ALEC’s Proposal Threatens To Bypass Primaries, Weaken Voters In Electing Senators

Enfranchisement Act gives legislatures power to place Senate candidates on ballot without party approval.
By @FrederickReese |
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    In recent years, the American Legislative Exchange Council has been responsible for authoring some of the most controversial laws currently on the books — including the “Animal and Ecological Terrorism Act,” which recognizes certain acts of property destruction, intimidation and civil disobedience from environmental and animal rights activists, including the video recording of livestock farms, as terrorism; “tough on crime” initiatives, sponsored by the ALEC-contributing private prison industry and “Stand Your Ground,” which has been directly attributed to a rise in justified homicide rates. According to a leaked agenda from the group’s December 4 States and Nation Policy Summit, the ALEC may be seeking to add a new law to this list.

    Entitled the Equal State’s Enfranchisement Act, the law seeks to give state legislatures the power to place candidates for the Senate directly on the ballot without a need to receive party approval or secure the minimum number of petition signatures.

    “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.”

    As the legislation only requires that 20 percent of the “then-sitting members of the legislature” sign the nomination, it allows a backdoor nomination process for any minority faction — such as the Tea Party — to name Senate candidates without the consideration or consent of the state’s parties.

    This is important because the Tea Party is starting to lose ground against the mainstream, particularly, considering the party’s low poll numbers and the historic loss of Virginia gubernatorial candidate Ken Cuccinelli — the first candidate to lose in a Virginia governor race in 40 years in which the candidate is of the opposite party to the president. In light of major Tea Party losses in the last few elections, the common perception that the Tea Party caused the most recent government shutdown and the notion that the Tea Party is fueling the obstructionism in the Congress, fewer Americans support the Tea Party — according to recent polling. Even if the Tea Party was to primary mainstream Republicans, there is no guarantee that they would be successful in winning their challenges. The Enfranchisement Act removes the risk of a Senate primary run for the Tea Party — allowing them to name a candidate for the general election directly.

    Currently, this is just a proposal. But if it passes both the International Relations Task Force and the ALEC’s National Board of Directors, it will become model legislation. ALEC provides this boilerplate legislation to member state legislators, who modify the wording of the bill to make it unique to his or her state before proposing it for ratification. A growing number of individuals are finding this arrangement unsettling. As Wisconsin State Sen. Mark Pocan (D – Madison) said of the ALEC on “Moyers & Company”: “ALEC is a corporate dating service for lonely legislators and corporate special interests that eventually the relationship culminates with some special interest legislation and hopefully that lives happily ever after as the ALEC model. Unfortunately what’s excluded from that equation is the public.”


    Defining “liberty”

    At the core of this proposal is a movement on the right known as the “Liberty Amendments,” derived from a book of the same name written by Mark Levin. Those that adhere to Levin’s philosophy believe that over the last century the Left has implemented political changes and social programs that have vested power that should be with the states to the federal government, warping the perceived image of the nation’s founders’ vision for the American government.

    Levin believes that it is not possible to correct this perceived flaw through the regular legislative process. As such, he proposes a series of new amendments to the constitution, which include term limits of 12 years for all senators and representatives, single 12-year term limits for all federal and state judges with their respective legislatures having the prerogative to overturn decisions with a three-fifths vote and capping federal spending to 17.5 percent of the gross domestic product. Other terms sought in the “Liberty Amendments” are:

    • limiting income tax to 15 percent of an individual’s income,

    • banning other forms of taxation, limits to federal regulations,

    • subjecting all federal departments to stand-alone reauthorization bills,

    • allowing the state legislatures to amend the constitution without the consent of Congress, without forming a Constitutional Convention and with only two-thirds of the states in agreement,

    • allowing the states to override acts of Congress with two-thirds agreement of the state legislators,

    • requiring photo ID for all federal elections and limiting early voting.

    Most pressingly, Levin proposes a repeal of the 17th Amendment — the direct election of senators.


    Popular election of senators

    When the nation was formed, it was decided, in what has became known as the Great Compromise, that the lower house of Congress, the House of Representatives, should represent the people and should be directly elected by the people. The upper house, the Senate, would represent the states and would be chosen by the states’ legislatures. The idea was that the senators — who were not popularly elected and are therefore immune of electoral pressures — will serve as a “control valve” to the volatility of the House. In addition, state legislatures maintained the right “to instruct” their senators, which maintained their presence both indirectly and directly in the Senate.

    What actually happened is that the non-popular appointment of senators created a situation in which some senators bought their seats. Between 1857 and 1900, the Senate investigated three cases of election corruption, including the 1900 case of William A. Clark being expelled from the Senate once it was determined that he bought votes in his state legislature election. In addition, state legislature elections for U.S. senators tend to be contentious affairs, with elections regularly becoming deadlocked. In one case, one of Delaware’s seats sat unfilled for four years until the deadlock was cleared. In 1897, the Oregon House of Representatives failed to convene due to a third of the House’s members refusing to be sworn in over the choice for senator, breaking quorum.

    One of the finer and more relevant points that the 17th Amendment addressed was the relationship between rural areas and the cities in electing senators. Prior to the “one man, one vote” rule required by the Supreme Court, rural counties and cities received equal weight in the legislatures. As there were more rural districts than urban districts, this ensured that the Senate would stay in conservative control. The fact that state legislators were, in fact, electors to the Senate made the legislators prone to corruption from major corporations that seek to win influence with the federal government. By the time the 17th Amendment passed, most elections of state legislators was based on federal issues focusing on potential choices for the Senate, with little attention paid to state issues.

    “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 George Mason University Associate Professor of Law David Schleicher. “People would just vote for the senator.”


    Attempts to control “the game”

    Levin argues that a return to senators representing the states — instead of the people — will ensure that the state’s wishes are met. With the majority of statehouses being under Republican or partial-Republican control, state legislature election of senators would give the Republicans their last best shot for retaking the Senate without major reforms to the party itself. As seen in the 2012 elections, the Republicans cannot win the presidency or control of the Senate without significant gains in their African American and Hispanic voters, which the Republicans have made no significant efforts to address.

    While Levin’s amendments are popular with the Right, particularly with the Tea Party, none of them are likely to happen. The 17th Amendment repeal, for example, only has 16 percent support, according to a Nov. 4-5 HuffPost/YouGov poll. When taken together, they represent the same Tea Party platform that have been pushed for the last three years.

    ALEC Director of International and Federal Relations Karla Jones insists that the proposed model 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. [The] state legislatures have been cut out of that process, unlike what the founders originally intended. So it’s … sort of a compromise measure, where you preserve the positive aspects of the 17th Amendment, while having the state legislatures have the role that the Constitution originally intended.”

    Regardless of the semantics of the explanation, many feel that this proposal from the ALEC is an affront on the democratic process, and regardless if the ALEC Board of Directors approve it or not, it represents a temptation the public must be on guard of preventing what their legislators are falling for.

    “Once you start nominating candidates yourself as a legislature, you’re no longer regulating the process of elections, you are contributing to its substance,” said UC-Davis School of Law Professor Vikram Amar.

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