Repealing the 17th Amendment

Over at National Review, George Mason University law professor Todd Zywicki makes the case for repealing the 17th Amendment and its direct election of U.S. senators:

The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty. To this end, the Framers provided that the power of various political actors would derive from different sources. While House members were to be elected directly by the people, the president would be elected by the Electoral College. The people would have no direct influence on the selection of judges, who would be nominated by the president and confirmed by the Senate to serve for life or "during good behavior." And senators would be elected by state legislatures.

Empowering state legislatures to elect senators was considered both good politics and good constitutional design….

The Seventeenth Amendment ended all that, bringing about the master-servant relationship between the federal and state governments that the original constitutional design sought to prevent.

Read the whole thing here. Fox host Judge Andrew Napolitano made the case for repealing the 17th Amendment to me earlier this year.

Comments

[Jersey Patriot]

Two-thirds of the states had direct election of Senators prior to the 17th Amendment's enactment. Repealing the 17th would change nothing, because no state legislature would abolish direct election. Any state that proposed it would be accused of being against democracy.

For libertarians, this is a fart in a hurricane. It wouldn't improve things one iota.

[robc]

Constitution (pre XVII) doesnt allow for direct election of Senators.

The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.

They **MUST** be chosen by the legislature. Any state that had direct election of senators was in violation of the constitution.

[Brendan Perez]

The states could amend their respective Constitutions to require that the legislature choose Senators based on the results of a popular election.

[Anonymous]

And that would be the States' prerogative, as it was before; not that of the Federal Government.

[au contraire]

no state legislature would abolish direct election

Ask anybody, even voters who voraciously follow national politics, who their state legislators are and you will probably get a blank stare. State legislatures have been reduced to non-entities for most of the public and are usually elected by a tiny number of people who have a particular reason to pay attention to the state government.

Election of US Senators by the state legislatures would change all that and the state legislators know it. Even though they realize that they would be smeared as being anti-democratic for repealing the 17th, the incentive is so high they might do it anyway.

[Robert]

Around here they as likely know their state assemblyman or state senator as they do their Congressman.

[Wesley]

JP,

I agree completely. The article's author mentions this in the last paragraph, but he kind of breezes over it.

As during the era before the Seventeenth Amendment, many states would probably adopt either de facto direct election of senators, in which legislatures essentially agree to ratify the popular vote...

This is exactly what would happen. And it would be hammered as undemocratic. It's a nice idea, but both politically impossible and ineffective.

[Jeffersonian]

I've seen one rebuttal to this that said it wouldn't make that much difference as a number of states had already implemented selection of Senators via popular vote prior to the A17. It's a good point, but it also means that along with repeal of A17, states need to claw back the power to elect Senators via legisltures.

[Gene Berkman]

There is no reason to believe that having Senators chosen by state legislatures would increase the power of the states or decrease the power of the federal government.

When state legislatures chose Senators, people who wanted to be elected to the Senate made campaign contributions to candidates for state legislature, and national party committees intervened in state elections as well, for the same reason.

Repealing the 17th Amendment now would probably increase the tendency of federal polticians to intervene in elections for state legislature, and further nationalize the power of the parties.

Of the currently elected Senators, it is likely that only Rand Paul would be denied election by a legislative body.

[Robert]

It may have made a difference then, but selection of US senators by the state legislatures now I don't think would be an improvement, or make much difference at all. This one's been bandied about for many years.

[Pro Libertate]

The 17th should be repealed. We need more checks on federal power, not fewer. Making the Senate a body beholden to the states does just that.

Today, if the Constitution were amended, I think plenty of states would end direct election of senators. While we're so inundated with the idea that the highest ideal is democracy (as opposed to liberty) that this might be hard to sell at first, I think the feeling that the federal government is out of control is great enough that any reasonable check has a chance of winning votes.

[Silentz]

One of the political ads here in Colorado had the obligatory ominous music and scary voice telling us that "Ken Buck wants to take away your right to vote" because of his stance on repealing the 17th. I thought heck...now I want to vote for him even more. It's unfortunate that no one really knows the history or meaning of the Constitution anymore...

[Public School Teacher]

Teaching the Constitution would just confuse the children

[Alert observer]

Attempting to teach the Constitution would just confuse more than a few public school teachers.

[Jim]

All the anti-Buck ads had the opposite of the intended effect on me.

[robc]

Constitution doesnt give them the choice of direct election, it REQUIRES they be chosen by the legislature.

[Pro Libertate]

I don't think it says how the legislatures have to choose them, though. An election is one method.

[Barry D]

Hmmm... I suppose that some legislatures where the fundamentalist religious right dominates might choose them by lot. And in Illinois the governor would just have an auction.

Yeah. Lots of improvement there.

[EscapedWestOfTheBigMuddy]

As long as the resulting Senators are corrupt in a different way than the US Representatives it is an improvement.

[Pro Libertate]

That's kind of my thinking--competing corruption.

[RyanXXX]

It's interesting that the reformers who pushed the repeal used "democracy" as a way to strengthen the Federal State, thereby neutering the people

[Matt]

Is somebody going to go ahead and take the lead on getting an Article V convention to propose amendments together? What is everybody waiting for? Republicans to be in charge of more state legislatures?

[Barry D]

Terrible idea. Really dumb.

Why? States are the only political boundaries in the US that can't be gerrymandered! Senators are some of the few politicians -- and the only representatives in DC -- that are elected, in any true sense.

http://pajamasmedia.com/zombie.....ering-101/

[Tony]

That's a good point, and it's a pity that they're so unrepresentative by being two to a state, be it Montana or California.

[Paul]

Personally, I don't see a problem with the two-to-a-state issue. That's what Congress is for. Representation apprtioned based on population. Senators are supposed to represent the state as a whole, and therefore Montana can keep California in check, whereas California gets to roll over Montana in Congress.

[cbmclean]

Quick terminology check:

Congress includes is made up of both the House of Representatives, and the Senate. Sorry if you were being sarcastic or something.

[EJM]

FYI, from Wikipedia...

In the early 1900s, Oregon pioneered direct election of Senators. Oregon tried various procedures until success in 1907, and was soon followed by Nebraska.

[...]

Increasingly, Senators were elected based on state referenda, similar to the means developed by Oregon. By 1912, as many as 29 states elected Senators either as nominees of party primaries, or in conjunction with a general election. These de facto directly elected Senators supported legislation to promote direct election, but to make direct election general, a constitutional amendment was required.

The Senate had consistently rejected the proposed amendment, and so direct election advocates acted through the states. Amendments to the Constitution are normally proposed by Congress, a two-thirds vote of both Houses being required. However, under Article V, two-thirds of the states may apply for the creation of a convention to propose amendments and the Congress must then create one.

By 1910, almost two-thirds of the states had called for such a convention, which put pressure on the Congress to propose the amendment and eliminate the need for the convention.

(On a semi-related note, see also the "Advocacy for prohibiting gubernatorial appointment to the Senate" section.)

[Steven Smith]

You guys are pulling out one of the big guns from George Mason, the poor man's Oral Roberts U. Considering that Prof. Zywicki drafted one of the dumbest, most poorly thought-out laws of the century, the 2005 Bankruptcy Act, I have no doubt that if the 17th Amendment were to be repealed, federalism would in fact be destroyed, not strengthened.

[Episiarch]

STEVE SMITH HATE GEORGE MASON U! STEVE WENT TO WHATSAMATTA U, BIG RIVAL OF GEORGE MASON! RAPED BULLWINKLE AND ROCKY THERE! STEVE CAPTAIN OF VARSITY RAPE TEAM!

[Tulpa]

I didn't know Yetis preferred ad hom attacks.

[Public School Teacher]

They'll rape an ad hom just as easily as they'll rape anything else.

[STEVE SMITH]

THAT IS FAKE STEVE SMITH! REAL STEVE SMITH LOVE GET ORAL FROM ROBERT!

[Tulpa]

Point of interest: things weren't all hunky-dory back when Senators were elected by state legislatures, either. The supporters of direct election back in the early 20th century were not just a bunch of morons -- there were clear abuses in that system they wanted to correct, that we are not as intimately familiar with here 100 years later.

This may be another case of the chicken being greener on the other side. Or whatever it is.

[Pro Libertate]

Our system has always had flaws due to its over-dependence on the kindness of strangers. But that's inevitable until we have benevolent robot/alien rule.

Until then, more checks on federal power are more betterer.

[Barry D]

I fail to see how this is a check on Federal power. States like Idaho or Montana would elect those who favored limited Federal government, and states like California and New York would elect those who favor unlimited Federal government. Whether the election happened at the polls or in the Legislatures would not change a thing.

[Pro Libertate]

The states have no direct voice in the federal government now. None. With legislatively appointed senators, they would. While it might not be a perfect check on all possible federal abuses of power, it certainly would be a check when state and federal interests are not the same. Which frequently happens now, but the states don't have much recourse.

[Barry D]

You're assuming that the people of the state have no reason to care about the interests of that state. This seems most unlikely.

Also see my post above re gerrymandering...

[Pro Libertate]

I'm not assuming anything except that I'd like more checks on federal power.

[Barry D]

You need to re-read your own post. You wrote that states have no direct voice in the Federal government.

That could only be true if you assume that the residents of a state don't care about the interests of the state, and therefore cannot be considered to be a "voice" for the state.

[robc]

Lots of residents dont care about the interests of the state.

They dont care about unfunded mandates, just as long as they get their XXX, whatever it is. The legislature cares about the process.

[SCOTUS]

"While it might not be a perfect check on all possible federal abuses of power, it certainly would be a check when state and federal interests are not the same. Which frequently happens now, but the states don't have much recourse."

True dat.

[Robert]

If you wanted the states to have a direct voice in the federal gov't, you wouldn't want to merely repeal the 17th amendment, you would also want to abolish their 6 year terms and have them serve at the pleasure of their respective states.

[Barry D]

Oh, I'm sure that the supporters of direct election back in the early 20th century were a bunch of morons. And so were its opponents.

Why do we assume politics have changed?

(Further evidence that people were morons at the time: Wilson was elected in 1912, took office in 1913, and was re-elected in 1916 on the slogan "he kept us out of war!")

[Nor West]

He did. US didn't get into WW1 until 1917.

[Nor West]

...which is not to say there were no morons in the electorate, or the Congress...

[Barry D]

I understand that. But the only reason the US got into that pointless war was Wilson. And I doubt he was a completely changed man a few months after his second inauguration...

[Tulpa]

You know, politicians lied back in 1916 too. It's not a new development in human affairs.

[Barry D]

That's true. And people who cheer for them were morons then, just like now.

That was my point.

[Turd Ferguson]

I mean aren't all the state legistlators just a bunch of suckups who are trying to make their way tot he federal level. Why would they curtail their future power/piss off the people they want to emulate.

[MNG]

Why in the world would we think state legislators would have better discernment of the public good and even state needs than the actual friggin' public? Libertarians often note that elected officials make poor representatives of public needs, why would this be different?

[anon]

Federal Mandates.

[Barry D]

Some state legislatures like Federal mandates. Some don't.

The state's general population? Same deal.

Not seeing a difference.

[Ken Shultz]

I'm actually a fan of repealing the 17th amendment, but rather than wait for that to happen, I think it might be more reasonable to count on the Singularity or Jesus coming back...

Seriously, we can't get our politicians to cut entitlement spending! Let's see if we ever learn how to walk before we start working on our strategy for the next marathon.

[Paul]

What libertarians should be fighting for is adding to the list of direct elections the czars of all the large federal agencies.

To be duly elected by ballot, the directors of the following agencies shall answer to the people:

EPA
CIA
FBI
FEC
Homeland Security
FCC
FDA
FAA

(and so on)

[Paul]

Certainly any regulatory agency. You could argue that the FBI and CIA could be exempt.

[Barry D]

And you have to add some things to the ballot.

Yeah, libertarians are probably thinking, "None of the above."

I think we also need the following:

...and the outgoing incumbent shall be:
1. Shot at dawn
2. Imprisoned for life
3. Retired without a pension and banned from all government positions
4. Retired with a pension and banned from all government positions.

...and/or the agency shall be:
1. Disbanded
2. Cut to 5% of its current size.
3. Cut to 50% of its current size.
4. Left in place.

[Juice]

I agree. The Secretary of State and the Attorney General at the very least should be elected at midterms.

[IceTrey]

Repealing the 17th wouldn't have much effect without also repealing the 16th. When the states are once again responsible for the federal budget they might have a different outlook on the election of Senators. What we really need is a whole new Constitution the old one is just too flawed. These should be the first Articles of a new Constitution:

Article 1

No person, group of persons, or government may initiate force, threat of force, or fraud against any individual's self or property.

Article 2

Force may be morally and legally used only in self-defense against those who violate Article 1.

Article 3

No exceptions shall exist for Articles 1 and 2.

[Barry D]

True. Problems with Federal power have a lot more to do with the abuse of the power of the purse than anything else.

E.g. Federal speed limits cannot be enforced. But Federal tax dollars can be withheld from states (AFTER the states' residents have paid them) if states fail to comply.

That matters many orders of magnitude more than direct vs. indirect Senate elections ever could.

[Paul]

Alternate proposal:

Article 1

Keep your hands to yourself

Article 2

When the need arises to reach into someone else's pocket, refer to Article 1.

Article 3

Go away.

[Preston]

The point that has not been up yet is the biggest reason why the 17th amendment was passed was because of the immense and ridiculous amount of time it took for state legislatures to come to a consensus on picking a senator. The State houses, which typically met for a short session every year, would be forced into incredibly long and drawn out sessions to try to pick a senator.

Because there was no set upon process for nominating candidates, it became riddled with corruption and fraud. The easiest way to gain a majority of votes to become a senator was to simply buy off more than half of the legislature.

We're not going to repeal the 17th. While Senate nominations would certainly be more open and transparent today than 100 years ago, before blogs and cable news, it still would be a very imperfect system. Direct elections are bad, but nomination through the legislature is worse.

[EJM]

Just in case, to quote another section of the Wikipedia article linked above (footnotes omitted)...

Election by legislatures generally occurred without major problems up to the mid-1850s. There were frequent vacancies of a few days up to several months, but these nearly always occurred when Congress was not in session. In the 1850s, the sectional crisis over slavery led to increasing partisanship and strife. As a result, Indiana failed to elect a Senator from March 1855 to February 1857, while California failed to elect one from March 1855 to January 1857.

California had previously failed to elect from March 1851 through January 1852, missing two months of the first session of the 32nd Congress, while Delaware failed to elect from September 1839 to January 1841, missing the entire first session and half the second session of the 26th Congress.

After the Civil War, the problems multiplied. In one case in the mid-1860s, the election of Senator John P. Stockton from New Jersey was contested on the grounds that he had been elected by a plurality rather than a majority in the state legislature. Stockton asserted that the exact method for elections was murky and varied from state to state. To keep this from happening again, Congress passed a law in 1866 regulating how and when Senators were to be elected from each state. This was the first change in the process of Senatorial elections. While the law helped, there were still deadlocks in some legislatures and accusations of bribery, corruption, and suspicious dealings in some elections. Nine bribery cases were brought before the Senate between 1866 and 1906, and 45 deadlocks occurred in 20 states between 1891 and 1905, resulting in numerous delays in seating Senators. In the worst case, Delaware failed to elect from March 1899 to March 1903; by the end of this period both of Delaware's seats were vacant for two years.

[Paul]

The point that has not been up yet is the biggest reason why the 17th amendment was passed was because of the immense and ridiculous amount of time it took for state legislatures to come to a consensus on picking a senator.

Hmm, so you're saying government moved very slowly...experienced a lot of 'shut downs' etc... *scratches chin*

[joshua corning]

If you are going to talk about hair-brained crazy ideas you may as well talk about cutting up Washington, Oregon and California into smaller states.

You would probably get better popular sentiment for it then some idiotic idea like repealing constitutional amendments that would decrease voter representation.

Why the fuck does Maine get the same senate representation as California?

[Spoonman.]

Or Texas, for that matter. Though I think it's fairly good for Texas to be a big-ass state, so that the rural crazy and urban crazy gets about balanced out.

[IceTrey]

How would it decrease voter representation. After all the people vote for the members of the House, who are called REPRESENTATIVES! What the 17th does is decrease the States representation.

[Direct Democracy]

The assertion that individuals electing senators is "direct democracy" is ridiculous. Direct democracy is where everyone votes on every issue, the mere idea of other people "representing you" is contradictory to democracy as an idea.

[Paul]

Well, yeah, direct democracy writ-large, sure. But we're all pretty much on the same page as far as representative democracy. Which is what we have for some part.

Where I've argued we've faltered is the regulatory agencies which can create defacto law, but aren't directly accountable to the people. And because they're so far removed from the people, the idea that we can vote out Senator Cantwell because she voted "yes" on the confirmation hearings for Consumer Protection Agency czar blah blah... it's to laugh.

Reason has suggested that lawmakers should vote on every piece of regulation passed by each agency. While I agree with this because it sends a huge fuck-you to congress, and forces them to confront head on the sheer volume of regulations passed outside the legislative process, I would seriously settle for the heads of the agencies to no longer be appointed by the President, but voted on in national elections.

Therefore, at the end of the director's term, the people may express their view on how the agency operated overall by re-hiring or firing said director.

[Tony]

So what is the point of this bullshit again?

Does it ever occur to repealers to study the original intent of these amendments?

The 17th was a rare state-led amendment process. The states were not finding the status quo effective, and were favoring direct election. We want to return a power to the states that they passed a constitutional amendment to take away from themselves? (It wasn't actually a state convention that passed the amendment, but the threat of one that pressured the Senate into acting, led by Senators who had been elected by de facto direct election in their states.

The explanation of the failure of state legislator appointments? That the selected were "corrupt pawns of industrialists and financiers." Thankfully, senators are no longer like this.

[Tony]

I would totally support repeal, by the way, if the 17th did what it was meant to do: further remove senators from the burden of campaigning and pandering so that they could focus on the complexity of governing. But that didn't work out as planned.

[Tulpa]

Or we could make the task of governing far less complex for the poor dears by only having them fuss over the powers granted to the federal government in Article I Section 8.

[AlmightyJB]

Incumbents have such a distinct advantage under the current system, they would never allow any such change to occur.

[Bill Walker]

In 72 comments, including the author not one person has mentioned the fact the states have already applied in sufficient number to cause an Article V Convention call. See http://www.foavc.org.

When is everybody who talks about all these reforms finally going to wake up? Don't they realize every time I or someone else points out the fact they say they want an amendment then don't mention the states have already applied for the amendment in sufficient numbers to cause a call, or that they have already applied for that amendment, that it wrecks their creditability? People don't tend to believe people who miss giant facts like what they say we should have, has already been done.

[Lester]

The 17th is working better than the old system in three ways. 1. There is now no need for the referendum process to determine who the official / correct Senatorial Candidates are when a whole group of them have been sent by the same corrupt Legislator who was bought off (bribed) by these five or six people who wanted to be the Senator. 2. When a question of whom the correct Senatorial candidate came up, it was left up to the people in mass through the referendum process to have the last say. The referendum was a part time 17th Amendment and the 17th is the referendum process on a full time basis. 3. The 17th brings the government closer to the people on a full time basis where as the referendum did it on a part time basis. Via the 17th, more power and say-so is now in the hands of "we the people" on a full time basis, and not just in a selection crisis only.

After the 17th was ratified, candidates started spending large amounts of money to advertise their political positions to the voters, to which many complained. Thus campaign finance reform was introduced. Make no mistake about it, people being people will find the loopholes in any process. It is just part of the territory and to be expected.

I clearly see the need for the 17th, simply because of what the original metastasized into. The old system morphed from a 6/10 level into a 2/10 condition, and then the 17th replaced it with an 8/10 system.

By these numbers, you can see that neither one is a perfect 10/10.

As to the question: Are ANY OF the representatives and Senators serving the will of the people? Depends on Fred (he is a people too) who you are talking with and how he sees it. If Fred DID NOT vote for that person, Fred will probably say that Representative or Senator is incapable of doing anything right. If Fred voted for that Representative or Senator, most likely Fred will say they can do nothing wrong. LOL. And so it goes.