After some remarks I gave to an Indianapolis group on Feb. 20 about defending Indiana’s laws, an audience member posed a question about the Constitution's 17th Amendment, which requires direct election of U.S. senators by voters. I replied the 17th Amendment also permits state legislatures to decide their state’s method for nominating the parties' Senate candidates – be it by primary election, state party convention or caucus or legislators themselves – with voters electing the senator in the general election.
Ten weeks later, without further inquiry, The Times published a story and two columns that focused on my observation without understanding the point made, so let me reiterate it.
Public frustration with Washington, D.C., reflected in record-low approval ratings for Congress and the president and low voter turnout, is partially caused by the congressional candidate nominating process through polarizing primary campaigns fueled by big-money special interests. Some public frustration could be reduced if our state more closely returned to the original concept the Constitution's authors designed for electing U.S. senators.
This is no criticism of our two current U.S. senators who serve Indiana honorably; it is instead a critique of the current system and the negative impact it has on politics and citizens' perceptions of their government especially when they see the federal government overstepping its bounds.
Under the Constitution, larger-population states receive greater representation in the U.S. House while each state gets two U.S. senators regardless of state size.
Elected from districts having roughly equal populations, House members are closest to the people. To maintain the ability of states to check federal power so it would not abuse the people, the framers intended senators to represent the interests of states as sovereign entities within the federal government.
Senators originally were elected by state legislatures to six-year terms to maintain their accountability to their states and to buffer them against constant political pressures faced by House members. Ratified in 1913 as a reform, the 17th Amendment reassigned the Senate election process from legislators to citizens at large.
While I respect the admirable efforts of Americans of a century ago to expand the reach of democracy, the 17th Amendment unintentionally broke the link between senators and their state government that their offices were designed to protect.
Voters are plainly disenchanted with the party nomination process that evolved in the 100 years since then. Look at the enormous amounts spent in the 2012 Indiana Senate primary election — $7.47 million in combined expenditures by the two Republican candidates and $5.23 million by outside groups, according to the Federal Election Commission — and the low 24 percent voter turnout in the 2012 primary. It's an inverse correlation of money spent to votes cast.
That's why some legislators have asked me whether the 17th Amendment should be repealed. I've explained that repeal is difficult and extremely unlikely. But legislators already retain the authority under the 17th Amendment to decide the system for nominating Senate candidates.
State legislators themselves could serve as delegates, with Democratic legislators choosing the Democratic nominee for Senate, Republican legislators choosing the Republican nominee and voters ultimately deciding between the nominees in the general election. Such a change would involve passing a bill.
The point of making senators answerable to legislators is to increase the likelihood both parties' nominees would be qualified, in touch with Hoosiers' problems and would understand their roles protecting the sovereignty of states. Though no panacea, it is a step in the direction of our original system of federalism.
Although this topic involves a different branch and level of government and does not fall under the direct jurisdiction of the attorney general's office to implement, I have offered this in answer to such questions, drawing upon my experience working for U.S. Sen. Dan Quayle and my years as a law school adjunct professor teaching constitutional law and studying issues of federalism.
To say that I yearn for the "good old days" and am a "zealot" would only be factual in relation to my job upholding the sovereignty of state government, but that comes from my years defending our state against the ever-growing power of the federal government.
As attorney general and a public servant open to innovative ideas, I have offered these observations to my Statehouse colleagues in the Legislature as to how they might provide a check on the federal government, while preserving the people's right to elect their senators as the 17th Amendment demands.