Don't tamper with constitution on senate choice

A simple apology would have sufficed. Instead, Sen. Russ Feingold has decided to follow his McCain-Feingold evisceration of the First Amendment with Feingold-McCain, more vandalism against the Constitution.

The Wisconsin Democrat, steeped in his state's progressive tradition, says he is reluctant to tamper with the document, but tamper he must because the threat to the public weal is immense: Some governors have recently behaved badly in appointing people to fill U.S. Senate vacancies. Feingold's solution, which John McCain is co-sponsoring, is to amend the 17th Amendment. It would be better to repeal it. The Framers established election of senators by state legislators, under which system the nation thrived. In 1913, progressives, wanting more direct, democracy, got the 17th Amendment ratified. It stipulates popular election of senators, under which Wisconsin has elected, among others, Joe McCarthy, as well as Feingold. The 17th Amendment says that when Senate vacancies occur, "the executive authority" of the affected state "shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct." Feingold's amendment says: "No person shall be a Senator from a State unless such person has been elected by the people thereof. When vacancies happen in the representation of any State in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies." Feingold says mandating election of replacement senators is necessary to make the Senate as "responsive to the people as possible." Well. The House, directly elected with two-year terms, was designed for responsiveness. The Senate, indirectly elected with six-year terms, was to be more deliberative than responsive. Furthermore, grounding the Senate in state legislatures served the structure of federalism. Giving the states an important role in determining the composition of the federal government gave the states power. Severing senators from state legislatures made them more susceptible to influence by nationally organized interest groups. The Framers gave the three political components of the federal government (the House, Senate and presidency) different electors (the people, the state legislatures and the Electoral College) to reinforce the principle of separation of powers.

Liberals often treat federalism as an annoying impediment to their drive for uniformity. Feingold wants to impose Wisconsin's preference on the other 46 states. Yes, he acknowledges, they could each choose to pass laws, but doing this "state by state would be a long and difficult process." Pluralism is so tediously time-consuming. Irony alert: Feingold's amendment will owe traction to Senate Democrats' opposition to an election to choose a replacement for Barack Obama. That opposition led to the ongoing Blagojevich-Burris fiasco. By restricting the financing of political advocacy, the McCain-Feingold speech-rationing law empowers the government to regulate the quantity, timing and content of political speech. Thanks to Feingold, McCain and others, the First Amendment now, in effect, reads: "Congress shall make no law ... abridging the freedom of speech unless it really, really wants to in order to guarantee that there will be only as much speech about the government as the government considers appropriate, and at times the government approves." Now Feingold proposes to violate federalism and nudge the Senate still further away from the nature and function the Framers favored. He is, as the saying goes, an unapologetic progressive, but one with more and more for which to apologize.

© 2009, Washington Post Writers Group