‘Kochtopus’ ALEC model legislation to assault the 17th Amendment


Posted by AzBlueMeanie:

The "Kochtopus"-funded American Legislative Exchange Council (ALEC) is considering model legislation to assault the 17th Amendment — the direct election of U.S. Senators — at its December meeting. Think Progress reports, ALEC Mulls Assault On Constitution’s 17th Amendment — The Direct Election Of Senators:

In an agenda for a December meeting posted on ALEC’s website, one of the items up for review is language for a bill, called the Equal State’s Enfranchisement Act, that would allow state legislatures to add a candidate’s name to the ballot for a U.S. senate seat, along with the names of those nominated by voters.

“A nomination petition stating that the United States Senate is the office to be filled, the name and residence of the candidate and other information required by this section shall be filed with each Presiding Officer of the legislature of the state of __________,” the model legislation states. “The petition shall be filed at the same time as primary nomination papers and petitions are required to be filed.” The language also adds that at least 20 percent of the “then-sitting members of the legislature” must sign onto the nomination.

If ALEC’s members decide to further pursue this act and manage to get it passed in any state, it would be an assault to the 17th Amendment of the Constitution.

For over a century, Senators were elected by state legislatures. This often led to stalemates, leaving Senate seats open for months at a time. But in 1913, the country ratified the 17th Amendment, which stipulates that Americans are to directly elect their senators:

The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures.

While this proposal isn’t full repeal of the 17th Amendment (it still allows voters a final say in who becomes a Senator and preserves party nomination of candidates), it is the latest in a long line of efforts to roll back, and potentially eventually repeal, the amendment. Several Senate candidates have argued that their own elections should be decided by state legislatures, and they’re even joined in that opinion by a sitting Supreme Court Justice.

The Huffington Post reports, ALEC Floats Legislation Chipping Away At The 17th Amendment:

In early December, a group of ALEC members are scheduled to consider supporting a range of potential new model legislation, including the "Equal State's Enfranchisement Act," according to a memo posted on the group's website.

The bill would significantly increase the role of the state legislature in the election of U.S. senators, inching back toward the process used prior to the passage of the 17th Amendment in 1913. The 17th Amendment established the direct election of U.S. senators. Before this amendment, senators were chosen by state legislators.

Under the draft measure, a plurality of the state legislature would be able to nominate a candidate to appear on the ballot, alongside candidates nominated by the parties through the convention or primary process.

"It's an attempt to blunt the effects of the 17th Amendment by reinserting the state legislature and their views back into the process of electing U.S. senators," said UC-Davis School of Law Professor Vikram Amar, stressing that it was just his first "gut reaction" to seeing the bill. "By itself, it's not a full-fledged repeal or circumvention of the 17th Amendment … but it's kind of an encroachment of the vision of the 17th Amendment."

The ALEC measure is not coming out of thin air. For years, some Republican politicians have called for the repeal of the 17th Amendment, and that effort has picked up steam with the rise of the tea party movement.

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A return to election issues has been tricky for ALEC, after it received significant backlash for its earlier advocacy for voter ID laws. Last year, ALEC said it was dropping its Public Safety and Elections task force to "concentrate on initiatives that spur competitiveness and innovation and put more Americans back to work." The Equal State's Enfranchisement Act is being considered by the group's International Relations task force and Federal Relations (Federalism) working group.

George Mason University Associate Professor of Law David Schleicher argues that repealing the 17th Amendment may not have the effect that advocates believe.

"People who support 17th Amendment repeal or anything like it misunderstand what the 17th Amendment did and why it passed. … [It] was the desire to allow state elections to be about state issues and not to be about national issues," he said.

In other words, important state policy issues like transportation and jobs could get pushed aside because voters would focus instead on choosing state legislators who support their preferred candidate for the U.S. Senate.

"If people were voting in a legislative election and the state legislature would choose the senator, the senator would be the only important [issue]," said Schleicher. "People would just vote for the senator."

Amar believes that such legislation could also prove unconstitutional. State legislatures are allowed to regulate the procedures by which elections are held, but they are not supposed to be involved more substantively, which, he argues, the draft ALEC legislation would cause them to be.

"Once you start nominating candidates yourself as a legislature, you're no longer regulating the process of elections, you are contributing to its substance," he said.

ALEC Director of International and Federal Relations Karla Jones insists that the legislation is not a step toward getting rid of the 17th Amendment.

"Actually, the people on my task force that support it see it more as a way to preserve the good parts of the 17th Amendment," Jones said. "Because the reason that the 17th Amendment came into being, there were states that weren't being represented with senators, because state legislatures weren't sending in their nominees. So it's a way to preserve that, while at the same time giving state legislatures a voice in the process, which the constitutional founders originally thought they should have."

* * *

Jones said ALEC has no position on the repeal of the 17th Amendment. If the smaller ALEC task force votes to endorse the legislation, then it will go to the ALEC board, which will decide whether to adopt the model policy and post it on its website.

The 17th amendment is also popular with the vast majority of the American people. According to a HuffPost/YouGov poll taken Nov. 4-5, only 16 percent of the public believes it should be repealed, compared to 64 percent who are fine with it.

One significant issue could be how state-endorsed candidates would appear on the ballot. Traditionally, candidates endorsed by the major parties have a Democrat or Republican notation after their name.

"They might have something in some ways more powerful than a regular party label, which would be a candidate chosen by the legislation. … You could imagine a candidate saying they've been endorsed by the state. That's very powerful. … If they just appear as an independent, basically, it might be less effective," said Schleicher.

The measure could also lead to shenanigans by state legislatures. For instance, a GOP-controlled legislature could nominate a Democrat to appear on the ballot, splitting Democratic votes between two candidates in order to help a Republican nominee's chances. Or a Republican legislature could make clear that it's standing behind a certain candidate, despite whoever voters might pick in a primary, thereby creating incentives for other candidates to drop out and perhaps tipping the scales toward an establishment pick.

Brian Wietgrefe, research director for the group ProgressNow, first highlighted the bill. The organization helps promote progressive infrastructure in the states.

"ALEC tries to pass itself off as a centrist business group, and promised to stop working on elections policies," said John Neurohr, spokesman for ProgressNow. "Now it turns out they lied, and are again looking to roll back the people's right to vote for senators through a fringe-radical piece of legislation. Every new element of transparency just proves ALEC is rotten to the core."

The "Kochtopus" — underrmining democracy for the plutocracy.

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The Blue Meanie is an Arizona citizen who wishes, for professional reasons, to remain anonymous when blogging about politics. Armed with a deep knowledge of the law, politics and public policy, as well as pen filled with all the colors stolen from Pepperland, the Blue Meanie’s mission is to pursue and prosecute the hypocrites, liars, and fools of politics and the media – which, in practical terms, is nearly all of them. Don’t even try to unmask him or he’ll seal you in a music-proof bubble and rendition you to Pepperland for a good face-stomping. Read blog posts by the infamous and prolific AZ Blue Meanie here.