Defending The 17th

It's a hardy perennial in the more philosophically-oriented conservative circles, despite its manifest political infeasibility: the argument that the Seventeenth Amendment should be repealed or should never have been passed. While this argument does have its virtues, I disagree. Regardless of whether it was a good idea at the time, repealing the 17th Amendment today would only weaken the mechanisms that are essential to conservative policies and conservative philosophy. Specifically, restoring to state legislatures the power over the election of Senators would make the Senate less directly accountable to the people and insulate the federal courts even further from public accountability, would increase rather than decrease state spending of federally-raised revenues, and would increase the importance and influence of gerrymandering over public policy and electoral politics.

Read On...

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.

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.

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.

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.

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.

“Specifically, restoring to state legislatures the power over the election of Senators would make the Senate less directly accountable to the people and insulate the federal courts even further from public accountability, would increase rather than decrease state spending of federally-raised revenues, and would increase the importance and influence of gerrymandering over public policy and electoral politics.”

Oh yes, I have always found pompous arse long-term US Senators to be ever so responsive to the Conservative Base. Most State Representatives, Senators and Governors... many whom live in our communities... have to run in shorter duration cycles than those in the elite class of Senator. We ALL know that they just ignore our input and do exactly what they want to do... NOT! These people are more approachable and feel pressure applied... pressure that that cannot be exerted in DC. I KNOW this part of his argument is as bogus as ‘toon carrying a Bible! I always wondered why that Bible ‘toon carried did not burst into flames?

LLS

‘During a speech in New Hampshire in February of 2007 Paul called for a repeal of the 17th amendment, the same that allows for direct election of U.S. Senators. Instead Paul would have members of state legislatures vote for congressional senators as they had done before. Paul believes the purpose was to increase representation of State interests at the federal level, an effect Paul believes encourages greater sharing of power between state and federal government. Paul believes greater state participation would act as a check against a powerful federal government.’

Repealing the 17th restores a long over abused balance between Fed and State power. The Senate was to be the States voice in Congress where the House was the People's voice.

It's part of the puzzle as to how things have gotten this screwed up to begin with.

Note: the authors statements are similar to those voiced by the Democrats in doing away with the Electoral College. Another really BAD idea...

The author does make some good points. It is true that merely repealing the seventeenth amendment would be a bad idea, and for the reasons he listed.

The goal should not merely be the repeal of the seventeenth amendment, which effectively made senators representatives with six, instead of two year terms. Repeal of the seventeenth should, of necessity, include the repeal of the sixteenth. The seventeenth renders the federal government unaccountable to the state governments. The sixteenth renders the federal government dangerously independent of the state governments.

Many conservatives pronounce the need for a national sales tax with a repeal of the sixteenth amendment. I disagree. We should return to a proportional payment system that worked so well before the national income tax was implemented. Under this system, California represented by 55/435 in the Federal legislature would be responsible for 55/435 of the Federal budget. While Wyoming, with it’s proportionately smaller representative to population ratio would be responsible for 3/435 of the federal budget. How each state would raise the revenue would be up to the state.

The effect of the proportional payment system, regarding the repeal of the sixteenth and seventeenth amendments would be that state legislatures would place pressure on their U.S. Senator to reduce the federal budget. A large federal budget would mean local politicians explaining high taxes to local constituents. It would lead to more budget accountability not less. States would also be able to place more pressure on the federal judiciary, for the same reason. Local politicians would not want federal judgements that would raise national taxes.

This system worked well for over one hundred years and would work fine in the here and now.

The seventeenth and the sixteenth are the mistake. Eliminating one only remedies part of the problem, and may exacerbate the other.

We should return to a proportional payment system that worked so well before the national income tax was implemented. Under this system, California represented by 55/435 in the Federal legislature would be responsible for 55/435 of the Federal budget...How each state would raise the revenue would be up to the state.

When was this "proportional payment system" by state ever in use? The federal government raised its revenue primarily with tariffs prior to the income tax.

Nicely written and argued article, but the author is simply wrong. It is exactly because I expect politicians to be greedy and power-hungry that I believe the election of Senators should be in the hands of the state legislatures. Why? Because even a state like mine, overrun with insanely left-wing freaks in the legislature, would fight against many of the federal power grabs if for no other reason than that federal power grabs inevitably steal power from the States, and no state legislature would want to lose power.

Currently, state legislatures, especially those which like to practice socialism in their own state, are hurting for money to fund their own state initiatives. Does anyone believe, for instance, that California, with its lefty legislature and RINO governor trying to pass state-wide socialized health care, would be willing to let the federal government take money from them for any reason? Any federal bill would have to pass both houses, and any state legislature-elected Senator would be forced to vote down bills which take money from "rich" states like California to give to other states. As it stands now, federal Senators have no incentive to avoid passing all kinds of bills which unfairly burden some states, or screw all states equally.

Tariffs did not raise the entire amount, and anything not covered by tariff was payed this way.

I realize that we live in a world where free trade has become a necessity. A national tariff would invite problems for us, even if we should level a tariff against anything made in China. So we would change a bit with the times. Ultimately the federal government would have to be more responsive to the state governments, unlike the current arrangement, with the state governments being mere puppets on a string.

Only by repeal of both amendments (since they were a package deal), would we truly return to Federalism.

The Senate should represent the interests of the States, not the Federal government.

Note: this topic is from December 2006.

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.

Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.