Political Animal


April 02, 2013 11:33 AM State’s Rights Craziness Without the Constitutional Amendments

By Ed Kilgore

Many of you are probably aware that one of the wingnut ideas that has accompanied the rise of the Tea Party Movement was repealing the 17th amendment and letting state legislators—not those idiot looters and takers—choose U.S. Senators again. Hard to say if this highly modern proposal was more or less popular in Tea circles than, say, the attribution of all zoning ordinances to a U.N. conspiracy to rob us (or more immediately, strip mall developers) of our priceless heritage of freedom. But it was definitely out there being seriously discussed.

Trouble is, of course, that enacting or repealing constitutional amendments is a pretty heavy lift. So those fine champions of constitutional conservatism, the Republican Caucus of the Tennessee legislature, has identified and is apparently looking at actually enacting a step just short of that: giving themselves the power to control Senate party nominations. At National Journal, Charlie Cook is in awe:

Tennessee state Sen. Frank Nicely, a Republican from Strawberry Plains, has introduced S.B. 471, which would, beginning in 2016, eliminate party primaries for the U.S. Senate in Tennessee. Members of the state Legislature would instead select the nominees. Republican House and Senate caucuses would pick the GOP nominee, and their Democratic counterparts would select their candidate. State Rep. Harry Brooks, R-Knoxville, has also introduced the bill in the Tennessee General Assembly.
My first reaction was to be dismissive. In Washington, as in state legislatures around the country, we often see goofy bills and resolutions introduced, but most thankfully die without any action being taken. But what really got my attention was the news that the Tennessee Senate’s State and Local Government Committee voted 7-1 last week to advance the bill. And, no, this isn’t an April Fool’s joke.
My second reaction was, why stop there? Why not just repeal the 17th Amendment to the Constitution and go back to the way things were before 1913 when voters had no say at all, and state legislatures elected U.S. senators? The 17th Amendment calls for the popular election of U.S. senators but is silent on nominations; indeed, the Constitution is silent on the whole issue of political parties
As a result, states pretty much have a free hand in determining how nominees are selected.

Cook goes on to note party nomination practices in Utah and Virginia that are not exactly exemplars of democracy, either. But this one clearly takes the cake.

State Democratic Chairman Roy Herron was quoted by columnist Tom Humphrey in Knoxnews.com as saying that Nicely’s proposal would “turn back the clock a century or two.” Humphrey quoted state GOP Chairman Chris Devaney as saying, “You can always count on Senator Nicely to come up with innovative proposals conservatives can be proud of. This is another step in that direction, and I certainly think it is an interesting idea.”
That’s an interesting choice of words.
Another one of Nicely’s interesting ideas was to be one of four Republican state legislators in Tennessee to sign onto a 2009 lawsuit challenging President Obama to release his birth certificate. Another was his opposition to an effort to make cockfighting a felony. Also interesting, Nicely was deemed “hostile to business” by the Knoxville Chamber of Commerce, something rather odd for a Republican lawmaker.
Hopefully cooler heads will prevail. This only came to my attention when a prominent Republican in the state whom I have known for years brought it up with me, hoping that national attention might help kill a profoundly bad idea. Let’s hope this column will help.

Don’t count on it, Charlie. These birds glory in the opportunity to shock people like you.

Ed Kilgore is a contributing writer to the Washington Monthly. He is managing editor for The Democratic Strategist and a senior fellow at the Progressive Policy Institute. Find him on Twitter: @ed_kilgore.


  • skeptonomist on April 02, 2013 12:00 PM:

    I have not looked up the state-by-state history, but I'm sure that party nominations by primary are generally much more recent than the 17th amendment, or anything that happened in 1813. Aren't Presidential nominations still done by caucus in some states or am I imagining things? Don't know about Senatorial nominations.

    Would nomination by state legislatures lead to more or less wing-nuttier Republican candidates than nomination by voters? I suspect that many legislators are only putting on an act and are not really as crazy as the Republican majority and would be more moderate on some social issues, but a greater influence of big donors is one predictable result.

  • Josef K on April 02, 2013 12:04 PM:

    Trouble is, of course, that enacting or repealing constitutional amendments is a pretty heavy lift.

    Perhaps a couple Saturday morning info-mercial-cartoons would help remind people of this. Their knowledge of basic civics seems a bit lacking in that regard.

  • c u n d gulag on April 02, 2013 12:06 PM:

    Soon, some Republican politician will come into his state's legislature with a stone tablet, and say that Jesus personally engraved it with the name of the candidate of HIS own personal choice, and blessedly gave it to the politician to share with his colleague's!
    And look - IT'S HIM!!!

    There must a lot of low-hanging fruit on those "Crazy" trees down South.
    Either that, or they started smoking the Kudzu.

  • NCSteve on April 02, 2013 12:23 PM:

    Thing is, Charlie Cook is kind of the poster boy for DC CW-dispensing insider blindness to the radicalization of the Republican Party and the implications of that radicalization for the party's long-term viability.

  • biggerbox on April 02, 2013 12:24 PM:

    Are we absolutely sure State Senator Nicely isn't a Mark Twain character? He sure sounds like one.

  • 3TNJoe on April 02, 2013 12:46 PM:

    Is this an ALEC initiative? I assumed it was when I first heard of this yesterday. There is no end to teh crazy that's been let loose down here.

  • martin on April 02, 2013 1:05 PM:

    As I have long been in favor of getting State government out of the primary business (let the parties put them on and pay for them), this has a certain charm.

    What would happen if the Dems decided to have a primary to pick the person the Caucuses would nominate? Would this bill prevent anything other than the government funding the primary? If only one party is paying for a primary, I imagine it would be a financial disadvantage, but it could be worked around. And since "they paid for this microphone," they can limit it to registered Dems. The Tea Partiers would probably be pissed at being excluded from voting. Fun time for all.

  • emjayay on April 02, 2013 1:36 PM:

    Maybe someone can explain why this kind of thing is a popular idea among tea partiers? I thought they were all about all the little people having a voice, or at least be able to shout politicians and liberals down at town meetings. Or could it be that they really conform to the Lakoff type division of people, and that authoritarian types like, well, order and authority? Better a king with absolute power or a dictator than a president. And money equals power, and some people are more equal than other people, so better that we have an old time hereditary wealthy landowner House of Lords?

    By the way, this stuff was argued at the original Consitutional Convention. Should for example the President be appointed by the legislature or by popular vote? The Electoral College was a compromise, which of course is now an awkward anachronism that skews presidential campaigns all over the place. If there is a reform needed in election structures, getting rid of it is the obvious one.

  • low-tech cyclist on April 02, 2013 2:32 PM:

    Exactly how can a state legislature tell a private organization, which is what a political party is, how it can choose its nominees?

    The most the state can do is say, "we're not going to run your primaries anymore." The parties can each choose how they'd respond.

  • MuddyLee on April 02, 2013 2:55 PM:

    I have never seen a "crazy tree" in the South, but it seems to me that more and more crazy conservative retirees are relocating to the South, primarily because of lower taxes and almost no snow in the winter. The states without state income taxes (like Tennessee and Florida), are probably attracting more than their share of these folks compared to the Carolinas. But - they do tend to vote in favor of Sunday alcohol sales - that's a plus. A relatively wealthy conservative is much more dangerous than a low income conservative - they can afford to give money to conservative causes.

  • Epicurus on April 02, 2013 4:55 PM:

    A "free hand"? Indeed...from Article One, Section 4: "Section. 4.:
    The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing [sic] Senators." Seems pretty clear to me...(later amended re the "chusing" of Senators, of course.)

  • Brock Sides on April 02, 2013 4:57 PM:

    Considering the yahoo who won the Democratic US Senate nomination for TN in 2012, apparently thanks to having top position on the alphabetically-ordered ballot, I'm totally in favor with having the state legislative caucuses pick the nominees. (I am a TN resident.)


  • Notabadidea on April 02, 2013 6:32 PM:

    It is easy to forget we are NOT a democracy. Democracies are messy affairs which eventually fall in warring factions (such as political parties), we are a Republic, a willing collaboration between political entities (the States amongst each other, and the People). We have heard time and again the issues of State's rights, those rights enshrined in the 9th(from which roe v wade originates) and the 10th Amendments. Currently the States, which created the Federal Government, has no..I repeat, NO representation within the very government created by them. This, in my opinion, is wrong. If the States had proper representation there would not be the constant issue of State's Rights raising it head, nor would many of the laws the States are challenging as violating the 10th Amendment have been enacted in the first place. The Constitution was originally set up the way it was for very good reasons, during the Progressive Era of the early 20th century we disregarded them. The People were to have representation in two (2) places, the House of Representatives, and the Presidency. The States were to be represented in the Senate. This separation, between the branches of government, and between the political entities of government (States, People) prevented the Federal Government from causing warm to itself and to the entities from which it derives its powers. Laws passed were to have the support of the People, and the support of the various States so as to have validity throughout all levels of the Republic. I am one of those "wing-nuts" this author, in his arrogance and ignorance derides...I strongly believe we should have the States being represented in the Federal government once again. Tennessee has seen a way to do that (Arizona has talked about this very thing for several years) short of revoking the 17th Amendment. Nothing in the 17th, nor in the Constitution prevents Tennessee's legislature from selecting the candidates which the people will then vote on. With 50 "sovereign" States this State, and others, can experiment on different ways of achieving the same things, i.e., a representative Republic.

  • David Carlton on April 03, 2013 7:47 PM:

    Just an update; that bill has now been pulled from the House agenda. Apparently Bob Corker expressed "concerns" to the Speaker, and she obligingly asked its sponsor to withdraw it. At least one of the bill's supporters {Lt. Gov. Ron Ramsey] had been defeated by Corker in 2006, and street rumor has it that Corker was the target, presumably for RINOism [Actually, he's pretty moderate by comparison with this crowd].