April 26, 2004
Repeal the 17th?

Apparently, Tom DeLay supports repealing the 17th Amendment, which allowed for the direct election of Senators.

During the House debate last week over reconstituting Congress in the event of a terrorist attack or natural catastrophe, House Majority Leader Tom DeLay (R-Texas) seemed to come out against the 17th Amendment, which authorized the direct election of U.S. Senators.

“I would argue that it’s had a negative effect on this country,” said the Texas Republican, who has never been a huge fan of the way the Senate operates anyway.

But DeLay isn’t really against the 17th Amendment, is he? He doesn’t want to return to the pre-1913 era, when Senators were elected by state legislatures, sometimes under some very questionable circumstances?

It turns out that he does. DeLay “shares a similar position with [former Nixon White House counsel] John Dean, [Sen.] Robert Byrd (D-W.Va.) and several Founders who have monuments around this city,” said Jonathan Grella, DeLay’s press secretary, naming other prominent Americans who support the Constitution’s original method for choosing Senators.

I'm more puzzled by this than anything. While the Senate itself is non-democratic for any number of reasons, how is the election of individual Senators anything but? And how would indirect election via state legislatures help? As this New Yorker article on redistricting notes, the Senate is probably a truer representation of the will of individual states than the House is.

Senate races, which are not subject to redistricting, are decided by actual voters, who do indeed change their minds with some regularity. Control of the Senate has shifted five times since the nineteen-eighties. The House, by contrast, has changed hands just once in the same period, in the Republican takeover of 1994. In 2002, only one out of twelve House elections was decided by ten or fewer percentage points, while half of the governors’ and Senate races were that close. In 2002, only four House challengers defeated incumbents in the general election—a record low in the modern era. In a real sense, the voters no longer select the members of the House of Representatives; the state legislators who design the districts do.

On the other hand, I suppose that answers the question about why it's appealing to Tom DeLay.

But don’t expect DeLay to be seeking to overturn the 17th Amendment anytime soon.

“If you can’t redistrict the Senate, this is the next best thing,” Grella joked.

Jokes aside, I'm curious. Does anyone reading this think the 17th Amendment was a bad idea and should be repealed? If so, why? I must say that this is one of those things that had never really occurred to me.

Thanks to AJ Garcia for the link.

Posted by Charles Kuffner on April 26, 2004 to Show Business for Ugly People | TrackBack

Every article I've ever read about this (and there haven't been many) spoke approvingly of that Amendment for giving power to the voters, rather than state legislators. The prevailing opinion seemed to be that most state legislatures were machine-run at the time, and thus the US Senate had been controlled by the machines as well.

Posted by: Linkmeister on April 26, 2004 7:26 PM

I'm not a hardcore advocate of repeal of the 17th Amendment, but no, I don't think the notion is nutty. The topic is something that came up in various graduate seminars in political theory (and more than once in a constitutional design seminar).

Linkmeister: Sounds like you've been reading Progressive historians and their progeny (most historians, actually). That is how their conventional wisdom tends to go. :)

Posted by: kevin whited on April 26, 2004 9:06 PM

OK, Kevin, but why? Why is the old way better? That's what I'm trying to understand.

Posted by: Charles Kuffner on April 26, 2004 9:27 PM

I have been leaning toward this view (appeling the 17th admendment) for a couple of years. It would force those who would pay for votes in senate to 'buy' the majority of the legislators in two thirds of the states (and hopefully make it extremely expensive to persaude the senate.) But along with that I would also do away with the present state bound house represtive model and go the nation wide proportionate representives (This would hopefully create new parties and a more dynamic politic) I would keep the electoral college but require apportioning the electors according to the states vote (such that if prez contender A got n Persentage in the state that he would get n Persent of the Electors of that state.

In short this would mean the states would be represted by the Senate and the people of the US would be represented by the House in a truly representive manner, a proportional manner. (I am a dreamer what can I say) This would take one heck of an admendment to the constution though.

Posted by: HinderLands on April 26, 2004 10:32 PM

The U.S. Senate has become a sad shell of what once fancied itself, with some justification, as the world's greatest chamber for debate. Almost no real debate goes on anymore. Instead, it's 100 potential Presidential candidates vying for TV airtime. (What else would Hilary Clinton have found to do with herself for eight years while tuning up for her own White House run, after all?)

Perhaps the state "political machines" have indeed lost their power over Senators, but given the cost of modern Senate campaigns, they've surely been replaced by shadowy figures that are perhaps even less accountable to the voters. And even the old metaphor about the Senate being the saucer to cool the fiery temperatures of the House coffeecup isn't much true anymore, although the Senate still manages to be, in general, more obstructive to progressive ideas and the chamber that's more efficient at obstructionism generally.

In theory, originally, the state legislature constituencies, proportionally greater power of small-population states, and longer six-year terms were supposed to buck up the Senators' political courage to "do the right thing" even when that's the unpopular (or anti-populist) thing. But genuine profiles in political courage have become awfully hard to find in the modern Senate.

However, I'm not sure that returning selection of Senators to the state legislatures would solve any of the Senate's current problems. It would, perhaps, slightly tip the federalism balance marginally toward the states and their legislatures from where it is now. But that's awfully hard to predict, and there's far from broad agreement — in either major political party or any philosophical camp — that such a tipping would be a good thing.

It's essentially a moot question; repeal of the 17th Amendment just ain't gonna happen. But even if one takes the question seriously, and despite my lack of admiration for what the Senate has become, I can't muster much enthusiasm for making such a huge structural change without a more compelling reason to do so and a clearer crystal ball as to where it would in fact take us.

Posted by: Beldar on April 27, 2004 12:20 AM

That's a tough one. I can see advantages and disadvantages to it, but as others have pointed out, it's moot. There's no way that any movement to take direct electoral power away from the voters, to take away a small-d democratic process away from the electorate. Besides, in about 215 years, only one amendment (prohibition) has been expressly repealed by subsequent amendment.

Though I do think people need to be better educated in the fact that we do NOT live in a "democracy" and that not everything was intended to be, or should be, determined by a winner-take-all majority vote of the entire electorate. Every time I hear people say we live in a democracy, I want to cringe.

Posted by: Tim on April 27, 2004 9:06 AM

Pardon me for changing the subject, but...

"DeLay 'shares a similar position with... several Founders who have monuments around this city.'"

Didn't a lot of those guys own slaves, too? A fine, old-fashioned idea, that.

Posted by: Grumpy on April 27, 2004 10:43 AM

I know it's not really the reason why it is being proposed, but back in the late 80's the general argument was that a repeal of the 17th amendment would refocus public attention on local races and improve turnout because of the sudden import of local races. I don't think they ever made a firm connection between repeal and increased attention in local races, but it's the one I remember best.

Posted by: mattH on April 27, 2004 1:09 PM

Kevin: "most historians, actually"

Well, yeah. Other than Howard Zinn, historians often draw on their predecessors' work, right? ;)

Posted by: Linkmeister on April 27, 2004 1:47 PM

I think the main benefit to repeal of the 17th ammendment would be to eliminate unfunded mandates to the states and a return to a stronger Federalist system.

Can you imagine a Senator elected by the state legislature voting for example to hold federal highway money hostage to the states passing a 21 year old drinking age?

To me, the Senate has become much more partisan in the past decade and, as Beldar said, full of Presidential candidates. The repeal of this ammendment would refocus attention on the state legislatures.

I have seen this topic several times in the past 6 months, but, since any ammendment would require 2/3 of the Senators to agree to turn their future over to their state legislatures, I can't imagine a fantasy world in which this would happen. Afterall, how could HRC been elected Senator under the pre-17th procedure?

Posted by: RL on April 27, 2004 3:00 PM

I'm still not satisfied with the reasons being given. Personally, I blame the "hundred Presidential candidates" syndrome on the proliferation of mass media. And besides, didn't Senators run for President before the 17th? How many times did Henry Clay run for President?

Personally, I think if Senators were appointed by state legislatures, given the nature of most state Leges these days, you'd get a hundred Senators who were partisan tools. Having to appeal to a state's entire population gives most Senators at least some moderate, centrist sensibilities.

I appreciate the feedback everyone's given, but I must say it's only served to convince me that the 17th was indeed a good idea.

Posted by: Charles Kuffner on April 27, 2004 3:29 PM

I'm still not satisfied with the reasons being given.

Then how about this: Maybe DeLay was so satisfied with how the state legislature, through gerrym^H^H^H^H^H^H redistricting, was able to give the state legislature more power to control who wins in the House this year, that now he wants to do that with the Senate as well?

Posted by: Tim on April 27, 2004 6:56 PM

For decades the Federal Government has been taking over tasks that the states should be doing themselves. If the 17th Ammendment were repealed it is likely the Federal Government and taxes would get smaller and the state government and taxes would increase. It pushes government towards a more local, more responsive level. The House of Representatives should represent the people (on a very local level) and the Senate should represent the State. To get a law passed both should agree.

With the 17th Ammendment the state governments are basically outside the system looking in, begging for table scraps and highway funds.

Posted by: ruprecht on May 10, 2004 3:49 PM

ruprecht said it best. The 17th amendment eliminated the only direct voice that state governments had in the federal government. The 17th amendment forced state governments into the margins and paved the way for expansion of federal government power. Now they are forced to work almost exclusively through the judiciary branch, and their elections are often ignored by the populace (governors still have some attention). Essentially, it greatly weakend the check and balance of state's power over the central government, and if there's one thing we've learned about democratic government in the past 200 years it's that without checks and balances power is rapidly centralized, usually to the detriment of the country. I'm not just talking about America here either.

State's rights got rather a bad name in the slavery and Jim Crow eras, and even now raise hackles over things like gay marriage. But it should be noted that these civil rights issues are no less contentious even if moved to the federal level, and are usually resolved by the SCOTUS anyway. The approval of the 17th had nothing to do with rights or values, and everything to do with alleged corruption. Even then, the country got along fine for a century without it, and the amendment wasn't passed until it was heavily promoted by the Hearst Empire in the heyday of yellow journalism. And although the amendment was supposed to prevent corruption, it has arguably only moved it around a bit, and made the races more expensive.

I think repealing the 17th would go a long way to restoring some of the checks and balances in the system that have been steadily eroded, and greatly improve the ability of the states to operate and the importance of their legislatures. If they wanted to, individual states could elect their senators directly, but even then they would probably feel more beholden to their state's interests. Elections would be just as contentious as ever, and the media wouldn't change a bit. Policy making would become more state-centric, and political movements would have a much harder time imposing law at a nationwide level. The balance of power over issues would not change much.

The one exception (and it's a critical one) would be over environmental, land, and water issues. These are unique in that they are a conflict between local economics and nationwide health and identity, via pollution control and wilderness and park preservation, with no constitutional opinion over them. In particular, air and water pollution don't stop for state lines and have long-term effects. So ironically, repeal of the 17th may force the creation of a new amendment estabilishing some degree of long-term environmental protection and resource management.

Posted by: cryptoc on November 18, 2004 3:32 PM

The 17th amendment should be repealed. see http://www.articlev.com/repeal17.htm

Posted by: John MacMullin on December 11, 2004 5:07 PM

For a long time I viewed the passage of the 17th admendment a bad idea. I believed that the state governments gave up what power they had left. I still beleave that it should be repealed or a new one allowing three senators from each state to be appointed. One by the state senate, one by the state house and the last one by the governor. That way in conjunction with the house would balance out the power and give everone concerned a voice in our federal government. If the federal government is supposed to be so powerfull how can three fourths of the states vote to abolish or change the federal gov without the federal gov's approval or imput.

Posted by: Steve Hiott on June 30, 2005 2:08 PM