934 ARIZONA LAW REVIEW [Vol. 31
legislatures.172 For example, the deadlocks in the state legislatures, which were the root of the problems, may have been eliminated completely by altering the federal laws regulating state selection of senators. Simply by allowing a plurality vote in the state legislature to select a senator, rather than requiring a majority, would have eliminated virtually all deadlocks.173
A corollary can be drawn from the state judicial experiences during the same time period that were also affected by the idea that the popular election method would cure the political problems found in the state judiciary. Many state judicial offices that were formerly appointed became subject to popular election.174 After the popular election method had been implemented, however, it was observed that the results were sufficiently deplorable "to make the judicious grieve."175 Because of the failure of the popular election method in the state judiciary, most of the states eventually reverted back to the appointment method.176
A return to legislative selection of senators, however, may be impossible as the popular election method appears set in constitutional concrete.177 This suggests that the presence of procedural problems in the original process may have been a valid reason to implement change. In making that change, however, other methods should have been considered to preserve the balance of power between the states and the federal government.178 Moreover, it would have been more appropriate to just fix the procedural problems.
In 1913, however, the states could hardly have foreseen that the passage of the sixteenth and seventeenth amendments would affect the balance of power in the federal political process.179 Several observations support this assertion. First, there was a presumption that the states' influence would continue with the popular election of senators.180 Second, federal expenditures in 1913 were far less than the total of state and local expenditures combined. Even by 1929, federal expenditures were still less than one third of the total state and local expenditures combined and did not exceed this total until about 1939.181 Currently, however, federal expenditures are more than twice the total of state and local expenditures combined182 and the debt of the federal government is over three times the total debt of the state and
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172. Id. at 86. "[E]xperience in recent years has proved that in practice the election of Senators by direct vote of the people yields some results which are far from ideal." Id.
173. ELECTION, supra note 169, at 240-43.
174. Id. at 100.
175. Id. at 216.
176. AMERICAN JUDICATURE SOCIETY, JUDICIAL MERIT SELECTION: current status July 1985.
177. This was observed as a potential problem. ELECTION, supra note 169, at 246-58.
178. SENATE, supra note 162, at 86; election, supra note 169, at 225, 229-31, 242-43.
179. SENATE, supra note 162, at 108.
180. The purpose of the Senate was to provide representation in Congress for the states. THE FEDERALIST NO. 62, at 182 (J. Madison) (R. Fairfield ed. 2d ed. 1966). Under the popular election method, senators were supposed to be just as representative of the states as when appointed by the legislature. SENATE, supra note 162, at 108. Moreover, "no State ... [was to] be deprived of its equal Suffrage in the Senate." U.S. CONST. ART V. The seventeenth amendment did not expressly rebut the presumption. Irrespective of the assumptions, the popular election of senators altered the influence of the states in the federal political process to that of a lobbyist. Garcia, 469 U.S. at 554.
181. FISCAL FEDERALISM, supra note 49, at 2.
182. Id. In 1987, federal expenditures were over $1 trillion and were approximately 24% of the
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