Reinventing Federalism

Article excerpt

At a hearing in Seattle on a constitutional challenge to Washington state's limit on the terms of members of Congress, U.S. District Court Judge William L. Dwyer came up with a new idea that could help revive American federalism. Exploring the extent to which states can place restrictions on the qualifications of members of Congress, he asked lawyers on both sides if it would be constitutional for states to impose a requirement of six years of service in a state legislature before a candidate could run for federal office.

What a great idea!

State legislatures across the nation should immediately initiate state constitutional amendments requiring six years of state legislative service for anyone who runs for the U.S. House of Representatives, Senate or president. This step would simultaneously repair the damage done to the federal system 80 years ago when the 17th Amendment to the U.S. Constitution established the direct election of senators and patch one of the biggest holes in the argument in favor of congressional term limits.

In the Founding Fathers' original concept of federalism, senators directly represented not just the states but state government. Article I, Section 3 of the Constitution stated: "The Senate of the United States shall be composed of two senators from each State, chosen by the legislature thereof, for a term of six Years."

State legislatures chose U.S. senators until the early part of this century. This method produced such legendary senators as Daniel Webster, Stephen Douglas and Robert LaFollette.

Admittedly, the system of electing senators by the state legislatures had problems. Frequent and prolonged deadlocks between the two houses in state legislatures often left states unrepresented in the Senate, and there were frequent charges of corruption in the selection process. By the 1890s, under pressure from the Populists, many states, especially those under one-party control, had adopted direct primaries for Senate races to advise legislative party caucuses on the choice of U.S. senators.

Finally, in 1913 the 17th Amendment providing for direct election of senators was approved. Although this is undoubtedly a popular provision today, it eliminated the direct representation of state government in Washington and weakened the federal system. Many U.S. senators have little or no experience in state government, and the electoral incentive to curry popular voter favor often results in legislation that is inimical to state government and federalism.

In fits of frustration over Congress' transgressions against federalism, I have often thought that states should begin a campaign to repeal the 17th Amendment. But Judge Dwyer has come up with a more subtle notion.

While maintaining the people's right of direct election, the Dwyer provision would accomplish indirectly the same goal as state legislative election of U. …