Conservative thinkers and media personalities, including former Arkansas Governor Mike Huckabee, father of current White House press secretary Sarah Huckabee Sanders, have suggested that the 17th Amendment to the Constitution be repealed.
This would return the election of U.S. Senators to the state legislatures rather than direct election by the people.
Huckabee made that suggestion in a tweet last week after the failure of health care reform legislation in the Senate.
University of Kansas law professor Lumen “Lou” Mulligan says that making such a change would not be easy.
“The federal Constitution is very difficult to amend,” said Mulligan. “The primary way it would be done would require a two-thirds vote of both the House and the Senate and then three fourths of the state legislatures would also have to approve the amendment. It’s a very rigorous course. There’s also an option to have what’s called a convention. That’s never been done.”
Article V of the Constitution allows for a Convention of States for proposing amendments. There was a Convention of States simulation done last fall in Colonial Williamsburg, but no real Convention has been called. The 17th Amendment was added in 1913, predominately at the request of state legislatures at the time.
“The state legislatures didn’t want to appoint federal Senators any longer,” said Mulligan. “The election of the federal Senators was dominating the entire statehouse electoral process. They were never able to run on any of their issues, talk about any of the things that mattered for state government. It was the states largely who pushed for that some hundred odd years ago.”
If you look back at the federalizing of state elections, the debates between Abraham Lincoln and Stephen Douglas are an example of that, as at the time they were arguing for their party’s control of the state legislature.
“In the 1850s, the Illinois statehouse was going to appoint its federal Senator,” said Mulligan. “That dominated the entirety of that election. No one cared, then, about any of the local and statewide issues and so, they debated each other for a proxy vote.”
The practical effect of the idea of 17th amendment repeal is likely null in the current political climate as there seems no likely scenario in which two thirds of the current Senate would agree to much of anything. As an example, the health care legislation that prompted Huckabee’s tweet was defeated by a 49-51 vote.
However, if an issue that could gain enough traction like federal term limits or a balanced budget amendment were to cause enough states to agree to a first ever convention for proposing amendments, then, depending upon the rules established for that convention, potentially all of the Constitution could be on the table for rewriting, which could fundamentally change the way our republic runs today.