Defending The 17th
Why Would We Want Senators To Be Less Directly Accountable To The People?
By Dan McLaughlin Posted in Policy — Comments (45) / Email this page » / Leave a comment »
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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.
Conclusion
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.
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Defending The 17th 45 Comments (0 topical, 45 editorial, 0 hidden) Post a comment »
I would agree with that.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
Is that you overlook the purpose -- I would say the genius -- of the Federal system itself, to-wit: If you have States and the Federal government both trying to expand their power over the same people, they'll end up, perversely, having less.
The Senate's election method was designed to (1) keep a direct stake in the Federal government for the States, and (2) to help facilitate that clash of powers. The 17th amendment undid that, which is part of why States allowed the Federal government to arrogate so much power to itself (I would argue).
I could go on, but that's the opening salvo, and I'd appreciate your thoughts.
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Even those who learn from history are surrounded by those doomed to repeat it.
If you have States and the Federal government both trying to expand their power over the same people, they'll end up, perversely, having less.
Well, either that or we will end up with two big governments instead of one. I mean, I'm not unsympathetic to the critique, I just think that alt-histories aside, we are better off with the current system than with going back.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
One of the more fundamental modern conservative tenets is that government that governs less, governs better, and at any rate, governs less irritatingly. The Civil War didn't produce the kind of expansion of Federal power that the 16th and 17th Amendments did; without once engaging in "alt history," I think it entirely fair to note that both government sets governed less, rather than more, before those two amendments.
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Even those who learn from history are surrounded by those doomed to repeat it.
I agree that the government governed less before these two, although (1) correlation isn't necessarily causation - two World Wars, the Depression and the Civil Rights movement all had effects independent of the form of government and (2) the 16th is much more culpable. But my "alt history" point is, simply, that I'm more interested in discussing which system we should have today as opposed to trying to speculate what would have happened the past 93 years under the old system.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
I'm no great fan of game theory, but the situation as you describe it resembles how an economist recently described regulatory markets (like carbon or wetland credits) to me. In a three-way game with credit generators, credit purchasers, and regulators, there is a tendency for generators and purchasers to collaborate and push for lower standards which results in lower prices. They can game the system so that a market results in lower ecological quality rather than higher.
So you've got a three-way game here, too: federal government, state government, and electorate. Having the state government elect components of the federal government can encourage the two to collaborate and game the system against the electorate as easily as it can set them against each other, and arguably reduces the electorate's power to triangulate.
To a game theorist, it would just depend on how the incentives were initially stacked. I'd prefer to put more power in the hands of the electorate rather than to trust to the emergence of competition rather than collaboration between levels of government.
"In my youth, it was said that what was too silly to be said may be sung. In modern economics it may be put into mathematics." -- Ronald Coase
Good point. Don't forget, though, that gerrymandering already gives state governments disproportionate influence over who sits in the House.
"No compromise with the main purpose, no peace till victory, no pact with unrepentant wrong." - Winston Churchill
The deal I would gladly take is if the states give up gerrymandering in exchange for repeal of the 17th amendment. The House will be Congress of the electorate, and the Senate will be the Congress of the states. This truly helps to balance the governance between the large population and small population areas of the country.
You’re a persistent cuss, pilgrim.
John Wayne to Jimmy Stewart in The Man Who Shot Liberty Valance
Repealing the 17th would double that influence by extending it to the Senate. If it's already "disproportionate," two wrongs don't make a right.
"In my youth, it was said that what was too silly to be said may be sung. In modern economics it may be put into mathematics." -- Ronald Coase
I cannot really argue against the 17th Amendment because the states started the movement in the first place. A clear majority of them wanted Senators to be directly elected and the 17th Amendment just codified the practice being implemented by a majority of the states. Furthermore, having a majority of elected Senators while having some unelected Senators probably would have caused the elected Senators and probably the public de-legitimize the unelected Senators as not representing the public will. In my opinion, you have to either have appointed Senators or elected Senators, not both.
I also doubt the Senate would be as powerful as it is today if not for the direct election of its members. Two foreign examples prove this point. The Canadian Senate, which is currently unelected, has lost much of its power and now is nothing but a rubber stamp on the House of Commons usually. This probably will change if Prime Minister Harper gets his electoral and term reform plans passed. In contrast, the elected Australian Senate has been an effective check on majority power in the Australian House of Representatives. Constitutionally, all three Senates have similar powers with the US Senate being the only one with the power of confirmation of Executive appointments and impeachment. The other two have some form of being able to force elections.
One of the flaws I find with Americans involved in political discussions is a lack of knowledge about comparative politics. You can argue on philosophical grounds until you turn blue in the face, but having actual examples is better at convincing people.
From a comparative perspective, having a strong and elected upper house has public legitimacy and not a house of patronage. Our Senate serves as a valuable check and if it was not elected, quite possibly it would not have the public legitimacy to do so. In turn, the appointed Canadian Senate legally has powers similar to our Senate, but seeing it is appointed lacks the public legitimacy to act. I rather have an active Senate working as a check on the House, President, and Judiciary.
Come on... why does the 17th's ratification necessarily make it CORRECT and respectful of federalism? I don't understand.
Oh, and I don't buy your legitimacy argument. The masses seem to be nearly worshipful of the Supreme Court, going along with Nancy Pelosi's "God speaks" belief, and they're only indirectly representative of the people themselves.
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It is much more important to kill bad bills than to pass good ones. -- Calvin Coolidge
The Canadian Federal Senate is not appointed by the provinces. The members of the Senate are effectively appointed by the Prime Minister. So there is of course no way to prevent them from being a rubber stamp. The Commons controls the Senate. That is not what repealing the 17th would do. The equivalent would be instituting a system where the House (or more analogously the Speaker of the House) got to appoint members of the Senate at any vacancy.
So I don't think the fact that the Canadian Senate is rather anemic is a function of its appointive character - it is a function of who holds the appointive power. If provinccial parliaments or provincial premiers were to be responsible for the makeup of the Canadian Senate I think the relative influence of that body would increase.
I would argue the appointed nature of the Canadian Senate, not specifically who appoints the Senators, makes it weak. Right now, the opposition Liberal Party holds a clear majority of seats in the Senate, seeing Senators serve until 75, and they do not have a problem rubber stamping conservative legislation opposed by the Liberal members of the House of Commons. How can you explain members of the Liberal Party supporting a motion in the Senate while opposing it in the House of Commons.
Public opinion polls show consistently the Canadian people want their Senators either elected or the body abolished as a whole. Further, provincial premiers also have not asked for the power to appoint Senators in recent memory, but for them to be either elected or the body abolished.
My thoughts, for what it's worth:
Accountability: Personally, I think that a group of politicans who are informed, educated, and paid to do the job, is much more likely to hold a Senator accountable for his work, than any State electorate.
Spending: I don't think it's appropriate to use a particular policy position as a basis for designing the structure of our government. That porky 1% of the budget may be a fad concern now, but how we set up our Senate must be good for all concerns at all times.
Gerrymandering: I don't fear it, so I don't see this as a reason to keep the Senate perverted as it is today.
thanks,
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It is much more important to kill bad bills than to pass good ones. -- Calvin Coolidge
As for the state kickbacks, I don't see how this holds up. If the people are electing state legislators who want to raise federal taxes and send the money to the states, what's stopping them from electing US Senators NOW to do the same?
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It is much more important to kill bad bills than to pass good ones. -- Calvin Coolidge
On spending, I would also add that the biggest problem with Federal money is that it comes with hundreds of strings attached. The legislatures don't like this. If we take that money and remove the strings, we would all be better off... even if the same amount of money is going back to the states. The federal government funds projects that the states aren't particularly interested in, because the normal decision-making process (involving the legislature) is eliminated and replaced by a couple guys having their pet project inserted into a bill. So we build roads - but not where we need them. We spend money on transportation - but waste it on ineffective projects because that's where the free money is to be had.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
I'm in favor of repealing the 17th, provided two changes are made to the House first:
1) Restrict gerrymandering by the following device: no Congressional district shall be valid that doesn't cover at least half of the land area of the State that falls within the district's bounding box (the smallest rectangle that's made of due north/south and east/west lines that contains the district). This will disallow most of the horrible gerrymanders.
2) Put a cap on House district size of 50,000 citizens. Yes, this means the House would have over 6000 members. No, I don't have a problem with that.
With constitutional amendments put into place for both of these, the House would get back to its original function under the Constitution, and then I would agree that the Senate could then safely revert back to its original function.
Unfortunately I don't think either of these will ever come to pass, but I can always dream.
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Internet member since 1987
Member of the Surreality-Based Community
You really don't even need #1 if you have #2... the more districts you have, the more representative of the population they must be as a group, since they have to remain contiguous. That said, I don't have a problem with #1 either.
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Underlying most arguments against the free market is a lack of belief in freedom itself. - Milton Friedman
The smaller the district is, the harder it is to game the election. A swing of a few thousand votes becomes immensely more significant and impossible to predict. My concept is that a congressional district should be small enough that a potential candidate can introduce himself to a significant enough part of the district simply by going door-to-door in the district, which hasn't been able to be done for decades now.
As an example, New Orleans in the wake of Katrina would have had much better representation with a dozen congressmen, instead of just one with money in his freezer.
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Internet member since 1987
Member of the Surreality-Based Community
The makings of a deal for repeal of the 17th is for the states to agree to stop gerrymandering.
You’re a persistent cuss, pilgrim.
John Wayne to Jimmy Stewart in The Man Who Shot Liberty Valance
I opined on this topic a while back in the wake of the immigration debate. See here: Bring the Senate to Heel
My argument was built around the fact that Senators who were up for election in 2006 were more likely to vote against their party and in the interest of their constituents than Senators who were not. No surprise you say. Maybe not, but I see no reason why the Seante cannot be made to be more accountable to the people.
I proposed a new amendment to the Constution that would shorten a senator's term from 6 years to four and abolish the class system in which 1/3 of the Senate stands for election at a time.
The Constitution should be amended to reduce the term of a Senator from six to four years. Furthermore, the entire Senate should be up for election every four years, during the mid term election of a president's term. This can be done with the mid-term election immediately following ratification of the amendment. If this amendment were passed, the entire Congress would be up for election every four years, just as the executive is. Senators would be more accountable to the people but would retain the security of a longer term, relative to House members, with which to exercise their cherished "cooling saucer" function. Some might argue, an added benefit of having either half or all of Congress up for election two years out of four may be that the Congress would do less, and therefore do less harm.
Here is my proposal for wording the amendment:
Section 1
The term of office of a Senator of the United States shall, upon ratification of this amendment, be reduced from six years to four.
Section 2
All Senators in office upon ratification of this amendment shall be required to stand for reelection during the Congressional elections to be held at the mid-point of the president's term, regardless of their Senate class, and then every four years afterwards.
Senators were originally intended to represent the will of their states. Since the 17th Amendment, they no longer do that. With some notable exceptions, they have become like 100 mini-monarchs, willing to throw crumbs to the commoners one year in six, and doing as they or their party please the other five.
It's time for the people to reassert their ultimate authority over the Senate. Shortening a Senator's term would be a good start.
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Develop alternatives to existing policies and keep them alive and available until the politically impossible becomes the politically inevitable. Milton Friedman
If you want the Senate to have popular accountability and responsiveness, you might as well go all the way and make it more immediately responsive by ending the stability-engendering staggered, long terms.
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It is much more important to kill bad bills than to pass good ones. -- Calvin Coolidge
Isn't the proposal merely making another House of Represenatives?
And that's why I would oppose such a plan.
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It is much more important to kill bad bills than to pass good ones. -- Calvin Coolidge
tbaugh
I don't think its conceivable that the 17th would ever be repealed, but I do remember hearing Justice Scalia expressing the view in a speech somewhere that federalism is largely dead because of the 17th amendment.
I beleive that the Founders were brilliant almost beyond our ability to comprehend and that one messes with their creation at great peril. Thus I think the 17th was a horrendous mistake.
But having said that, that genie is out of the bottle and there is no going back now.
John
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Ethnic humor is part of human nature. The Dutch tell Belgian jokes. The Belgians tell French jokes. The French tell English jokes. The English tell Irish jokes. The Irish tell Irish jokes.
If Neal and I agree on something there MUST be something to our point. : )
Dan, I disagree on your point about accountability. Accountability to the people is the purpose of the house (and even that doesn't seem to work). The senate is supposed to be accountable to the states, not the people (directly or otherwise).
I can only agree with you in some way that in this modern age it would be hard to do. Most people have a sense of entitlement and would see returning the senate to it's historic role as an affront to their mob / populist mentality. I don't put you in this category by the way, but I think the masses fit this description.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe
but I think we'd have a permanent majority if it was repealed.
Oz
Re: 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
Since Parliaments are directly elected and therefore, in principle, highly accountable to the voters, why do you suppose this is the case?
A lot of parliamentary systems are often governed by pluralities or coalitions. In theory, a party with 30% of the vote can control the government in some nations. Britain is an example where 40% of the popular vote usually equals a majority of seats. Multiple parties lessens the number of total votes needed to win a majority of seats.
The United Kingdom isn't really a very good example for that. The severe disproportionality isn't the result of multiple parties itself, but the result of the single-member plurality electoral system and the different nature of British political parties in general. Because British parties are much stronger, more centralized and have more control over candidates than American parties, they are less porous and inclusive, therefore accept less internal diversity, leaving those groups which in the United States might incorporate themselves into a major party to form minor parties. These groups capture part of the vote and shrink the pluralities whereby candidates win. So while there are but two major, viable potential governing parties in the United Kingdom, Labor and the Conservatives, the persistence of minor parties coupled with a distorting electoral system leads to such, "manufactured majorities."
In countries that operate by party list proportional representation or the single transferable vote, the minor parties are better represented, but this generally creates the need for coalitions. Coalitions are not precisely pure expressions of popular interest since they demand compromises, but neither are their brutally undemocratic since some sector of public sentiment still elected their constituent parts.
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"The surrender of life is nothing to sinking down into acknowledgment of inferiority."
~John C. Calhoun
If the state legislatures elected Senators today:
Assume the 24 states with BOTH houses D elected two D Senators;
Assume the 16 states with BOTH houses R elected two R Senators (include unicameral Nebraska here);
Assume the remaining 10 states split;
Current US Senate would be 58-42 Democratic.
How did the statehouse selections take place before the 17th? If we assume the remaining 10 split-legislature states elect senators based on "one vote per legislator", the current US Senate would be 59-41 Democratic. (Delaware caused problems here, because there are equal numbers of R and D legislators if both houses are added up).
"In my youth, it was said that what was too silly to be said may be sung. In modern economics it may be put into mathematics." -- Ronald Coase
If anyone's interested, the 1866 statute establishing rules for electing a senator are here: http://img175.imageshack.us/img175/9973/senatorsjv7.gif
In short, each house nominates someone by a majority vote. If they don't nominate the same person (e.g., if there is a split statehouse) they meet the next day in Joint Assembly and do another vote as a body. So the party with the most overall members in both houses would win that vote. Assuming Delaware resolved its tie by civilly electing one of each party, the current balance would be 59-41 Democratic. Note that DE would be the ONLY state with two senators from different parties.
Having said that, a very small amount of reading reveals that the history of statehouse selection of senators appears to be absolutely RIFE with pluralities, gridlock, and empty seats with the utter failure to elect anyone for years at a time.
"In my youth, it was said that what was too silly to be said may be sung. In modern economics it may be put into mathematics." -- Ronald Coase
The 17th passed in the early 20th century. This law was from the Reconstruction period. Is this the final word on election of Senators? And if a repeal of the 17th were effected, there is no reason that this would be the law that would govern - a new statute would have to be created. And depending on how the repeal was worded one could argue that a federal law on the subject would questionable - why should Congress get to dictate to the states the manner in which they select their Senators?
Did that number crunching involve taking only the current (as in post-2006 election) legislative makeup? Let's not forget that Senators, regardless of what happens in their states in the interim, hold their offices for 6 years. So, the more accurate way to look at this is to see how the legislatures stacked up when each of a given state's seats was/is up for election. My guess is that the breakdown would be less dramatic, since any number of state legislatures have seen fluctuation in their numbers since any given senator was elected.
Not to mention that any legislature could (as they could have before the 17th) opt to institute a popular election. Or they could decide to split the seats with the Senate getting to name the occupant of one and the House/Assembly the other. You don't really know what the breakdown would be.
On top of that, there would be a dynamic aspect to this - if you knew that the state legislature was picking your Senators, you'd probably be paying more attention to state legislative races. While many here might be able to talk intelligently about their state legislators, my guess is that most voters have no clue who represents them in the state capital or what those people do. The fact is that most people focus on Washington as the center of government and totally forget or ignore that there are state laws tha taffect them.
Obviously there are caveats out the wazoo. The numbers reflected what would happen if a) all senators were elected at once, and b) all state legislators voted with their party in a supernaturally-well-behaved way. Very artificial.
And from the little research it seems that the 1866 federal law was imposed because there was huge chaos in the immediate pre- and post-Civil War senatorial elections that resulted in many vacant seats, and the fault (rightly or wrongly) was laid at the feet of the fact that states were picking their senators in a diversity of ways. Oh, for shame. Good excuse as any for the federal government to standardize. I'm not sure if its legality was ever challenged, but I used its election method because it's the one I could find.
It actually didn't solve the problem -- because it required a majority vote of a chamber to nominate, not a plurality, it guaranteed plenty of hung decisions.
I was just curious enough to ballpark the numbers. I think the takehome point is that given the current partisan makeup of our statehouses, the resulting senate might lean more Democratic than the one we have. Maybe. It would also seem much, much more rare to have two senators from different parties.
"In my youth, it was said that what was too silly to be said may be sung. In modern economics it may be put into mathematics." -- Ronald Coase
Senate elections got messy in some states particularly during the life of the American/Know Nothing party, naturally because having three significant parties throws off the majority rule our system functions best with.
Laws equipped to handle that surely aren't necessary, because those states aren't an equilibrium. The fall of the Second Party System was inevitable once the Whigs teetered. The only question was: would the American party replace it?
I bet if they weren't so anti-Irish they could have.
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It is much more important to kill bad bills than to pass good ones. -- Calvin Coolidge
The Senate was never quite so much the agent of the states as was seemingly intended because the state governments never had the power of recall or some other means to compel the actions of their senators, the length of senatorial terms and personal prestige relative to those of state legislators further insulated them from suffering for acting against their state's wishes. Besides that, many states had adopted schemes for public canvassing to choose senate candidates, the famed Lincoln-Douglas debates were carried out for this purpose.
Any reform of the Senate is impeded by the provision of Article V that no state may be deprived of its equal suffrage without its consent. I have sometimes looked to the German Bundesrat as choice for reform, which would entail making Senators instead the direct delegates of some officers of the state, such as the Governors and presiding officers of the most numerous branches of the state legislatures. Or simply a new amendment that restored elections to the legislatures, but added some means to coerce the senators to act in accord with their state's wishes. Either seems preferable to me as the current Senate redundantly represents the same interests as the House of Representatives, but with outrageous inequities in the constituency sizes of the various senators (Wyoming's senators may have fewer than two hundred thousand votes whereas California's senators have millions).
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"The surrender of life is nothing to sinking down into acknowledgment of inferiority."
~John C. Calhoun
it would only lead to worse things. If the States were to fight the feds for some power then it'd have some promise and be worth trying.
The problem with the 17th Amendment is that it broke the check that the states had on the federal government. This is not to say that the pre-17th Amendment constitutional setup was good; in fact, it was quite bad, because of one major flaw: legislatures suck at appointments.
In some cases, there was gridlock, resulting in a vacant Senate seat. (Delaware had a particularly notorious case around the turn of the century in which both of their seats were vacant for two years.) In other cases, the legislature turned over their responsibility to the voters, either through senatorial primaries or through direct elections that the legislature pledged to follow. Legislative appointment was already significantly eroded by the time that the 17th Amendment was put to the states.
Now, if we're going to discuss something as pie-in-the-sky as repeal of the 17th Amendment -- you're more likely to meet the actual Tooth Fairy -- we should do it right: a new 28th Amendment to have the governors of the states appoint their state's senators with the advice and consent of the upper house of the state legislature. Were this to be enacted, you would get some benefits:
Restoration of federalism. With the senators beholden to state officials for their jobs, it would become more difficult for the Congress to pass unfunded mandates or to use funding to coerce state legislation.
Erosion of the seniority system. One of the problems with the Senate is that it gives the most power to dinosaurs, such as Ted Stevens, Robert Byrd, or Ted Kennedy, who have been in office for decades. However, governors are somewhat less likely to vote for the incumbent simply because they recognize his name. Also, governorships tend to change parties rather more often than Senate seats currently do.
Now then, how does this suggestion fare against Dan McLaughlin's critique of 17th Amendment repeal? Taking the last point first, gerrymandering becomes much less of an issue. It still has some effect, insofar as we've still posited advice and consent by the upper house of the state legislature, but it is very attenuated.
Accountability is also improved against 17th Amendment repeal. Since there is ultimately one person responsible for the senatorial appointment, and that person is voted on by the state electorate, he can be punished for poor picks and receive benefits for good picks.
The one critique that still has bite is the one on spending. The incentive for senators to "pay back" his gubernatorial appointer by sending money back to the state will still be quite strong. The best check against this abuse would be the President and the US House of Representatives, which means that the gerrymandering issue in the House still needs to be addressed.
are in 1 respect the same as the prospects of a deal with repeal of 17th. In either case the deal is that the states must be willing to give up gerrymandering House districts. For the extra power the Senate seat gives them it should be an agreeable tradeoff. I will believe it when I see it.
You’re a persistent cuss, pilgrim.
John Wayne to Jimmy Stewart in The Man Who Shot Liberty Valance
My original argument for repealing the 17th included the caveat that the states' governors be given the power to fill any vacancy in a Senate seat, to avoid the stalemate vacancies; but sure, why not go all the way and give it to the governors outright. I'd support that proposal.
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Internet member since 1987
Member of the Surreality-Based Community
I think either the repeal of the 17th OR gubenatorial appointment (a 28th) would do the trick. I would support either one too.
Too bad neither has much traction.
"Greater is an army of sheep led by a lion, than an army of lions led by a sheep" - Defoe
Many states had passed laws to allow popular vote of Senators before the 17th Amendment was passed.
Repealing the 17th Amendment would put the power back to the states and let each state handle it in the way that its citizens want.
Repealing the 16th and 17th are goals than any Federalist and Libertarian should be for.
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is Federal mandates on the states and the federal taking of powers that properly belong to the states. In this area, I believe that election of Senators by the state legislatures might be preferable. In this case, the constiuents of the Senators would be the state governments, who I think would frown on new Federal mandates.