The 17th Amendment and the Folly of “The Runaway Convention”

 

“The Bosses of the Senate” by Joseph Keppler, PUCK, January 23, 1889

 

            In the 19th Century, U.S. senators were not elected to office, they were appointed by their state legislatures. “Intimidation and bribery marked some of the states' selection of senators. Nine bribery cases were brought before the Senate between 1866 and 1906[1].”  By the last few decades of the century, corruption of the senate was widespread as illustrated in the cartoon, with many senate appointments being bought by big money interests.

            “During the 1890s, the House of Representatives passed several resolutions proposing a constitutional amendment for the direct election of senators. Each time, however, the Senate refused to even take a vote. When it seemed unlikely that both houses of Congress would pass legislation proposing an amendment for direct election, many states changed strategies. Article V of the Constitution states that Congress must call a constitutional convention for proposing amendments when two-thirds of the state legislatures apply for one[2].”

            In 1893 Nebraska filed the first Article V application for direct election of senators. By 1911, 29 states had Article V convention applications on file for an amendment providing for direct election of senators, just two short of the 31-state threshold. The Senate finally conceded and passed its version of an amendment in May 1911, which was then approved by the House in 1912 and submitted to the states.[3]

           

"As you go through life, make this your goal:
Keep your eye on the doughnut and not on the hole
."

 

            Note that the senators gave up their emoluments only when they were faced with the real fear of an Article V convention which they could not control, so they chose the lessor of two evils.  The Article V convention applicants also did not want a convention, they wanted a Constitutional amendment, which they got.  The threat of a convention was the club, the means to the end. This was not the first time the threat of an Article V convention was used to club to urge Congress into action. In the very first Congress in 1789, two states started the ball rolling by filing Article V convention applications for a Bill of Rights. In the history of this country, half of all 27 the Constitutional amendments were supported by calls for an Article V convention. Yet there has never been a convention. That’s not a failure of the Article V convention process, that’s its success since the goal is an amendment, not a convention.

            The good folks at Common Cause have lost their way by keeping their eyes on the hole and losing sight of the doughnut. They have focused on what could happen if a convention were actually called and their fears have created a nightmare worst case scenario. They say: “Common Cause strongly opposes an Article V convention, even as we strongly support a constitutional amendment to reverse Citizens United. We oppose a constitutional convention because we believe there is too much legal ambiguity that leads to too great a risk that it could be hijacked by wealthy special interests pushing a radical agenda that poses a very real threat to American democracy.”  Furthermore: “the call for an Article V constitutional convention ‘is by far the most dangerous thing in the country today. If we ever got [to a convention], this would create a constitutional crisis unlike anything we’ve seen in our life[4].”

            All this energy, emotion and fear for something that has never happened and for which there is no logical reason to believe it ever will happen.  But logic and reason are the missing elements here. Common Cause believes that the times today are so different from the past and so threatening and our enemies are so powerful and vicious that we cannot rely on facts and experience but only on our visceral emotions. But I think the 1889 cartoon at the top belies that the times are that different. In fact the times today are very similar to 1889 and so are the solutions, particularly the solution to the dreadful Citizens United v FEC decision.

            Many volunteers around the country are working hard to convince their state legislatures to propose an Article V convention to strike down the Citizens United decision. And Common Cause is working just as hard to stop them.  What a terrible irony.

 

William Sanjour, April 14, 2017

jurason@comcast.net

 



[1] U.S. Senate, “Direct Election of Senators”, https://www.senate.gov/artandhistory/history/common/briefing/Direct_Election_Senators.htm

[2] National Archives, “17th Amendment to the U.S. Constitution: Direct Election of U.S. Senators.” https://www.archives.gov/legislative/features/17th-amendment

[3] Wikipedia, “Convention to propose amendments to the United States Constitution”, https://en.wikipedia.org/wiki/Convention_to_propose_amendments_to_the_United_States_Constitution

[4] Common Cause, “The Dangerous Path, Big Money’s Plan to Shred the Constitution,” http://www.commoncause.org/issues/more-democracy-reforms/constitutional-convention/dangerous-path-report.pdf