Seventeenth Amendment



Today one of my colleagues at the AEI intern lunch table and I got into an interesting discussion about the 17th Amendment and federalism. Personally, I have never heard of a call for repealing the 17th Amendment because I never thought that directly electing Senators was a bad thing. However, some of the arguments that she made were appealing and made me question my own interpretations. The 17th Amendment allows for Senators to be directly elected by the people instead of by state legislatures as it was done before. There are a number of principles that are clashing in this instance including democratic and federalist.

Federalist #62

I think that it is important to take into account the logic of the founding fathers for why the Senate was to be elected by state legislatures and not directly by the people. The Senate was supposed to be yet another check on the power of federal government instead of an instrument of.

Question(s) for Debate:

1) Should we repeal the Seventeenth Amendment? Why or why not?

The Const was drafted to drawn upon different constituencies and procedures in electing the two houses and the president to "balance" the government between the landed and the masses, the wealthy and the poor, the farmer and the urbanite, the large state and the smaller state, etc. Today, everyone has graduated to "mob rule", I mean direct popular vote. We have decided we were smarter than the boys of 1789.

Should we repeal it? Completely academic. We are about to have de facto popular election of the president (Maryland just enacted a measure providing that the popular vote winner takes all of its electoral votes in the pres election, and others are following in the pipeline), so our silly culture--having more information avaiable to it than we've ever had before, but possessing less wisdom and knowledge than we've ever had before--is going to raise its hands for all votes.

Yes we should. If we've proven nothing else in the last few decades it's that We The People are ill equipped to Form A More Perfect Union. In short, if it requires more time to figure out than changing channels many of us can't be bothered. Many people will vote for a Senator with little or no knowledge of the candidate past what party they are aligned with.

Yes we should. State legislatures should elect Senators per our system of Federalism. As of now there are little to know mechanism through which States are given direct power over the Federal government. A repeal of the 17th Amendment would give them such a power and in doing so would likely lead to more participation in state level government. In addition, it would likely lead to a kind of de facto term limits for Senators. By that I mean State Legislatures are more likely than citizens to continue to vote the same Senator into office continuously.

CP

I only support changing the Constitution when it is proven to improve the document. I do not see a single advantage to changing it at this time.

Though I would support adding term limits to it.

Yes, I would support repealing it.

However- to me, a much more important check we need right now is to limit the executive privileage powers. The president should not be able to hide anything, not even basic attorney client privilage. The abuse of this power is much worse than anything else we have with the branches of goverment and seperations of powers.

I found a related topic in the archives, and another closed as a duplicate, but that was long ago.

1) Should we repeal the Seventeenth Amendment? Why or why not?

Although I don't think it is the most pressing issue facing our nation, I would support repealing the amendment. The issue is whether Senators should represent their entire states (by statewide election), or their state legislatures. I tend to believe the House of Representatives should represent the People of their districts directly, while the Senators should look out for the interests of state governments in order to help maintain a reasonable balance of power between the federal and state governments.

I found these passages in F62 most salient, emphasis mine:

However, in repealing the 17th, we should also address the problems that it was designed to patch. The Wikipedia article describes how the system worked fine up to the Civil War era, when from 1850 to 1866 several states were left unrepresented in the Senate because their legislatures couldn't agree on a candidate. Also, there was an issue of corruption in the selection of Senators, and a concern about how the People of a state could directly vote on the removal of an incumbent Senator. So long as appointed Senators remained in favor with the state legislature, they effectively served life terms, so term limitations could solve that problem. John Stockton of NJ was also held up because he won a plurality, but not a majority, of the legislature; anyone who remembers the recent behavior of Texas Democrats illegally fleeing the state to delay more accurate redistricting can easily imagine what kind of disgraceful antics partisans might conjure to prevent an opposition Senator from getting appointed.

The 17th was the easiest way to resolve the myriad problems with Senate selection, but it probably wasn't the best. Still, I don't think we can merely tear off the 17th Amendment without stitching another patch in its place. The repeal of the 17th should include a two-term limit with an automatic recall vote (between the nominee and "no confidence") whenever the state legislature selects the same cadidate for a second term. The term limit would avoid much of the "cult of personality" that currently dominates the Senate, and the intermediate recall vote would allow the People to force the State legislature to choose someone else. Efforts by legislators to delay senate appointments beyond a deadline must also be addressed; perhaps it should be a federal crime resulting in immediate removal from office, and the open seat filled by appointment to serve the remainder of the term. Or something like that.

I hate to be pithy, but doesn't allowing elected politicians elect politicians just remove the people from the process that much further?

Tinkering with the Constitution seems like a risky proposition when all you are doing is turning over representation from an electorate constrained by a party-dominated process to politicians from those same political parties. It's nothing more than skipping the middle-man.

Exactly. That's why the framers liked their original version-- they wanted the House beholden to the People and the Senate beholden to state governments, who were beholden to the People. The 17th effectively removed the voice of state governments in the passage of federal laws, shifting the structure further away from a federation and closer to that of a monolitic republic.

And yet, the 17th itself was an exercise in tinkering with the Constitution that resulted in exactly what the framers were trying to prevent-- giving state governments no say in the passage of federal laws. The rest of the Constitution sets up the middle-man (state governments) as an important part of the balance of powers which shouldn't be lightly cut out.

If it's okay to cut out middle-men, then consider that all elected officials are just middle-men; cutting them out would result in either a direct democracy or a dictatorship, neither of which the framers wanted. The kind of limited government the framers were trying to construct might be described as a carefully-balanced arrangement of middlemen; cut any of them out like the 17th did, and the government gets out of balance.

You need to explain how state legislatures electing/appointing Senators stop the Union from looking like a monolithic republic; how a democratic process equals a monolithic republic, and how state legislatures appointing Senators will keep the same from bargaining for votes and selling their state's sovereignty for almighty pork because I don’t catch your logic. There is much more to the federal government’s expansion than the 17th amendment.

1) Should we repeal the Seventeenth Amendment? Why or why not?

I think we should. I don't see it ever happening, though. I think having Senator appointed by the legislature would do two things, both of them good.

First, it would allow for a more objective determination of who should fill those positions. Why don't we elect our diplomats? Because the thinking is that such a choice should be made objectively, not by popular vote, to help ensure the most qualified candidate is put there (yes, I know this doesn't really work in practice, but bear with me).

Second, I think doing so would actually make a Senator more beholden to the people, not less. If someone is not happy with how a state's Senator is performing, they could effect change at their local level (state legislator representative) because of it. Changing things at a local level is always easier than at a higher level. We've all seen the statistics on how hard it is to unseat an incumbent, particularly an incumbent Senator--it essentially almost never happens. When it does happen, it happens for national political reasons, not local. So, although Senators would be appointed, I think they would actually be more beholden to the will of the people were the original system put back in place. It would also create a more coherent structure in our entire governmental system...local elections would impact state council, which would then choose Senatorial representation at the Federal level. A more coherent structure would be more likely to effect a coherent strategy and plan at all levels. I think we would benefit greatly from that. Consider the issue of school choice/funding. Supposedly a local level, it is currently undergoing change at the federal level. Wouldn't it be better if local decisions were used to make state decisions, which were then put forward and discussed at a national level? A much more effective school choice/funding system would be the result, I think.

Finally, the general gist here seems to be that although we are more informed than ever before, we seem to have less and less ability to make good choices (again, consider the success rate of incumbents). It is far easier to make informed decisions at the local level. Also, our entire system is based on checks and balances. Senators and Representatives are essentially elected the very same way...no checks and balances. We were not set up to be a democracy, but to be a republic, and I think the decision to have Senators appointed rather than elected was part of this. I think it would serve us well to go back to that model.

I disagree that repealing the 17th Amendment will do anything to bring Senators closer to the people. The number of state representatives returned to office is just as high as the US Senate.

The real way that we can have accountability is to create an amendment like the 22nd and term limit the suckers out of office. That way the Robert Byrd's won't be around in office to torment the rest of the country for decades.

First, let me explain my terminology. I used the term "monolithic" a little too loosely-- when I said "monolithic", what I really meant was "simple", as used in F62:I'll use the terms "republic" and "representative democracy" interchangeably. I'll refer to the two basic forms of a "simple" republic as a "hierarchy" and a "confederacy". In contrast to either form of "simple" republic, the Constitution constitutes a "complex" republic in the form of a balanced federation.

In a "top-down" hierarchy, power is focused toward the higher levels of government and flows down to lower, more local levels, so that lower levels must submit to higher levels (the executive bureaucracy still takes this form, to an extent). The "pure" form a simple hierarchical republic would be a dictatorial democracy, where the People elect one dictator to lead an appointed bureaucracy until the next election. Multiple levels and branches of government with elected officials at each level is no longer a pure hierarchy, but is still a simple hierarchy as long as the higher (more centralized) levels have full power over the lower (more localized) levels.

In contrast to a hierarchy, a confederacy is organized as a "bottom-up" pyramid where power flows upward from strong, autonomous lower levels of government to a weak central government, in which each higher level must submit to the decisions of the next "lower" (more local) level. The "pure" form of a simple confederate republic would be a unicameral parliamentary system where the people elect Members of Parliament (MPs), then the MPs are responsible for all other decisions during their terms. Multiple levels and branches of government with elected officials at each level is no longer a pure confederacy, but is still simple as long as the higher (more centralized) levels are beholden to the lower (more localized) levels.

From 1777-1788, the Articles of Confederation organized the U.S. as a simple confederacy with a unicameral Congress composed of 2-7 delegates appointed by each State legislature, where each state's delegation cast one vote. Executive and judicial power flowed from legislative power, so there weren't three co-equal branches, but a simple bottom-up pyramid of power flow. By 1787, the states agreed that the confederation wasn't working out very well, partially because the Articles gave small states a disproportional vote with respect to their populations, and delegates weren't directly elected by the People. At the constitutional convention, instead of amending the Articles of Confederation as tasked, delegates ditched the Articles to constitute a new federation by combining aspects of both styles of simple republics into a complex balance between the extremes of hierarchy and confederation, through a multi-level, multi-branch republic "complicated" by a separation of powers, shared sovereignty, a system of checks and balances, and diversified accountability for government officials.

The Constitution struck a "balance" between a strong national government and strong state governments, as well as among co-equal federal legislative, executive, and judicial branches. Such delicate balances were to be secured by explicit "checks". The balance of shared sovereignty would keep the states relatively autonomous from one another and from the federal government, while allowing the federal government to have jurisdiction over a few issues that had caused the most trouble under the Articles. To help maintain the delicate balance of sovereignty, the framers intended state legislatures (the States) to check the legislative power of the federal government through their appointees to a bicameral Congress. Members of the House would be elected directly, proportional to population, so they would be beholden only to the interests of the People; whereas members of the Senate would be appointed to represent the interests and defend the sovereignty of State governments. From F62:In 1913, the 17th amendment decided that the role of state legislatures in appointing Senators had become more "injurious" than "beneficial". By abolishing the State legislatures' only check against Federal legislative encroachment on State sovereignty, the 17th brought U.S. government one step closer to a "simple" hierarchical republic the framers warned against. We're debating whether the removal of this check by the 17th was large enough or damaging enough to revive some form of the original check.

A democratic process does not equal a simple republic, but removing complexity does inherently simplify a complex republic to some degree-- not necessarily to any alarming extreme, but perhaps enough to throw it slightly out of balance in one direction or the other. By making both houses of Congress beholden directly to the People without institutionalized accountability to the interests of State legislatures, the 17th removed the role State governments were intended to play in the passage of Federal laws, tilting the structure of government more toward a simple hierarchy than the framers (federalists and anti-federalists alike) would have ever allowed.

In my opinion, the tilt introduced by the 17th is only enough to make a slight wobble in the wheels of government, which is why it wasn't repealed long ago. The numerical equality of State representation in the Senate still acts to prevent larger states from completely dominating smaller states, but that was only one part of the Senate's original purpose:The other intent, which F62 describes as the "complicated check on [Federal] legislation" by State legislatures, was completely amputated in 1913 by the 17th, and we'd probably be better off in the long run if it were restored, with enough care to avoid the nasty side effects that prompted its original enactment.

Some Senators would certainly continue to buy into the pork mindset, but if you compare pre-1913 pork to post-1913 pork, I believe you'd find a steep increase in pork post-1913. The primary reason for pork is bragging rights to curry favor with the general population in elections. When Senators are accountable to represent the interests of State governments and do not have to face re-election themselves, there tends to be less of an motivation among Senators to fight for pork, and more of an interest to keep the Federal government from encroaching on the powers granted to the State governments under the Constitution, often by opposing pork, even (especially?) in their own states.

Without the 17th, pork would continue to be a primary focus in the House, but much of it would be trimmed out by the Senate, so Representatives could still run on passing pork through the House, without their pork actually making it into law. The framers explicitly intended the Senate's motivations to act in tension with the House's motivations to help filter out the natural tendencies of both kinds of lawmakers:

Agreed; but the 17th did remove the fundamental check on Federal expansion that the framers intended the State governments to enforce through the Senate. Without Senators so willing to pass legislation encroaching on State powers, federal courts would have little means by which to uphold such federal laws and overturn state laws conflicting with them. Repealing the 17th only solves the inherent structural problems leading to federal expansion; a repeal would not erase the damage done by nearly a century of gradual expansion still on the books, and it would not necessarily generate the groundswell of public support that would be necessary to bring government back into reasonable balance. Repealing the 17th is merely one step in the right direction, not a panacea.

I believe a repeal of the 17th could simultaneously institute similar term limits in the process of addressing the various issues the 17th reformed. I wouldn't favor a repeal of the 17th if it failed to resolve prior problems with election of Senators by State legislatures.

1) Should we repeal the Seventeenth Amendment? Why or why not?
Yes repeal it. But, I'd put a little bit of a different spin on it. I certainly am not a historian; however, in my reading, I got the impression that there were two "big democracy issues" going on back then. The first is the common one, that the people get to choose to avoid autocrats. The second is more obscure and is a counter argument for too much popular vote, in the belief that the "mass populous" can get too carried away, and needs checks on itself. (The riots, etc., of the French Revolution, is an example of the latter).

I think we still have the "mass mentality" problem that needs checking, only now it is media "mass mania", that we let get out of hand, and essentially let popular voteing be little different than "selling soap and cars". For that reason, I'd like the 17-th Amendment appealed.

Perhaps if we truly had responsible education that would ensure that each and every one of us was very knowledgable of our "mass media" mentality reactions, and how to avoid and counteract them, then it would be OK to have direct popular vote of Senators.

But then, what's the real need of a Senate? Evereything I see could easily and more effectively be done by a unicameral congress. And we have several successful precedents to that effect!

Lek,

The Texas Legislature is due to adjourn until 2009 on Monday, May 28.

Lately there has been a fight among Republicans to remove Republican House Speaker Tom Craddick. While this political infighting is going on, bills passed by the state senate are just piling up in the house. You know, though, I quite enjoy watching Republicans chew each other up. It's far more entertaining than those dog fights in Daffy's thread.



http://www.star-telegram.com/448/story/111086.html.

Regardless of how we set things up under the constitution, we are not living in the 18th Century. Why would I want to give up voting on my U. S. Senators from Texas in favor of letting the clowns in our legislature choose one.

On the other hand, it’s possible, but I don’t think the legislature could have picked anyone worse than John Cornyn. In our case, it's just a matter of whether the people or the legislature would set the bar lower.

Actually BoF, this is the very reason for why repealing the Seventeenth Amendment has merit (IMO). It would place the focus squarely on the state legislature and how they conduct their offices. It would create a more efficient government at the state level because of their importance in electing Senators. The Senator was supposed to be the States' representative to the Federal government and the Representatives in the House were supposed to be the representative of the people in each district. A repeal of the 17th amendment would allow us to return to our federalist roots as the state legislatures would act as a check on the federal government. As it currently stands the people elect both houses meaning that there is one less check on the powers of the House and Senate.

Leder,

I don't understand your logic.

How would allowing an irresponsible body like the Texas Legislature to choose our U. S. Senators make the legislators more responsible?

My guess is the "Leg," as we call it, would be the same old Barnum and Bailey it has always been. Unfortunately, this goes back to days of Democratic control as well.