By Michael Bryan
Confronted with his professed preference that U.S. Senators be selected by state legislators rather than elected by the voters, and the resulting coverage (here, here, here, here, here, right here), Jeff Flake issued a clarification:
“I should just mention, on the 17th Amendment, I think it’s better as it reinforces the notion of federalism to have senators appointed by state legislatures. Having said that, I’m under no illusion that you’ll ever go back because you have 100 senators who have been elected who would worry that they wouldn’t be appointed, and so I think we’ve probably crossed that Rubicon.”
Interesting choice of language by Flake: 'crossing the Rubicon'. The expression comes from Julius Caear's choice to cross over the Rubicon river with his army, and march on Rome, effectively ending the republican era of the Roman Empire. The phrase can generically mean passing a point of no return, and that may be all Flake meant by use of the phrase.
But the term tends to carry a particular inflection when used in a political context: a change in political culture toward tyranny. For instance, a recent short-lived television series about a secret plot to overthrow the American government by key figures in the 'military-industrial complex' was titled 'Rubicon' for this reason.
So one has to wonder: does Jeff Flake harbor a belief that the direct election of Senators was a step away from freedom, and toward tyranny? Did his belief that direct election of Senators undermined the principle of federalism color his choice of idiom? Does he believe that the reduction of the primacy of state legislatures in our national politics reduced Americans' freedom or has taken America toward tyranny? If that is Flake's belief, that would be an interesting and important thing to know: he would be running for an office he believes tyranically undermines Americans' freedom.
Another interesting wrinkle was shrewdly pointed out in a comment here on this blog by RCubed's Ted Prezelski:
"I find it odd that no one so far, either on this blog or anywhere else, has brought up the fact that the direct election of U.S. Senators is provided for in Arizona's Constitution...
"Article 7, Section 9: 9. Advisory vote
For the purpose of obtaining an advisory vote of the people, the legislature shall provide for placing the names of candidates for United States senator on the official ballot at the general election next preceding the election of a United States senator."
The next section places this "advisory vote" clearly in the realm of the system of partisan elections:
"Section 10. The Legislature shall enact a direct primary election law, which shall provide for the nomination of candidates for all elective State, county, and city offices, including candidates for United States Senator and for Representative in Congress. Any person who is registered as no party preference or independent as the party preference or who is registered with a political party that is not qualified for representation on the ballot may vote in the primary election of any one of the political parties that is qualified for the ballot."
This is easily forgotten because the "advisory vote" was only invoked once, in 1912 when Henry Fountain Ashurst and Marcus A. Smith were elected after a highly contested primary and general election with the admission of Arizona as a state. The legislature, as expected and intended, simply ratified the results of the advisory election unanimously and without debate. By the time of the next regularly scheduled election, the 17th Amendment was in place.
This is all a long way of saying that what Flake is calling for is not only unprecedented in this state, but also not in keeping with the intent of the framers of Arizona's Constitution."
Count on Ted to know his Arizona history well enough to point out this one-off event prior to the ratification of the federal amendment. Ted correctly points out that in order for Arizona's legislature to choose it's Senators once again, we would also have to contravene the original intent of Arizona Constitution.
Thus, Flake seems to be advocating against not only a century-old amendment of the U.S. Federal Constitution, but also against a century-old original provision of the Arizona Constitution. Talk about nostalgia! Flake seems to think that the Arizona Constitution was a mistake.
Flake's new motto could be "Vote Flake: Because Arizona's Been Wrong for a Century."