On Repeal of the 17th Amendment
Ignorance of history and process is a hallmark 17th Amendment repeal arguments.
Seth Masket has a post worth reading over at Mischiefs of Faction: Why repealing the 17th Amendment wouldn’t fix the Senate.
First, as he notes, it should be remembered that state legislators willingly transferred this power to the voters:
It took just a year for three-quarters of the state legislatures to ratify an amendment that gave away a vital power of theirs.
Picking senators was a power that many legislators simply didn’t want. In several states, it absolutely paralyzed legislative activity and contributed to the polarization of the chamber.
By the turn of the 20th century, thanks to legislative selection of senators, national politics were controlling state legislative elections, rather than states controlling their senators.
It should be stressed in these conversations how hard it is to amend the US Constitution and that states have a great deal of power in that process. State legislatures willingly gave up this power. It was not taken from them.
Further, there isn’t much evidence of selected Senators representing their states in some unique or special way that pro-repeal types like to think was the case. Indeed, as I continually note on this topic (and the Senate in general) there is not special “state interest” apart from the collection of interests shared by the human beings who reside within a given set of arbitrarily drawn lines on a map.
To that point Masket notes:
one of the surprising things about this amendment was how little effect it had on political outcomes. In 1914, the first year of Senate elections, every Senate incumbent who sought reelection (each of whom had been appointed by a state legislature) retained his seat. There were a few modest effects — post-amendment senators were less likely to emanate from political dynasties, and turnover was a bit higher. But it didn’t dramatically transform American politics.
Consider: if Senate candidates are likely to be high level members of established political parties who have enough accumulated power within state politics to be considered US Senator by the state legislator, this is also the kind of person who can win a state-wide election for the position. Think about it: what kind of politician tends to be nominated to run for US Senator (especially the ones who are successful enough to be competitive, if not win)? The pool would include Governors, AGs, other prominent members of the executive branch, US Representatives, and prominent members of the state legislature. On occasion an outsider (e.g., a very prominent member of the business community) might run. Logic and historical evidence suggests, therefore, that the basic pool of candidates is not that different in either system.
Another reason for thinking, in the abstract, that appointed Senators might be more responsive to state interests is the notion that legislatures could better hold Senators accountable. But, if Senators are chosen from party elites in the state, it is actually more likely that under such a system that the Senator would be kowtowed to by the state legislators, rather than the other way around. In the pecking order of political power, a US Senator is far more significant and powerful than a member of a state legislature. And if one is an aspiring politician at the state level, is one more likely to want to kiss up to a sitting Senator or hold said Senator accountable? The fact, as Masket notes, that the elected Senate had less dynastic qualities and slightly higher turnover illustrates this point. Put another way: those who argue for repeal seem to think it will turn Senators into creatures of the legislatures, but there is no reason to think this.
So it’s not entirely clear what conservatives would gain through a successful return of this power to the state legislatures. To be sure, there would be more Republicans in the Senate if state legislators got to pick senators this year, but it’s unlikely Republicans will maintain their current numerical advantage in state legislatures. For the most part, this effort, if successful, would take away a power voters have that they seem to like having, and give it to a group of politicians who don’t want it, all in an effort to recreate the political problems of the Gilded Age. Where’s the upside?
I think he hits, perhaps, a current desire: the idea that it would increase the number of Republicans at the moment. The other is, I think, an abstract (and poorly thought out, as well as ahistorical) notion that there is a special kind of state representation created by the Senate that is enhanced by legislative selection.
However, ultimately, states are just collections of people living in specific territory. Interests derive from people, not real estate, so the notion that “the state” has interests apart from those people is incorrect. Further, what is a state legislature other than a layer of representation based on popular votes. That is: any claims that state legislatures are created from the voters in their districts. They do not have special statewide obligations or powers. Their interests are linked to their districts, not the state as a whole. In a simple model it looks like this:
So, a pre-17th Amendment selection model was
Voters–>State Legislators–>US Senators
Sure, you could argue that the the state legislature has insights into state government that might inform state interests, but note that they are basing their views of “state interest” on their district-level constituencies. There perspectives aren’t, actually, “the state” but rather their specific slice of the state.
As such the 17th amendment model is more likely to capture of meaningful state level interest than is the legislature:
So, if the goal is have Senators more in tune with state interests, the current system is actually superior. Senators actually have some pressure to have state-wide views that individual state legislators do not. If, however, the expediency of the moment leads one to note that more Republicans would be appointed today, then the preferences become clearer.
I would conclude by noting that any understanding of the Senate as constructed by the Framers has to be understood in the context of the politics of the 1780s. The chamber itself is a reflection of the need to find a way to get 13 sovereign units to agree to merge into one. Beyond that, the nature of representation in the chamber (two per state) was very much a political compromise. Any notion that the design of the legislature as created is perfection is undercut by these facts (perfection, by definition, is not necessary if one has perfection).
As an addendum (rather than trying to weave this in above), it is worth noting that after the Senate failed to repeal the ACA, Mike Huckabee tweeted:
Time to repeal 17th Amendment. Founders had it right-Senators chosen by state legislatures. Will work for their states and respect 10th amid
— Gov. Mike Huckabee (@GovMikeHuckabee) July 28, 2017
Ignorance of history of 17th Amendment is revealed by response to my earlier Tweet. Direct election of Senate is major cause of #swamp.
— Gov. Mike Huckabee (@GovMikeHuckabee) July 28, 2017
The first one assumes that all appointed Senators would have the same view of the 10th Amendment as Huckabee does–which not a reasonable assumption.
The second one really amazes me, insofar as ignorance of history is a hallmark or those who want to repeal the 17th in the first place.
As someone or other once said, follow the money. It appears this is being pushed by ALEC and the Kochs. The billionaire boys club may feel that Senators not subject to popular vote would be easier to influence. Given how fear of voters drove failure of Obamacare repeal, they may be right. Back when the Senate was the world’s most exclusive men’s club it was common for the richest guy in the state to buy a seat. It may be that the Koch Bros have a dream of spending a leisurely retirement in the Senate.
Do you know what’s also popular among conservative, Tea Party types in the past few years? Direct election of Supreme Court justices. Ted Cruz (also an advocate of repealing the 17th) made the case in 2015, shortly after the SCOTUS decision legalizing gay marriage. (He ignored the fact that Obergefell was clearly popular, raising the question of why elected justices would have been any likelier to rule the other way.)
So, in one case they advocate removing power from the people and placing it in the hands of elites; in the other case they advocate just the opposite.
What it really comes down to is a temper tantrum whenever these institutions don’t produce the policies they favor.
Apparently, Huckabee has a dim view of the voting public in that they are the reason the swamp exists. He’d rather have bought and paid for State Legislators in charge of picking the Senators.
I don’t follow the logic.
BTW. I would like some enterprising journalist to go interview a 100 or so people (politicians, pundits, business folk, etc.) and get their idea of what the “swamp” is. I’m willing to bet you get about 100 or so descriptions. And the loose common definition will be: “The swamp are people who get something that I don’t”.
@gVOR08: It is probably cheaper to buy off a few dozen state senators than to flood the airwaves with
propaganda, ooopps, I mean “ad buys”..
@Scott: If he wants to see a swamp, he should pay a visit to Jefferson City when the state lege is in session. Outright bribery isn’t just legal here, it’s encouraged.
Now that Republicans have gerrymandered and voter-suppressed their way into controlling over 30 statehouses, of course many now want to de-democratize Senate elections.
But repealing the 17th has been a Tea Party obsession since 2009, when they didn’t control all those statehouses. I prefer to view it simply as reflecting a deeply anti-democratic impulse in the movement that isn’t dependent on whether they’re in power or not. In an odd way, Cruz’s argument for direct election of SCOTUS justices stems from the same impulse, because it was a refusal to accept the legitimacy of an institution that produced a result he didn’t like.
@Kylopod: It has been popular in certain circles even before that. I want to say that Alan Keyes was a big proponent some time ago.
@Steven L. Taylor:
The 2009 article I linked to mentions Keyes, as well as George Will and Zell Miller. There has long been a class of conservatives who practically worship the less democratic elements of the original Constitution, under the theory that they were all part of the Founders’ wise reluctance to put too much power in the hands of the people. (Ironically, one of the main reasons I disagree with Cruz’s proposal for elected SCOTUS justices is that I believe Constitutional rights are one of the few things that should be protected from the will of the people. But the Senate and the Electoral College were compromises put in place largely to protect slavery, and I think they remain among the US system’s greatest flaws.) But these views generally existed only at the fringes until the rise of the Tea Party.
Given how Congress has happily surrendered a great deal of its power and perogatives to the Imperial Presidency, I’m not sure the willingness of the States to give up the right to pick Senators says anything about the wisdom of that move. And while I’m not a fan of repealing the 17th Amendment, at least it’s a concrete and vaguely practical idea for addressing the profoundly dysfunctional state of the Senate, and our politics in general, which has been significantly worsening for several decades.
And anyone who writes “states are just collections of people living in specific territory” should refrain from impugning anyone else’s intellectual fitness. Are families just collections of people living in specific homes? Are businesses just collections of people who work in specific buildings? Are churches just collections of people singing specific hymns? Why are we making such a fuss about Russia if it’s just a collection of people living in a specific territory? That kind of ignorant, unthinking, atomized idolatry of individualism is part of what repealing the 17th Amendment would be trying to counteract.
Yes, 21st century American states are far less seperately sovereign and culturally distinct than they once were but there are still plenty of meaningful inherent differences between, for example, Iowa and New Jersey.
Except that it isn’t. There is nothing about Senate functionality that would be remedied by this suggestion. Senate dysfunctionality is driven by a combination of political polarization, Senate rules, and a skewed system of representation. Giving the power back to state legislatures to select Senators does not fix any of those.
Yes, although I am not sure that I would reduce it to hymns.
Really, in all of those cases there is more purposiveness in each of those collections than is the case in who lives in a given state.
This isn’t complicated: the interests of any collective is dictated by people and their self-perceived need, wants, and so forth.
The house doesn’t have interests, the family does.
The building doesn’t have interest, the business does.
The church building doesn’t have interests, but the congregation does.
The state doesn’t have interests, but its residents do.
Yes, there are differences between the interests of state X and Y, but those interests are defined by the people living there. Absent the people, there is no state interest.
Because of the collective interests of that collective. How is this controversial?
As I believe I have noted before: you are not required to read posts with my byline.
@MBunge: One more point:
Which, weirdly, the voters in IA and NJ can fully appreciate when they vote for their Senators.
I supposed the only benefit I can see from repealing the 17th amendment is that it might place renewed interest in state government by citizens of each state. In other words, the composition of the state legislature would matter more because it would have bigger federal implications. But that’s a pretty thin reed and even if true it wouldn’t, IMO, counter the various downsides of repeal.
@Steven L. Taylor:
That’s exactly right which is why the 17th amendment repeal effort will fail and is ultimately pretty stupid. But this is also why the centrality of the state (especially state legislatures) in our federal system will not change anytime soon.
Paying for their ad buys, campaign contributions, is mostly how you bribe them these days. My old home state of North Dakota tends to have very powerful Senators because they had high seniority. Same was true of SD. The biggest reason was that the two together are blanketed by four TV markets. You can smother the state with ads inexpensively. So you can buy the incumbent almost certain reelection, and with it the incumbent, on the cheap.
Money is the root of all evil, money in politics no less so.
Given what we know about how people pay attention to politics, I doubt it. The reality is that while local government is the government most likely to affect our daily lives, it is the government we pay the least attention to.
States are important and our system will (and should) remain federal. I do think most discussions of federalism emphasize the wrong things. Sure, state representation in Washington is part of it, as is the Senate, etc. But federalism is really more about the fact that much of daily governing is handled at the state level (e.g., police, sewers, K-12, higher ed, roads, prisons, etc)–even with debates about national government interference, that is really the heart of a federal system.
@Steven L. Taylor:
That’s all true. I would add that states have powers distinct from the federal government or, rather, the federal government does not have inherent authority over many functions of state government.
As an aside, it continually surprises me is that many people do not understand this nor do they understand how the federal government gets around it by using federal money. The classic example is the National Minimum Drinking Age act but there are many others (perhaps Marijuana is the most obvious case).
Anyway, representation in Washington is a nut that I don’t think you can crack. The legislatures of the small states are unlikely to willingly agree to give up their equal status with the big states at the federal level.
@Andy: Indeed all around.
I’ve had this discussion with TeaParty-affiliated family members. There seems to me to be no reason under the sun to repeal the 17th for all the reasons expressed by Prof Taylor above. The pro-repeal arguments I heard were like Mike Bunge’s case above; they seem to contend that the original idea from the ‘Great Compromise’ involves states having more sovereignty than currently understood and that our present denigrating of that sovereignty disturbs some sort of American purity. If we only get the original recipe cooked right all our problems disappear and we have the strength of ten because our hearts are pure. It’s kind of like Apostolic Succession or the Inerrancy of Scripture.
Don’t confuse them with facts.
I was born and raised in Maryland and I currently live in New York. While in roughly the same region (the US Census still considers MD part of the South, but that’s largely archaic today) the two states have many differences. But I have never considered my self-identity as a “Marylander” or “New Yorker” as much more than simply a description of where I happen to live at one time or another. When I visit other countries I have a strong sense of my Americanness, but when I visit other states I have never felt a sense of Marylandness or New Yorkness. And having known people from many different states, I have never gotten the sense that any of them think of themselves as intrinsically “of” that state. (Well, okay, maybe Texans…) Despite all the cultural, political, and economic differences, most Americans think of themselves mainly as Americans, and not Alabamans or Iowans or Californians. There’s a reason Thomas Jefferson’s description of Virginia as “my country” sounds so weird today.
Of course small states like having two senators. But that has far more to do with power than identity. You give any group of people disproportionate power, they’ll usually take it, and they’ll throw a fit if you try taking it away from them. Had the Founders come up with a system that divided up everyone by the letter of their first name and gave each group exactly two Senators, all the Quentins and Xaviers would be screaming at the prospect of reform.
There are 55 things named after Sen. Byrd and nine more after his wife. Would a return to the old system have changed this?
My guess is that the people who get returned for term after term by direct vote would also have power over state legislatures.
Yes, but that was the intention from the beginning. Virginia was the California of it’s day in terms of being the most populous state. During the constitutional convention its delegates wanted two representative legislative bodies apportioned based on population because they stood to have a larger slice of federal power. The small states didn’t like that and I think one proposed a single legislative body where each state got one vote. Virginia and the big states didn’t like that. The result was the Great Compromise of 1787.
In other words, the entire purpose behind the composition of the two legislatures was to balance the power of more populous states with less populous states. And senate representation was deemed to be so important at the time that it enjoys special article V guarantees.
Without the Great Compromise, there probably wouldn’t be a USA. IMO efforts to get rid of it or fundamentally change it are fantasies. It’s “baked in” to our system of government.
@Andy: Although the ration of population between VA and the smallest state and CA and the smallest state is significantly different.
But yes: it was a necessary political compromise and I can fully respect talking about it as such. It is when people want to pretend like there is some genius magic to the actual design that makes me a bit nuts. 😉
It is part of the GOP mythos that corruption increases as you move from local to national. This is a deliberate con; GOP donors are perfectly aware that it is much easier to buy (or otherwise influence) local politics, and that it gets harder as you move up. The powerful preach a doctrine of local autonomy as a way of getting the rubes to vote for oligarchy. (They supplement this by sending clear signals that local corruption will be used to suppress disfavored minorities.)
This is just more of the same.
When the Constitution was written, the pool of possible voters was much smaller and fairly homogeneous (wealthy male landowners). As a result, the interests of those voters were well-represented both at the State level and in the Senate.
As suffrage became more universal, the pool of possible voters became more heterogeneous, and it became harder and more expensive for those wealthy elites to maintain control over the voting process. This anti-17th movement – and indeed much of the fetishization of the Founders – stems from a desire to work around universal suffrage and return to a world where wealthy landowners are the only constituency with a voice in government.
Why the obsession with keeping states as viable powerhouses in a federal process? Simple – it’s easier to control the local, especially the low populace ones. I often joke that some rich Dems should get together and found Operation Resettle: start a few mid-sized liberal towns in an empty red state and watch that sucker flip to purple fast. There are less then 800K people in North Dakota and Trump’s margin of victory was a little over 100K. We’re talking a city the size of Clearwater, Fargo, or Stamford – not unreasonable. Combine that with the repeal of the 17th and you’d have some pretty good long term investments for a less then scrupulous billionaire. 3 Electoral votes, 2 Senators and assorted Congressmen for the low, low price of bankrolling (and controlling) one city……. this kind of proposal has “money = might” written all over it.
indeed, trump won WI by fewer than 23,000 votes.
But there is a deep geographical problem for the Dems caused by liberals moving to a few good places and conservatives staying behind in lots of overrepresented shit places as well as other distortions.
I’m confused. Now Hucleberry wants to repeal Amendment 17 to make the world a better place. Recently Huck had what I thought was a far more effective method for Citizen Enlightenment:
Maybe Huck will consider a political compromise.
Repeal of the 17th Amendment in tandem with repeal of the
@Steven L. Taylor: I am, once again, impressed by your patience.
The religious right are totally not authoritarian shitheads.