The 17th Amendment: What’s (Surprisingly) Up For Grabs

One of the tea party movement’s more radical ideas — the termination of the direct election of Senators, effected by the outright repeal of the 17th Amendment — is easy enough to mock. It’s not every day one of the defining elements of modern democracy comes into question. But perhaps curiously, the argument for a return to the days of a state-appointed Senate gets some support, even among the educated classes. Why?

We can accept, for the sake of argument, that democracy for its own sake is not necessarily a virtue, and therefore not on its own a reason to prefer direct election. We are not, after all, a direct democracy, and with good cause. By vesting lawmaking authority in representatives, we impose a desirable filter between the people and the government, thus mediating conflict and facilitating simpler decisionmaking.  Sometimes, when sound policy calls for it, we even further sever the link between the people and their functionaries, by requiring that one set of representatives appoint another. But in almost all of those cases, the elimination of a democratic influence is the point, not a by-product of some other structural concern — as is the case in the selection of federal judges. Why relegate federal Senators to the same undemocratic status as federal judges, a condition that conservatives elsewhere bemoan?

The argument must depend on the notion that, when federal Senators are selected by a state’s legislature, and thus by its people only secondarily, some undesirable influence is somehow excised, and some structural interest somehow validated. But contra Glenn Beck —

— it’s not clear the Founders actually gave much thought to this position. Madison-as-Publius defends the initial procedure for selecting Senators only in passing. Beck magnifies Madison’s argument about the desirability of a strong interaction between the federal legislature and state counterparts to suggest that a Senator with a legislature as his constituency will be more mindful of state problems than one accountable to actual people. Maybe — though that’s by no means clear — but to what end? The elimination of any federal laws that disproportionately advantage one state over another? That may be politically advantageous to the conservative movement, as further fulfillment of its antiregulatory dream, but it’s systemically disastrous, fostering fractious sectionalism and the piecemeal resolution of truly national problems. Neither of those are goals supported by the text or structure of the Constitution.

The notion that the legislative appointment process is less susceptible to interest group capture than direct democracy, too, is nowhere supported by the evidence. Although any direct election creates the potential for a lobbyist to “buy” a representative by disproportionately funding the candidate’s war chest, that’s just the point: any election entails that risk. State legislators are just as easily corruptible, and perhaps more so, because their foibles are less publicized. Letting state legislatures appoint federal Senators would kick corruption down the chain, but not eliminate it. If “tea party” conservatives were actually serious about cutting down on lobbyist influence, they’d support contribution caps, publicly funded elections, and other meaningful campaign finance reforms. But just the opposite is true, and it’s about to get worse.

Finally, state legislatures suffer from a myriad of grave problems that would only be magnified by repealing the 17th Amendment. The political composition of the New York Senate, for example, is massively distorted by shocking gerrymandering and bizarre population-counting rules, two factors that, together, produce a gridlocked body substantially more conservative in character than the state’s actual population. Such distortion isn’t unique to New York, and isn’t unique to state legislatures, either — gerrymandering is rampant in federal Congressional elections, too — but because Senators are elected statewide, they’re somewhat insulated from these negative influences. Repeal would compound such problems, and provide another avenue for corruption to influence federal elections.

Tea party conservatives might win the originalist argument against the 17th Amendment. I don’t know, and frankly, I don’t care. 18th century America was a very different place, and at the end of the day, arguments about changing the fundamental structure of our democracy should be won or lost based on the way our country has actually fared, not how the founding generation expected it to fare. Originalism has its use in interpreting passages of the Constitution, but has is starkly silent on the question of how it could be improved.

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11 comments

  1. Let me just say about that video clip: the backdrop. I hated that style on the Obama poster, and I hate it now that people are copying it.

  2. What I find interesting is that for the most part (generalization here) the people that are opposed to the direct election of certain government officials love the use of referendum voting and vice versa. It’s an interesting contradiction.

  3. The founding fathers had their skepticisms aobut direct elections, either because of practical or fundamental concerns; not only did they give us the indirect election of senators, but also the electoral college.

    Notice that the elections involving the largest constituencies are the ones instead decided indirectly. That speaks to a practical concern about disseminating information about the candidates and coordinating the voting. The only other offices on that scale in this country would be gonvernships, and those are of course left to the state constitutions.

    Even initially, our upper house was still a vast improvement for democracy over its British analogue, the House of Lords.

  4. I think the real driver for this idea is the thought that certain classes of people shouldn’t vote. When you drill down on the Repeal 17 crowd, you get a lot of support for poll taxes and literacy testing.

    Now, this is not a racist thing, but a class thing. The Repeal 17 crowd distrusts “union thugs” and other groups perceived to be getting more from the government then they pay in.

  5. oneiroi · ·

    I am kind of flabbergasted that the Tea Party is supporting this. If they are a populist movement, why would they want to give away electoral power to the government? The one they said is tyrannical and too big?

    Also, this would make the probability of many of the current tea party politicians (all third party candidates), not make it to the Senate. I mean, if you have this being decided by party leaders, they’re not going to be giving it to people outside the party.

    1. On the other hand, a radical Tea Party Republican might be more likely to be selected by a majority-Republican state legislature than by the people of the state at large.

    2. That’s exactly it. They’d probably pick up two Republican senators in New York, as a function of the state’s ridiculous gerrymandering.

    3. The Tea Party isn’t “populist.” They are the conservative wing of the Republican Party, dressed up like kids going trick-or-treating on Halloween.

      1. I could not diagree more strongly with that statement. At this point the entire party is more or less conservative. To be sure, the conservatism has all different shades, but your implication that there’s some moderate/centrist/liberal coalition within the party is incorrect from my vantage point as a mainline conservative.

        The Tea Partiers are a curious mix of Far Right conservatives and right-leaning libertarians. Sprinkle in a small % of racist Independents, Republicans and Democrats and that’s what you have. They don’t represent all conservatives or only conservatives at all.

  6. […] The 17th Amendment: What’s (Surprisingly) Up For Grabs […]

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