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circles, despite its manifest political infeasibility: the argument that the Seventeenth Amendment should be repealed or should never have been passed.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.
I. Accountability
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.
II. Spending
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.
III. Gerrymandering
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.

12 thoughts on “Defending the 17th”

  1. I’m with you . . . for many of the reasons you mention, plus my general philophy, which tends to err on the side of Democracy rather than Republic if given the choice.
    * * *
    You didn’t mention the third cog in the wheel of the “Federal Coup of 1913”: the establishment of the Federal Reserve, which managed to be both an aggrandizement of power at the federal level and a throroughly un-democratic step, removing the power of the purse one step further from the citizenry.
    The long downward slope of Fiat currency hasn’t leveled off in 93 years. In fact, the dollar has lost 95% of its value during that time.

  2. Mike, you beat me to the punch on the Federal Reserve. I don’t read all the blogs you do Crank, so I didn’t even know there was an undercurrent (overcurrent?) to amend the 17th amendment. There is way too much talk about amending the Constitution, and it seems to emanate from the religious right, not from the Conservative movement. Don’t know about this one, but the ones about abortion and marriage certainly come from there.
    Personally, I think the current system, with all the usual flaws, does tend to work, at least better than the parliamentary system. Governments will always spend more than they should. We all spend more when it isn’t ours. And our trains generally do run on time (even the Long Island RailRoad that I take). I think the reason the Founders made it tough to amend the Constitution was that they knew that politics tends to evolve. I’ll bet most of you under 45 or so don’t remember what a ruckus the Equal Rights Amendment caused. There were demonstrations that everyone would have to share bathrooms, and then the opponents scared everyone into thinking we would actually have to send women INTO COMBAT!!! I capped those because it was a big fuss at the time. Guess Mr. Madison was right again.
    The last (and maybe only) time we got a “frivolous” amendment was Prohibition. Stupid might be a better word.

  3. You make a good case, but you haven’t really confronted some pretty big objections to direct election of Senators.
    For starters, it about makes me puke to watch Senate candidates boob-baiting serious issues. Unless I’m mistaken, the Senate was to be this great deliberative body, sometimes acting in a fashion we might not immediately see as being in our interests, but accountable to our state representatives. Insstead we get Chuck Schumer.
    I can think of quite a few issues the Senate should pursue but choose instead to demagogue. Social Security and school choice are just a couple. Meanwhile, years go by, lives are wasted in substandard schools and the SS fix gets more and more expensive.
    Arguing that the flow of money back to states would be even worse isn’t swaying me either. It appears the only thing different would be who spends the money. Our desire for stuff bought with OPM seems only limited by our slow realization that we’re paying for it one way or the other. Folks are going to make the tax/spending calculation at some point no matter who’s spending the dough. I can’t see enlightenment coming any quicker no matter how we elect Senators.
    You’re pretty convincing, but overall I can’t say the objections you raise quite outweigh the real problems that have arisen with direct election of Senators. Repeal the 17th.

  4. Spongeworthy, changing the structure just because you don’t like the outcome doesn’t always work.
    Crank has turned the arguments of the founders upside down based on 20th century experience, and he is right.
    The founders thought that the people would use government to foster a redistribution of wealth and sought to check popular government by giving equal power to the states via the Senate and vesting final authority in an unelected judiciary answerable to the law. The addition of the Bill of Rights gave the judiciary tools for the protection of the wealthy few from the cupidity of the many.
    Or so they thought. It turned out, though, that the unaccountable levels of government are often captured by a few whose wealth is some supposed superior knowledge. They use that knowledge to foster government action in spite of the objections of the ignorant masses. The examples of the UN and the EU are well-taken.
    In fact, the UN is exactly like the Senate as created by the founders. UN delegates are accountable only to their home governments. The UN bureaucracies are accountable to a Secretary General who owes his election to those same delegates, just as America’s founders envisioned a president elected not bt the people but by a colleg of electors.
    Agreed that those who tax and spend should be directly accountable to the voters; but the founders were right to fear temporary passions being enacted into law. I think that is what concerns spongeworthy, and I agree with him on that score. It is up to the judiciary to protect unpopular minorities.

  5. One of the effects of the current, direct-election system is that it opens the door for non-career politicians to become Senators, particularly if they are famous or extremely wealthy. I’m not entirely certain if that is a good thing, but it is if you’d prefer Senators who haven’t spent their enire adult lives cultivating the favor of state legislatures.

  6. Repealing the 17th Amendment would being out an interesting dynamic because of state politics: right now both Mississippi and Alabama have 2 GOP senators each. However, their state legislatures are heavily Democratic, and do not seem to be going GOP anytime soon, as there are still a lot of rural voters who vote Democrat because “that is the way always was.” So, we would have two of the reddest states in the Union having democratic senators. Granted, they would not be liberal senators, but they would affect chamber control and committee chairmen.

  7. I know I’ve commented before, but there seems to be a major disconnect (big surprise) between the extreme right and left wing. The right wing, when it doesn’t get its way gets really angry and demands the laws (especially the Constitution) be changed to suit their version of what is right (no pun intended). The left wing goes to the Courts and insists that it get its way and then nothing more need be done.
    What these 2 extreme points of view have done is avoid a diaglog. The actual act of debating issues. Where we once had Lincoln and Douglas debate for hours in front of crowds supposedly less educated an informed than us while now we have candidates who give sound bytes under rigid rules while an audience waits for a stupid slip fo the tongue, maybe someone who dares to glance at a watch or something.
    Maybe it takes seeing Islamo-Fascists take this to the extreme to realize how destructive our inability to “converse” is. Keep the 17th amendment the way it is, insist that our lawmakers debate the issues, and try very hard to keep the courts as a final check on things.

  8. Darryl, you argue there is way too much discussion of amending the Constitution in a post defending a previous amendment? I want little or no change to the Constitution. However, I have no problem with frequent and rigorous discussion of the Constitution and proposed amendments. I believe we all benefit from open discussion of ideas. Just because an amendment passed shouldn’t mean no further assessment of that decision should take place. Look at prohibition. Well meaning people thought that amendment would solve the alcohol problem they perceived to exist. A decade later it was very obvious that prohibition caused more problems than it solved.
    As far as repealing the 16th goes, I’m somewhat ambivalent. Although I like the idea of senators not being able to rely on popularity to ensure a career in the senate, I think some of us in favor of repealing would in time be disillusioned with the results.

  9. I may not have writen it well Bill. What I meant to saw was there is too much thinking that the Consitution is a means to enforce wht some people want. The Consititution is meant not to enforce how we behave, but what we permit our government to do. So all this argument about say, a “marriage” amendment, that is something that tells us how to live. And frankly, I’ve seen that the people who want all these new amendments are not willing to discuss anything. How about that group taht came down hard on their reverend for daring to invite Barack Obama, because he isn’t against abortion? You come donw because you want to have a dialog with a sitting US Senator who is seriously discussed as a presidential candidate? That is a stupid as the Columbia students who don’t want to hear an opposing opinion as well. That is my point. Our extreme sides don’t want to talk, they want to enforce.

  10. Interesting and informative Crank. And I agree with your conclusion – the perhaps unforseen power to gerrymander House districts leaves state legislatures with ample control over the federal agenda, despite the direct election of Senators.
    One question:
    When you say “The Framers were wise and worldly men, but even they weren’t perfect, which is why they made the Constitution subject to later amendments.”….do you mean allowing ammendments was unwise, or that the framers knew they were not perect, so that is why they allowed them (which of course makes them more perfect)?

  11. The “state’s rights” angle has more legs than I thought. That seems to be the focus of the article at RedState. Only a true authoritarian would propose repealing the 17th Amendment. Direct election of the Senators promotes democracy. Having other people choose Senators for us is a step away from democracy. How, exactly, are the interests of the states overlooked by direct election of U.S. Senators? If anything, most states are over-represented in the Senate because small states get 2 Senators, just like large states.

  12. Steve, considering the Great Compromise was setting the ratios of representatives and senators, I think it’s missing the point when you sya the smaller states get two senators. That was exactly the point that allowed the Constitution to be written. Now populations and technology have certainly changed, but people and psychology have not. Amendments can come and go, but the basic idea, that one is timeless.

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