Moving to an appointed second chamber?

US Capitol

Successive UK governments have brought forward proposals for the second chamber to be elected.  There is also pressure in Canada for the appointed Senate to be elected.  However, it is notable that there are some American commentators arguing that the USA should move in the opposite direction.  Members of the US Senate were originally appointed by state legislatures.  It was only a century ago that the position changed, with the 17th Amendment providing for direct election.  There are now calls for the amendment to be repealed. 

There is certainly a case for some change in the USA.  Present events demonstrate the problems associated with a fragmented system, which militates against, rather than enhances, core accountability to electors.  The chances of fundamental reform, though, are essentially non-existent.  The culture could not accommodate a change from the present dispersed system.  A repeal of the 17th Amendment would, though, be interesting and certainly revert to the intention of the Founding Fathers.  Somehow, though, I cannot see the Senate supporting such a move!


About Lord Norton

Professor of Government at Hull University, and Member of the House of Lords
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8 Responses to Moving to an appointed second chamber?

  1. Alice Stretch says:

    Surely the fact that the US is leaning more towards our system strengthens the argument for us having an unelected second chamber? Even though at the moment the House of Lords isn’t strictly defined in numbers and the way in which Lords are appointed etc. it still works and manages to fulfil the requirements of scrutinising and legislating. As it is composed of professionals in their fields as well as politicians, it has its own independence- not tied down to whips or, necessarily, party loyalists. I honestly think an elected chamber, as proved by the US wanting to revoke the amendment, would be a detriment to parliament and, ultimately, to the public. What is your view on this? (both in the US and here)

    • Lord Norton says:

      Alice Stretch: Absolutely. In any event, the UK is not a federal system, so the case for an elected second chamber is much weaker than in the USA. At least in the States citizens get to vote in separate capacities for members of the House and Senate. In the UK, they would be voting for members of two Houses in the same capacity, which serves no obvious purpose. The present second chamber adds value and does not replicate the elected chamber nor conflict with it: it fulfls a complementary role, which would likely be lost in the event of election.

  2. Frank W. Summers III says:

    Lord Norton,
    With constitutional change here there are varied levels of probabilityand so much of this is that sort which only becomes relevant when it is really critical. In that way it resembles your system perhaps. However, in a wriiten and recorded revolutionary minimalist system there are differences. If three-fourths of the State Legislatures have a simple majority for something they are almost all-powerful in short. That is practically true only if they have the passion to assert that position: means include regular Ammendment, Conventions, Sovereign Dissolution and Dissolution into a State of Nature — these are all options not discussed much in Law Schools but in every legislature they know the options are there. Clearly, the US Senate is vastly superior in position to co-opt such a movement. But that is different than thinking it could defy such a movement. With or without the large bloody battles that would still be as radical a change as the one which was constituted by the Civil War of the 1860s. If thre-fourths of the State Legislatures make any change THAT DOES NOT CAUSE STATES TO HAVE UNEQUAL SEATS IN THE SENATE , THEN THE CURRENT CONSTITUTION CAN BE SAID TO BE IN EFFECT. Should that single element change then the constituion would not be ammended but replaced. Nonetheless, the concept that the 3/4 of the SL should prevail is pretty clear to the quiet few serious ones who matter most in such discussions.

    Should the radical options occur then it will be with the addition of significant violence in all porbability. A Convention is the untried middle ground between violent change and the “numbered ammendments” path used more than a score of times…

    The number of State courts and cases brought there in and under State laws are vastly greater than those which are federal. Local governments and most paragovernments are creatures of the states. The Feds have about ten associated-non State governments and the Federal treaties Tribal governments that are in structure their derivatives but in fact tend to strengthen the State model of power. The States largely decide how electors are assigned, do almost all policing and each have an army. States marry people, certify them to vote and certify their births and deaths. There are limits to how much power even a nuclear armed and deluded federal government can assert against the States for a long time. I do not say these are simple matters nor that anything is assured but back to the original issue — repeal of the 17th is possible technicaly. It would be a radical change surely.

    I advocate larger and more radical change myself. Therefore, I do not consider radical change entirely impossible. Yet, all I do makes it clear I consider it unlikely…

  3. Rich says:

    I declare an interest as an American. A few years ago when both houses voted on various motions about Lords reform (100% appointed, 80% elected, 100% elected, etc.), I was ambivalent. Since then, the arguments for election have seemed weaker and weaker to me. I don’t know if Britons know it, but in many U.S. states, judges are elected, sometimes in partisan elections. My home state, Illinois, has (if I remember the figures I learned in college correctly) 1,000 of the 11,000 units of local government in the United States. That is not because it has more cities; rather, it has myriad special districts: school districts, sanitation (as in sewers) districts, community college districts, library districts, highway districts, forest preserve districts, and mosquito abatement districts (among others). (Incidentally, we don’t have elected police commissioners, which has made the “American-style” label confusing throughout the Police Reform Bill’s passage. I don’t know of anywhere in the US where the head of general policing is elected.) To be fair, those districts arose because of a legal limit on borrowing by Illinois cities and counties, but electing judges and special district board members seems to add no value in terms of quality of service.

    If the House of Lords is meant to continue to be a revising chamber rather than a fountainhead of policy, then what value is added by electing its members? It may be the the electorate are perfectly competent to judge the relative expertise of two candidates, but they have little access to information about what forms of expertise are currently needed, and no ability to coordinate across constituencies to ensure that a variety of backgrounds are included. That of course assumes the parties would even bother selecting candidates on the basis of expertise in some field rather than on loyalty. Even assuming that, and that voters can select an upper house of deep and wide experience, they won’t. That’s not an insult to voters. Voters are normal people and have limited time to devote to informing themselves. That’s why parties exist. The Appointments Commission, put on a statutory footing, would be in a far better position to preserve the sort of experience base necessary for a revising chamber.

    The Deputy Prime Minister keeps saying that the people who make the laws must be elected. That sounds nice, but it doesn’t reflect reality. The US Senate moved to elections as much because partisan divisions in the state legislatures left seats open and because of rampant corruption as because of a slavish commitment to democracy. In addition, many democratic governments have undemocratic components.

    In the US, the main undemocratic institution is the judicial branch. The UK Supreme Court has some ability to rule legislation inconsistent with human rights legislation, but ultimately, its ability to protect “discrete and insular minorities”, a phrase from the famous footnote 4 in US v. Carolene Products, is limited. The House of Lords is the only institution with that ability, and it does a passable job at it. Moving to an elected house would necessarily make it a majoritarian institution, destroying that ability.

    If House of Lords reform does pass, it will at least have a humorous side: the American Constitution is partially based on Montesquieu’s flawed understanding of Britain’s Constitution; an elected Lords would be based on the Liberal Democrats’ flawed understanding of the US Constitution.

  4. Frank W. Summers III says:

    We have a direct election of the State Attorney General, all Sheriffs and most Police Chiefs in Louisiana. In many ways we are the most democratic polity in the modern world but those studies which say so do not do a thorough job of researching the facts. We have a Civil Code as well as constitution and it has Constitutional authority. There are connections which in turn give a different meaning to other bodies of Law so taht all function in a system as regards the:
    Children’s Code, Code of Evidence, Joint Rules,
    Civil Code Constitution Ancillaries, Revised Statutes,
    Code of Civil Procedure, Louisiana Constitution, Senate Rules,
    Code of Criminal Procedure, House Rules and Attorney Generals Opinions that in the confluence of Civil Code and Constitution create the Law.

    In this unique legal and political environmnet boards such as the Louisiana Mineral Board, the Board of Elementary and Secondary Education and others contribute a very pronounced element which is not democratic to the mix of governance as does the presence of the Federal Judiciary. This elite element is mostly held together by the use of experts in the verious versions of the Civil Code in short-lived boards. Much like modern Lords in modern Britain these bodies are seen as supplementary to the democratic process by many but their real complimentarity is more complex.

    Louisiana is the most different of the States but there are others with vital differences and several with elections of those who for all practical purposes govern policing. It is a truism that in most of the former Confederate states the elected Sheriff is the most powerful figure in his own jurisdiction…

    Mixed government in some form obtains in all fifty states to a limited degree. We in Louisiana have a system with very many elections that are truly majoritarian. Yet that is not the whole story.

    • Rich says:

      I’m not sure what I’m supposed to take from that. Louisiana may have elected police chiefs, but that is weird. I’ve heard “American-style” police commissioners very often in parliamentary debates without a satisfactory explanation of what the MPs and Lords are talking about.

      While I appreciate that Louisiana is odd and is the only civil code state, all states have most of the sources of law you list. Now that Illinois has codified rules of evidence, it may be that all states have that. All states also have Attorney General’s Opinions. Indeed, I think a large chunk of states, if not most of them, have elected attorneys general.

      In any event, none of that really addresses the point of whether making something like the Mineral Board elected would somehow improve its output by making it directly accountable to the people. Ultimately, that is the point. There is no evidence that judges make and interpret law better (in the 49 common law states, judges are responsible for making law regardless of what conservatives say) or that legislators responsible for revising legislation will revise better because voters choose them. Nick Clegg seems to either think that elections will magically imbue people with the experience and other qualities to produce the quality of work the House of Lords does now, or he doesn’t care whether the change in how peers are selected affects that output.

      • Frank W. Summers III says:

        Actually most of what you are syaing in your recent response is right although there is a difference between all other codes and ours because of the overarching Civil Code. The Civil Code changes the function of the other codes. Thus it also changes the function of AG opinions although they are not made entirely unique thereby. As to elected policing finality:
        The National Sheriffs Association chartered in Virginia represents 3,000 elected Sheriffs and has 22,000 members. How many are really subject to no superior policing authority?
        — I am not sure, but they the plurality.
        There is nothing wierd about us there as Louisiana has only just over sixty of these sheriffs. In terms of city police, the larger cities with Police Commissions dominate the statistics in population and they vary tremendously. In some Louisiana cities the difference is split in complicated ways but in many towns the chief of police is elected and in some small villages once in a while there is a case so iregular that a court has to raise the question of what exactly is the source of the authority. Together these villages and towns still make up a lot of Americans. Betweenthe numerous Sheriffs and fewer elected chiefs it is quite normal for Americans to have at least one police leader who is purely elected in their daily lives. However, it is true that Police Chiefs are generaly not elected and Comissioners with such titles even less so. Thus UK terminology is mysterious still. Your phrasing was what I responded to in my comments.
        As to the Judiciary, Louisiana has an entirely popularly elected Judiciary which is a minority position. However, when my grandfather was Chief Justice the system was still governed by a series of Gentlemen’s Agreements which made the elections very different ones, elected judges and justices were usualy vetted by the expert community, endorsed by particular region of bar associations in a certain way and never challenged except in malfeasance once elected. Those parameters have changed, although these races still differ from other elections. I remember a key transitional race years ago where four candidates ran and one female said that as a woman of color she did not accede to an unwritten Gentlemen’s Agreement. The person interviewing her in one case said that while she needed to remind us she was not a gentleman in the case of one of her male rivals no reminder was necessary. Like California and Texas, Louisiana was an old, prosperous and technicaly advanced society before joining the USA. Unlike those two states the earlier resident populations here retained far more influence and power at the cost of almost all formal dominance of the almost all the lands they had held as hinterlands. These Gentlemen’s Agreements devised in those early years of Statehood were very real and governed all aspects of life and politics for about one hundred and twenty years and are still relevant if not enforceable today.
        I believe the idea of total democarcy is “unAmerican” as well as bad. We seem to have no quarrel there. In fact, this bad idea has great currency in this country and is in my opinion in that zone of tolerance for acts which are essntialy treasonous but allowed. Total democracy violates all of America’s political values which are federal and mixed government values…
        These are areas of more interest to me than most and so my response is rather long. I do dislike the idea of my country collapsing into the darkness of total ignorance of its own nature politically and total democracy has been the force of the “democracy” rallying cry for that transition to insanity which still goes on….

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