Don't repeal 17th Amendment

But do something else.

There are many calls being heard to repeal the 17th Amendment that provided for the direct popular election of members of the U.S. Senate, instead of election by state legislatures. Proponents for such repeal argue for the original intent of the election of U.S. senators by state legislatures that it would better serve to protect the reserved powers of the states from encroachment by the central government, and that state legislators would bring more expertise to the selection process.

Unfortunately, that never worked as it was designed. What actually happened was that special interests, such as banking, railroads, oil, and steel, found that they could buy tU.S. senators for a lot less through state legislators than through direct popular election.

Most state legislatures had no strong desire to protect their citizens from the central government. They were more interested in getting federal money. Accepting large donations in exchange for voting for the U.S. Senate candidate of choice of the donor was a matter of almost all upside and little downside.

There is a reason why by 1912 so many state legislatures were holding popular referenda to nominate U.S. senators and then just rubber-stamping the popular choice.

What we find today, of course, is that direct popular election is not a remedy for political corruption, either.

The solution is to do something completely different, as I propose in one of my Draft Amendments:

Selection of members of legislative bodies not elected by population

Members of the United States Senate, and houses of state legislatures whose members represent political subdivisions not based on population, shall be selected by a multi-stage nominating process that first randomly selects precinct panels of twenty-four, who then elect a person from each precinct, from among whom are randomly selected twenty-four persons for the next higher jurisdiction or district, and thus by alternating random selection and election to the next level, when they reach the top level, the number of randomly selected candidates shall be five, who shall be the nominees on the ballot for the final election by general voters, except that general voters may write-in other persons. Voters may vote for more than one nominee, using the method of approval voting. There must also be an alternative of "none of the above". The nominee receiving the most votes shall be declared elected, unless "none of the above" wins, in which case the position shall remain vacant.

This proposed amendment does not eliminate direct popular election, as the final stage. It only establishes a different nomination process, but an amendment is needed because Congress has no power to regulate nomination processes. The method for nomination is called sortition, or random selection. It removes the corrupting influence of big money, except in the final stage of the direct election.

If it was desired to eliminate the undue influence of big money altogether, the last stage of direct election could be eliminated and sortition used to select the U.S. senator as the final stage.

Flaws in other nullification legislation

On jbs.org and other sites there is a so-called "model" nullification legislation that is similar to many measures that have already been introduced in state legislatures. It, like the lawsuit of several state attorney-generals on the subject, is severely flawed.

Consider a few of its provisions:

C. Any official, agent, or employee of the United States government or any employee of a corporation providing services to the United States government that enforces or attempts to enforce an act, order, law, statute, rule or regulation of the government of the United States in violation of this act shall be guilty of a felony and upon conviction must be punished by a fine not exceeding five thousand dollars ($5,000), or a term of imprisonment not exceeding five (5) years, or both.

D. Any public officer or employee of the State of ________ that enforces or attempts to enforce an act, order, law, statute, rule, or regulation of the government of the United States in violation of this act shall be guilty of a misdemeanor punishable by imprisonment in the county jail not exceeding two (2) years, or by a fine not exceeding one thousand dollars ($1,000), or both such fine and imprisonment.

E. Any aggrieved party shall also have a private action against any person violating the provisions of subsections (C) or (D).

Here are a few of the flaws:

1. The bill contemplates provisions that are not in the Health Care Bill, which specifically forbids criminal prosecution or levies or liens to collect the "penalties" for failing to purchase insurance, but leaves it to the discretion of IRS agents to withhold them from federal government payments to the person, or take them out of tax payments first, with a remainder owing that they can claim is not the penalty but unpaid taxes.

2. It won't work to prosecute IRS agents for tax enforcement. The cases would just be removed to federal court and dismissed. But it could trigger federal prosecution of anyone attempting to enforce such a state statute for interfering with a federal agent.

3. IRS agents can do everything from outside the state and thus outside state jurisdiction, through private intermediaries like banks.

4. It does not provide for legal or financial support for persons engaged in civil disobedience in response to the provisions of the state statute.

A sound approach to nullification is discussed here.

There seems to be a naive faith that this is a simple game involving only a few pieces on a small board and only a couple of moves to victory. It is not. It is vastly more complex than games like chess or go, involving thousands of pieces on millions of squares against thousands of opponents, with largely unknown rules and without being able to see most of the board. For every move you have to anticipate every countermove and plan your next move after each. If you are going to play best learn to play well, because if you make a single wrong move it can ruin everything for the cause of freedom.

Law professor Randy Barnett makes the case as to why the health care reform legislation signed by the president is unconstitutional. But law professor Ilya Somin doesn’t see legal action succeeding against health care reform. However, he shows how it might succeed, and is worth reading on this matter. The litigation needs to be thoroughly rethought before it makes the situation even worse by giving the opposition a new precedent.