Repealing the 17th Amendment is a Bad Idea

Note: A version of this post originally ran as an Indianapolis Business Journal Forefront column. Generally, I refrained from posting columns of mine published in Forefront, but I particularly like this one and wanted to share.

In 1854, the Indiana Democratic Party was led by a man named Jesse Bright, a man described as “hateful and extraordinarily ambitious.” He rose to power as a bully and apparently remained one thereafter. His pugnaciousness was no small part of the series of events that led to a two year period in which Indiana had only one U.S. Senator instead of the customary two. At the time, the General Assembly was responsible for choosing U.S. Senators. However, in 1854, a backlash rose against passage of the Kansas-Nebraska Act, an act that permitted slavery in states north of the Mason-Dixon line. Bright, himself a slave owner with holdings in Kentucky, pushed a state party platform that endorsed the Act. This was not popular with all Democrats, but Bright and his machinery punished those who opposed it, driving a wedge in the state Democratic party and giving rise to a confederation of former Whigs, Free Soilers, Know-Nothings, and dissident Democrats who joined into a fusion movement that swept the elections that year. They took control of the House of Representatives, but the Democrats narrowly hung on to the state Senate.

The first order of business for the new General Assembly was selecting a United States Senator. However, rather than permitting the choice of a Fusionist, the Democrats refused to caucus. As a consequence, from 1855-1857, Jesse Bright was Indiana’s lone Senator. In 1862, the United States Senate would go on to expel him from the Senate for acknowledging Jefferson Davis as President of the Confederate States of America and for facilitating the sale of arms to the Confederacy.

Dysfunction and machine politics were not unique to the Indiana Senate selection process. In 1906, Hoosier native and DePauw graduate, David Graham Phillips wrote a series of articles entitled “The Treason of the Senate” which played no small part in the eventual passage of the Seventeenth Amendment providing for the direct election, as opposed to legislative selection, of United States Senators. As the industrial might of the country grew in the post-Civil War era, those with major business interests came to understand that they could best exert their influence on the U.S. Senate by offering financial incentives to the state legislators who selected its members. Phillips documented some of these abuses, for example the close alignment between the Rockefellers and the political machine of Rhode Island’s Nelson Aldrich. Rhode Island’s legislature and, therefore, its two Senate seats could be had at very little expense.

Following popular anger at the dysfunction and abuse of the legislative selection system, the United States passed the Seventeenth Amendment, removing the selection process from frequently corruptible legislatures and providing for direct election of our Senators.

Now, however, Indiana officials, including state senator James Smith (R-Charlestown) and Indiana’s Attorney General, Gregory Zoeller have advocated repealing the Seventeenth Amendment. Earlier this year, Smith introduced legislation proposing to take the legally dubious step of rescinding Indiana’s ratification of that Amendment. Zoeller recently expressed his distaste for popular election of Senators at a meeting of the Federalist Society. The old way, he contends, was better because it made Senators instruments of the State rather than instruments of the people, thereby enhancing our federalist form of government with the States themselves being represented in Congress.

My high school history teacher told us that “today’s reforms are tomorrow’s corruption.” And our current U.S. Senate certainly is not a model organization. However, trading in today’s abuses for yesterday’s corruption is not the way to go about reform. If the state legislatures are at odds with the popular will, the solution is not to neuter the will of the People. More likely the solution is to change the composition of the legislature.

Rep. Stutzman and the Farm Bill

Derek Pillie, writing at Hoosier Access (a conservative blog on Indiana politics for those who are unfamiliar), has an entry on Rep. Marlin Stutzman’s activity with respect to the federal Farm Bill. The blog post cites an article by Gary Truitt in Hoosier Agriculture.

Two main parts of the Farm Bill typically get a lot of attention: the food stamp program and the subsidies and payments to farmers and agricultural interests. Pillie has an interesting construct in describing an amendment proposed by Stutzman. “Yesterday he filed amendments with the House Rules Committee that would split off entitlement programs from the agriculture programs.”

I presume “entitlement” programs are those with money for Them while “agriculture” programs are those with money for Us. Stutzman is certainly one of the “Us,” having received about $200,000 in farm welfare assistance for his own agricultural interests. Farmers are hard working and good whereas food stamp recipients are lazy and bad. That’s the economic morality play narrative that underlies the politics of this thing anyway. In my mind, the distinction between government money given to agricultural interests and government money given to feed people is tenuous and largely artificial. If you want to insist that non-farmers earn their own way or starve, then you probably ought to insist that agricultural interests profit or perish.

As I understand the conjoined history of the farm subsidies and food stamp program, it was a fairly simple proposition at first. We have farmers who can’t make money, and we have hungry people who need food. Lets give farmers money for their food and give food to hungry people. Divide that house, and both sides will probably fall. And, if you’re a small government purist, that’s probably a good thing. Otherwise, it probably looks like a recipe for unnecessary suffering all around.

But Everyone Else Was Doing It!

As a parent, I expect to deal with the “but everyone else was doing it” defense. As a citizen of Indiana, I’m not sure that’s what I expect out of my Secretary of State.

Charlie White’s accusations against Evan Bayh remind me a little bit of the old joke where the motorist gets pulled over and protests to the officer, “I wasn’t speeding. But, I passed a few guys who were.” If I’m reading the news reports correctly, White is essentially saying, “these charges against me are bullshit, but Evan Bayh should be prosecuted for the same thing.”

This is probably one of those deals where you need to pick one strategy or another. Either say that the charges are frivolous or that everyone similarly situated should go down with you. Saying that frivolous charges should be made against everyone just doesn’t work so well.

Speaking of Green Space

StAllio! posts on Indianapolis Mayor Ballard’s proposal to sell off the city’s “pocket parks.” Apparently Ballard has hired a firm to analyze potential sales where the firm doesn’t get paid unless some of the parks are sold. As stAllio! points out, far from being a good deal for the city, this creates an enormous incentive for the firm to try to get as many of the parks sold as possible and, accordingly, renders suspect any analysis from the firm.

Pence Against Fairness

(H/t Muncie Free Press) Rep. Mike Pence (IN-06) has introduced H.R. 2905 which seeks to prohibit imposition of the Fairness Doctrine by the FCC. Specifically it prohibits the Commission from prescribing a rule requiring “that broadcasters present opposing viewpoints on controversial issues of public importance.” Pence is calling it the “Broadcaster Freedom Act,” but it should probably be called the “Rightwing Radio Protection Act.”

(Unrelated side note – I went to the Google and searched for IN-06 Pence – and a Barry Welsh diary on Kos showed up. Apparently Pence’s brother ran those sad Tobacco Road convenience stores before they filed bankruptcy and getting appointed by Gov. Daniels to a position in IDEM.)

Local Government: Budgetary Whipping Boy

I ran across a couple of items that, in juxtaposition, highlighted the difficulties of local government officials nicely.

Justice & Fortitude has a post that suggests runaway local government spending as the cause of our property tax woes:

“If we don’t do something about local government, putting caps on property taxes will be like slapping a Band-Aid on a more serious wound–or rearranging deck chairs on the Titanic.”

(There is additional language in the post speaking of the need to engage repeal property taxes entirely to prevent the “enslavement” of Hoosiers through property taxes.)

Meanwhile, back at the ranch, the Indiana Court of Appeals rejected a claim by local government that the State ought to have to pay for detention expenses of the juvenile offenders sentenced by State judges. The General Assembly has since taken action to relieve local government of those expenses. But, as a general proposition, it isn’t really appropriate to criticize those expenditures of local government where local government is simply mandated to pay the bill without being given control of the amount of the expenditure.

The Governor, in particular, has let loose a drum beat of rhetoric criticizing local government officials for out of control spending without acknowledging the significant role played by the State in the matter or the fact that he “balanced” the State’s budget on the backs of local government.

Grumblings about the DLGF

(H/t Indiana Law Blog) Karen Francisco, writing for the Fort Wayne Journal Gazette, has a good column about some of the strife between local governments and the Department of Local Government Finance. The DLGF used to be viewed as a partner to local government. Now it has taken on a confrontational tone that is exacerbated by the seemingly constant flux of Indiana’s tax system as well as delays and contradictory information that seems to come out of the DLGF.

Not in the column, but worth mentioning is the Governor’s drumbeat of blame for local government when he was pushing his tax restructuring plan last year. That certainly couldn’t have helped relations between local government officials and the Daniels administration.

Supreme Court to Consider Robocall Statute

Lesley Stedman Weidenbener reports that the Indiana Supreme Court will consider the robo-call statute. At issue is whether the ban on robocalls should apply to political messages.

I’ve actually written quite a bit about this issue as it turns out. With respect to the decision on appeal, I posted this back in February:

I haven’t read the judge’s opinion, but as described, I don’t think it holds water. The statute does a few things — it specifies types of messages to which the statute does not apply — e.g. messages from schools to students or parents. Significantly, political messages are not in this list of exempt messages. Secondly, it defines commercial telephone solicitations and imposes restrictions on commercial telephone solicitations above and beyond the restrictions it places on solicitations via robocall generally. There is nothing in the text of the law itself that strongly suggests an allowance for robocalls to be used to spread political messages. There are at least two provisions that suggest that the regulation extends beyond commercial messages. So, unless there is something a bit more nuanced than reported about the judge’s decision, I’m going to predict this one gets overturned on appeal.

The State Republican and Democratic Parties are urging an interpretation that allows the automated phone calls. The Attorney General is trying to make sure a live person is involved when any of these calls are made to citizens. A recorded message is actually permitted under the statute, but it must be preceded by a live phone call and agreement by the recipient to receive the recorded message. (Or a recipient must have previously “opted-in” to receive such phone calls.)

Microvote sanctioned for 2006 violations

Niki Kelly, writing for the Fort Wayne Journal Gazette, reports that Microvote will be sanctioned for failing to provide certified software on its voting machines. As I read the article, with a lot of the sanction suspended, the upshot of Microvote’s punishment is that it won’t be able to sell or lease its machines through 2009 to new buyers in Indiana. It will still be able to market the machines, and there are no elections in 2009.

The Indianapolis-based company was cited for providing 47 counties with electronic voting machines that did not meet all certification requirements at the time of the 2006 primary election.

I’m Shocked, Shocked to Find Gambling in Indiana

Rick: How can you close me up? On what grounds?
Captain Renault: I’m shocked, shocked to find that gambling is going on in here!
[a croupier hands Renault a pile of money]
Croupier: Your winnings, sir.
Captain Renault: [sotto voce] Oh, thank you very much.
[aloud]
Captain Renault: Everybody out at once!

—Casablanca (1942)

Indiana – 2008: The Associated Press has a story on how the promised crackdown on illegal gambling has fallen well short of expectations. Some lawmakers promised thousands of slot machines and poker machines would be seized. Meanwhile, lawmakers authorized 4,000 new machines at Indiana’s horse tracks. So, it looks like we have a substantial increase in gambling.

I don’t have strong feelings either way. I don’t have any moral opposition to gambling, but I don’t have a strong desire to have gambling facilities in close proximity. I think we really need to figure out a rational system for gambling in the state. This patchwork of grudging expansions while pretending to oppose the practice is silly.