembly, “Our founding fathers wanted the U.S. House of Representatives to be elected directly by the people. They wanted the U.S. Senate to be elected by the state legislatures. That’s why they called it the states’ house and the people’s house.”
Election by state legislatures is how U.S. Senators came into office for more than a century, until the passage of the 17th Amendment to the U.S. Constitution in 1913.
As Senator Niceley put it, the 17th Amendment to the U.S. Constitution passed in a wave of Progressivism.
Senator Niceley also made the point in his 2018 presentation of the similar bill, “In 1913 we got a rash of bad bills.” Elaborating on what he called a “very unlucky year for the American people,” Niceley recounted the other progressive advancements that year, “we got the Federal Reserve, the income tax and we also lost the way, changed the way, that the American people select their U.S Senators.”
Niceley is in good company with nationally-syndicated radio talk show host, Mark Levin, and New York Times bestseller author, who addresses the 17th Amendment in his book “The Liberty Amendments, Restoring the American Republic.”
Levin describes the 17th Amendment as “an object lesson in the malignancy of the Progressive mind-set and its destructive impact on the way we practice self-government in a twenty-first century, post-constitutional nation,” that was sold instead, as a “transformative expansion of popular democracy.”
Over the course of 10 chapters to restore the American republic, Levin recommends Amendments to the Constitution through an Article V Convention of States. The second of those recommendations, preceded only by an Amendment “to establish term limits for members of Congress,” is to “restore the Senate” by repealing the 17th Amendment.
“Like nearly every clause in the Constitution, the Framers intended that the nature and operation of the Senate serve several functions simultaneously.”
One of the four functions Levin describes which was subsequently eliminated through the 17th Amendment, “Providing the state governments with direct input in the national government was not only an essential check on the new federal government’s power, but also a means by which the states could influence congressional lawmaking, without stripping the federal government of its enumerated primacy over certain matters of governance.”
As Levin notes, the choice of U.S. Senators by state legislatures was adopted unanimously at the Constitutional Convention.
During the robust state ratification process, where “there were various points of trepidation” as Levin describes it, each was “aired fully and passionately,” yet “none of the amendments to the Constitution suggested by any of the state ratification conventions included the direct popular election of senators.”
Levin says that with the passage of the 17th Amendment, “The balance of power that had existed between the states and the federal government since the Constitution’s ratification was dealt a critical blow,” thus starting “the long silence of the states.”
As a result, Levin observes, U.S. Senators “now spend more time with, and are more beholden to, Washington lobbyists, campaign funders, national political consultants, and national advocacy organizations.”
Indeed, after a 2 to 1 vote by the House Republican caucus in 2013, great effort had been put forth by former State Representative Judd Matheny (R-Tullahoma) between the vote and 2015 to initiate a bilateral session between all Tennessee State House and Senate members meeting with the nine U.S. House members and two U.S. Senators in a public setting to discuss relevant issues facing all Tennesseans.
After Matheny organized the event to be held in February 2016, and invitations were sent from then Speaker of the House Beth Harwell, the bilateral session was cancelled due to a lack of response from the delegation, with the exception of Congressmen Scott DesJarlais, Steve Cohen and Phil Roe who were the only three of the 11 to respond.
The bill that Senator Niceley and Representative Williams propose would keep the general election in November in the hands of the people. What the law would change, if passed, is the way that the candidates for U.S. Senate would be nominated.
Currently, the nomination process is handled through a primary process at the August election. One candidate is selected for each of the recognized statewide political parties, currently being the Republican and Democrat parties.
The bill that Niceley and Williams have put forward would have candidates for the U.S. Senate seat be nominated by the members of their respective Republican or Democrat party of the Tennessee House of Representatives and Tennessee Senate during a joint caucus meeting.
Anyone nominated as a party candidate through this method and serves as a U.S. Senator for two consecutive terms would be ineligible for nomination at the next caucus, in effect applying term limits at the same time as changing the nominating process.
An unsuccessful candidate of the nominating process could not then run as an independent or write-in candidate as a work around.
Both Senator Niceley and Representative Williams told The Tennessee Star that no other state has implemented such a measure. Niceley imagined, what if just the 11 southern states adopted the same nomination process? The result would be that 22 U.S. Senators are nominated by and answerable to their state legislatures.
As Niceley put it, “If the States don’t get some control, we can’t go on.” He added, “This bill could change everything,” painting a much bigger picture, “It could save the world.”
National Constitution Center, on the 17th Amendment’s 105th anniversary in 2018, posed the question, “What would the Senate look like today without the 17th Amendment?”
The simple answer, “It would probably be much more controlled by the Republicans.”
National Constitution Center used data from the National Conference of State Legislatures as of February 2018, and found that “Republicans control 32 state legislatures, Democrats controlled 13 legislatures and 4 legislatures are split (Nebraska’s unicameral legislature is not included).”
“That would roughly translate to 64 seats for the GOP in the current Senate,” putting “Republicans four votes over a filibuster-proof 60-vote majority and within three seats of a 67-vote super-majority needed to override a presidential veto.”
While full repeal of the 17th Amendment would be the ideal fix, there are a number of factors that make repeal problematic. If the U.S. Congress agreed to repeal, or the repeal was an outcome of an Article V Convention of States, 38 states would have to ratify the repeal.
Additionally, as National Constitution Center points out, only one Amendment – the 18th – was repealed when the 21st Amendment ended Prohibition.
Still, the biggest obstacle to repeal, as pointed out by Mark Levin and National Constitution Center, is the idea that direct election gives the power to the people.
Both of the Tennessee bill sponsors separately asked, if direct election gives the power to the people, how is that working when it comes to U.S. Senators responding to Tennesseans?
As Williams told The Star, “What we’re doing now isn’t working.”
And, as Senator Niceley put it, rather than taking the vote away from the people, “We’re returning their Constitution to them by gaining back 90 percent of what we lost in 1913.”
If the Niceley/Williams bill passes, it would go into effect November 30, 2019, impacting the 2020 U.S. Senate nomination process.