'For the People Act' proclaims democracy, but usurps democratic choices

'For the People Act' proclaims democracy, but usurps democratic choices
© Getty Images

Writing in the Wall Street Journal last September, Sen. Ben SasseBen SasseSasse calls China's Xi a 'coward' after Apple Daily arrest Defunct newspaper's senior editor arrested in Hong Kong Murkowski: Trump has 'threatened to do a lot' to those who stand up to him MORE (R-Neb.) suggested repeal of the 17th Amendment as one of several measures that would “make the Senate great again.”  Thanks to House passage of H.R.1, the For the People Act, Sasse’s 50 democratic colleagues have an opportunity to prove him wrong. They can do so by voting against the federal takeover of elections and in defense of their states’ authority to run their own elections.     

The 17th Amendment provides for the popular election of United States senators. Prior to its ratification in 1913, senators were chosen by the legislatures of the states they represent. In their votes on H.R.1, senators will reveal whether they still represent their states, or if they now represent only the political party with which they are affiliated.

Although the pre-17th Amendment state legislative appointment of senators strikes most present-day Americans as undemocratic, making Sasse’s proposed repeal highly unlikely, it was thought by most of the Framers of the Constitution to be essential to an effective bicameral Congress and to the preservation of the states’ independence in a truly federal system. Popular election of senators had its proponents in the Constitutional Convention, but the prevailing view was that popular election would yield little distinction between the House and the Senate, making neither a check on the other.  

ADVERTISEMENT

As Alexander Hamilton wrote in Federalist 27, a Senate appointed by state legislatures “will generally be composed with peculiar care … [of individuals with] greater knowledge and more extensive information in the national councils … and will be less apt to be tainted by the spirit of faction.” In Federalist 62, after recognizing that the Senate is “a constitutional recognition of the portion of sovereignty remaining in the individual States,” James Madison observed “[a]nother advantage accruing from this ingredient in the constitution of the Senate is the additional impediment it must prove against improper acts of legislation.” 

If the states are to maintain any semblance of autonomy, if they are to retain control over their most fundamental responsibility in a democracy, H.R.1 is an improper act of legislation. For over 230 years, the states have had primary responsibility for establishing election rules and the conduct of elections. If approved by the Senate and signed by President BidenJoe BidenRealClearPolitics reporter says Freedom Caucus shows how much GOP changed under Trump Iowa governor suggests immigrants partially to blame for rising COVID-19 cases Biden officials pledge to confront cybersecurity challenges head-on MORE, H.R.1 would usurp that responsibility by mandating automatic voter registration, restoring voting rights to people who have fulfilled felony sentences, reversing state voter ID laws, mandating same-day voter registration and at least 15 days of early voting, placing limits on the purge of voter rolls, mandating independent redistricting commissions, requiring provision for vote-by-mail in federal elections and more. 

All of this would be done in the name of democracy, while usurping the democratic choices of the states and further eroding our federal system. 

If enacted, the For the People Act sure will face court challenges on constitutional grounds. But it should not have to come to that. If senators are in any respect representatives of their states, they will vote against this federal arrogation of the core state authority to conduct elections.  State election officials possess expertise and integrity, as witnessed in the 2020 elections. More importantly, nothing could be more critical to our state and local democracies than regulating and conducting elections.

It seems that six years in the U.S. Senate have led Sen. Sasse to conclude that his fellow senators more often represent their political parties than their home states. Fifty democratic votes in the Senate for a federal takeover of elections would confirm that he is right.    

James L. Huffman is a professor of law and the former dean of Lewis & Clark Law School in Portland, Ore. He was the Republican nominee in the 2010 U.S. Senate election in Oregon. Follow him on Twitter @JamesHu41086899.