Covering the Front and Back Pages of the Newspaper
December 1, 2006
POLITICS: Defending the 17th
It's a hardy perennial in the more philosophically-oriented conservative circles, despite its manifest political infeasibility: the argument that the Seventeenth Amendment should be repealed or should never have been passed. While this argument does have its virtues, I disagree. Regardless of whether it was a good idea at the time, repealing the 17th Amendment today would only weaken the mechanisms that are essential to conservative policies and conservative philosophy. Specifically, restoring to state legislatures the power over the election of Senators would make the Senate less directly accountable to the people and insulate the federal courts even further from public accountability, would increase rather than decrease state spending of federally-raised revenues, and would increase the importance and influence of gerrymandering over public policy and electoral politics.
The Role of the 17th Amendment
Just to review, the Framers of the Constitution provided that the House of Representatives would be elected directly by the people; the Senate would be elected by the state legislatures; and the President and Vice President would be the top two vote-getters in the electoral college, which would be elected by the people of each state. It was a carefully drawn compromise designed to balance parts of the government responsive to the people with those insulated from popular pressures, and to balance the interests of the nation as a whole, the interests of states, and the interests of local districts. Senators, with extended six-year terms, were given unique responsibilities not given to the House, such as the ratification of treaties, the confirmation of federal judges and executive officers, and the trial and removal of officers (including the President) impeached by the House. The sole power given to the House over the Senate is the power to originate "[a]ll Bills for raising Revenue," although the Senate is permitted to offer amendments to such bills, a power that in practice renders the House's privilege largely meaningless. Const. Art. I Sec. 7 cl. 1.
The Framers were wise and worldly men, but even they weren't perfect, which is why they made the Constitution subject to later amendments. The part of the system dealing with presidential elections broke down almost immediately and had to be scrapped to abolish the practice of saddling the President with a hostile Vice President, and the electoral college soon thereafter became a formality, with voters and candidates alike assuming that the electors (who today aren't even named on the ballot) were automatic proxies for the candidates they pledged to support. The House has remained unchanged since 1789, but its responsiveness to the people was limited almost from the outset by the venerable practice of gerrymandering, so named after a man who signed the Declaration of Independence and was a delegate to the Constitutional convention.
The current system of direct election of Senators was instituted by the 17th Amendment, one of a pair of "progressive" amendments ratified in the spring of 1913 as Woodrow Wilson entered the White House; the other was the 16th Amendment, which overturned Supreme Court decisions to give the federal government, for the first time, explicit authority for an income tax. Before 1913, federal sources of revenue were spotty and dependent on tariffs. At the time, proponents of the 17th Amendment argued that it would reallocate power from vested financial interests to the people - a project expressly intended to facilitate liberal economic programs of expanded federal regulation.
Federal power, federal spending and federal regulation, of course, have grown exponentially in an almost unbroken march since 1913, and opponents of the 17th Amendment often argue that making Senators once again answerable to the States would thus shift power back from the federal government to the states. In my view, that bell cannot be un-rung, at least in this way, and the desire to make Senators into creatures of the state legislatures fundamentally misunderstands the way politicians behave. More specifically, critics of the 17th Amendment fail to understand that the goals of repeal would fail utterly so long as its companion, the 16th Amendment, remains on the books.
The first and most significant reason to prefer direct rather than indirect election of Senators is that direct election means direct accountabillity to the voters. It's true, of course, that the voters have a checkered record of holding federal officeholders accountable on issues of spending, regulation and arrogation of federal power. But time and time again we have seen that the directly elected branches of government, and only the directly elected branches of government, will stand up for conservative principles on taxes, national security, and especially social issues. Why? In part because of the "elite consensus" phenomenon, where people who answer only to other politicians end up listening only to other politicians and the things they believe in, rather than being compelled to tailor their ears as well as their messages to the population as a whole.
If you want examples, look no further than the world's most prominent examples of indirect government - the European Union and the United Nations. Both consist of representatives appointed by governments rather than elected by the people. And both are easily captured by faddish political correctness and infamously disinterested in limited government. If you like the EU and the UN, if you adore federal regulatory agencies and the federal judiciary, you will love an indirectly elected Senate.
Or look at parliamentary systems, including our own systems for electing legislative leaders. Throughout Europe, parliamentary systems are famously unresponsive to "populist" concerns they deem to be beneath their notice, like crime and immigration. Here at home, both parties often end up with congressional leadership that is out of step with the majority of the party's voters - how many rank-and-file Democrats would vote for Nancy Pelosi, if given a chance? Did you vote for Trent Lott? No, but your Senator may have.
Or consider the issue of judicial nominations. Your red-state Senate Democrat will run for re-election, it is true, on a menu of issues - but he or she can be pounded for obstructing good judges or supporting bad ones. It's the Senator's own vote. This was a key issue in a number of Senate races in 2002 and 2004. But it's much harder to hold a local state legislator responsible for those votes in far-off Washington, cast by someone else. The state legislator will have his or her own record to run on as well, and probably much deeper local community ties that help him or her to get re-elected regardless of votes on Senators who vote on judges who vote on social issues - or, specifically, judges who vote to take social issues out of the hands of state legislators who may not want to have to vote on them anyway.
Experience has shown that better government, and more in line with conservative principles, comes about when government officials can be held directly accountable for the things they support and oppose, while liberal priorities are best promoted when lines of accountability are blurred and power removed from those who can be fired by the electorate. Let us not cast away that lesson in a vain pursuit of 1912.
The accountability issue takes on a particularly problematic cast when you consider spending. One of the developments that disturbs me most about federal spending, whether it's done through pork-barrel earmarks, block grants, or entitlement programs, is the tendency to use the vast revenue-raising powers of the federal government to raise money, and then kick it back to states and localities to spend. More local control of how funds are spent may be the lesser of evils here, but either way, state and local officials are getting the retail political benefits of handing out goodies, without being held responsible for having extracted the money from taxpayers for things they might not have agreed to pay for if given the choice. Because the money comes from the vast federal till, people are less apt to think of it as coming out of their own, local community. (I discussed some detailed examples from my own congressional district here).
The dynamic is bad enough as it is under the current system. If you think we could solve this accountability shell game by creating a class of Senators whose only constituency is state legislators . . . well, it just wouldn't work. State legislators would love nothing more than to solve all their budgetary problems by taking handouts raised by the federal treasury (I discussed a classic example of this plea in the 2003 Democratic response to the State of the Union - or just listen to Hillary Clinton some time and count the number of references to federal money being sent to state and local governments). Put another way: an indirectly elected Senate would be AFSCME's dream.
Consider: the Senate is the only legislative body among the two Houses of Congress and the various state legislatures where the elected officials don't get to choose their voters. At present, state legislatures (or, in a few states, nonpartisan commissions) get to draw the district lines for the state legislature and for the House. And those lines not only lead to a lot of partisan mischief but also to efforts to place incumbent-entrenchment above even the interests of the parties.
Today, the Senate alone is free of that concentration of power, providing a genuine democratic check on the power of the gerrymander. Having Senators elected by the state legislature would remove that check.
I haven't discussed here all the possible objections, but these three stand out. Conservatives should stand for accountable government because our principles are best enforced directly by the people. Whatever the original intention of the 17th Amendment, it has become an ally in that battle, and should not be disregarded.