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.