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June 17, 2014

ZOELLER: Alternatives to Senate primary already a choice

— As Indiana Attorney General, the lawyer for state government, I have been asked questions regarding repealing the Constitution’s 17th Amendment that requires direct election of U.S. Senators by voters. I’ve explained that the process is both difficult and unlikely.

But the 17th Amendment also permits state legislatures to decide their own state’s method for nominating the parties’ Senate candidates — be it by primary election, state party convention or caucus or legislators themselves — as long as voters elect the senator in the general election.

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. But in answer to questions I have pointed out the alternatives that exist, drawing upon my experience as a Senate staff member working for U.S. Senator Dan Quayle in the 1980s and my years as a law school adjunct professor teaching a constitutional law class and studying issues of federalism.

Why does anyone wonder about the 17th Amendment, ratified in 1913 more than a century ago? Discussion about the amendment has percolated in other states. Under the original U.S. Constitution, state legislatures — not voters directly — chose U.S. Senators to represent the interest of states as sovereign entities within the federal government.

The framers of the Constitution intended that senators — who serve statewide for six-year terms — would be more insulated from political pressures than House members elected from districts who are up for re-election every two years. Thus, senators could maintain the ability of states to check the power of the federal government so it would not exceed its limited role and encroach upon the role of states or the liberty of individuals.

The 17th Amendment reassigned the election process from the state legislatures to the voters at large, and though it was a sincere attempt by patriotic Americans to expand the reach of democracy, it unintentionally broke the link between senators and their state governments that their offices were designed to protect.

Critics of the current political system cite the federal government overstepping its bounds and continually eroding state government authority as reason to revisit the 17th Amendment to revitalize the proper role of states as sovereign entities within the federal system. They also note public frustration with Washington, D.C., reflected in record-low approval ratings for Congress and the president and low voter turnout, caused in part by the process of nominating congressional candidates through polarizing primary campaigns fueled by big-money special interests.

This is no criticism of our two current U.S. Senators who serve Indiana honorably.  But voters are plainly disenchanted with the party nomination process that evolved in the 100 years since ratification. 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 FEC — contrasted by the low 24 percent voter turnout in the 2012 primary. Low voter turnout occurred despite a barrage of heavy political advertising expenditures the public has grown to dislike.

Some columnists have used the term “soft repeal” to describe having legislators once again help choose the nominees to run in the general election to serve in the U.S. Senate, considered the “world’s greatest deliberative body.” But the 17th Amendment can remain intact; under it, state legislators already retain the authority to adjust their method for nominating Senate candidates.

State legislators — who are themselves elected by the voters — could serve as the delegates, with Democratic legislators choosing the Democratic nominee for Senate, Republican legislators choosing the Republican nominee and then 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, this would be a potential reform that begins a discussion on restoring the relationship between state legislatures and the U.S. Senate. As attorney general who defends the state in court, and one open to innovative ideas, it’s my job as state’s lawyer to present legal alternatives to my Statehouse colleagues in the legislature as to how they might provide a check on the federal government that the framers of our Constitution envisioned, while preserving the people’s right to elect their senators as the 17th Amendment demands.

— Greg Zoeller is attorney general of Indiana.

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