Following the US Senate’s failure to pass a bill repealing Obamacare, former Arkansas governor Mike Huckabee decided that the Senate would do a better job if the 17th Amendment were repealed. Huckabee took to twitter and said:
Time to repeal 17th Amendment. Founders had it right-Senators chosen by state legislatures. Will work for their states and respect 10th am[endment.]
Huckabee, of course, is referring the Constitutional amendment that altered the method by which US Senators are elected. Prior to the Amendment’s passage in 1913, Senators were — at least in theory and on paper — selected by the state legislature in each state. Since the amendment was adopted, Senators are selected via popular vote in each state.
The response to Huckabee’s very brief missive was fairly predictable. Reactions ranged from pearl-clutching horror at Gizmodo to Allen West’s declaration that repealing the Amendment would force Senators to take marching orders from state legislators.
History suggests, however, that a repeal of the 17th Amendment would not lead to nearly as big a change as these commentators seem to think.
Indeed, the rather stark juxtapositions of the pre-amendment Senate with the post-Amendment Senate rather over-simplify things. In practice, the selection of Senators was varied and included a mixture of practices, some of which gave more power to the legislature than others.
While it is true that repealing the amendment would grant greater freedom to states in their selecting of US Senators, repealing the amendment won’t necessarily revolutionize the Senate.
First of all, it’s important to note that under the pre-amendment Constitution, many states had already worked out de facto popular election of US Senators even before the Amendment had been adopted. As noted at mises.org in an article titled “Decentralize the Elections“:
While the [original text of the] US Constitution says the state legislatures shall elect the US senators, it does not say how that should be done. For example, must candidates for US Senate receive a majority of legislative votes or will a plurality do? Can those senators be recalled by the legislature? The US Constitution is silent on this. Moreover, in practice, states were free to pass their own state laws creating popular elections for senators that were then binding on members of the state legislature. By 1912, the last election before the adoption of the 17th Amendment, a majority of states employed de facto popular election of US senators.
Ralph Rossum at the Heritage foundation has explained the process in a little more detail:
What happened is that the people in most of the states gradually turned to nonbinding primary elections to select their Senator; state legislators promised to vote for the Senator that the people had selected in this “advisory” election. This “advisory” election had real teeth because many state laws provided that candidates for state legislator had to sign pledges (which were placed on the ballot) that they would promise (or refuse to promise) to vote for the U.S. Senate candidate that the people had selected in their nonbinding election. If the state legislative candidate refused to sign the pledge, the people would vote against him, and so the Senate gradually became populated with people who were, in effect, selected by popular, direct election.
Thus, Allen West’s idea that state legislators would be running around recalling “misbehaving” Senators is only supported by some historical experience. Moreover, there’s no reason to believe that a Senator would be recalled based on a single vote on a single issue. Personal loyalties, party politics, and local political considerations have always gotten in the way of the idea that state legislators would dictate to US Senators as to how to vote.
States Should Have Total Freedom to Appoint Senators as they See Fit
The fact that repeal of the Amendment would give greater discretion to the states themselves has always been the strongest aspect of the repeal movement. In this, however, straight repeal is too weak and ambiguous when it comes to empowering the states in relation to federal power. The US Constitution has always placed far too many restrictions on how states govern themselves, and this includes the mandate that state legislators appoint US Senators. In fact, states should have the prerogative to appoint Senators in any way they see fit, whether that be popular vote, appointment by the governor, appointment by the state’s supreme court, or some other system entirely. Senators could be chosen by lottery. Certainly, random selection is unlikely to produce Senators who are any less craven and unethical than the current bunch.
Those same Senators should also be subject — contra the US Constitution which forbids this — to recall elections at any time.
There Should Only Be One Senator per State
Simple repeal fails in another way as well. A fundamental problem of the Senate has long been the fact that Senators do not vote as representatives of a state delegation, but as independent legislators. This reality has long obscured the fact that the Senate was intended to be a council of the states and not simply an “upper house” of a national legislature. There is, after all, already a legislative body at the federal level where legislators from a single state can vote against each other and act independently. It’s called the House of Representatives.
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The fact that each state has two independent legislators in the Senate, however, sends the message that Senators are really just older, richer versions of members of the House of Representatives. Thus, under the current system, when Senator A from State X votes yea or nea on a measure, it is seen simply as the preference of Senator A. Senator A’s vote may in fact be canceled out by Senator B’s vote from the same state. This is one of the many ways that the current US Constitution is inferior to the older constitution now known as the “Articles of Confederation.” The older version granted votes only to delegations and not to individual members of Congress. Thus, the status of the United States as a collection of member states was reinforced.
The status quo should be abandoned in favor of allowing each state delegation only a single vote in the Senate, and that vote should be interpreted as the member state’s position.
Now, I’m not naive enough to think that Senators will actually vote with the ordinary people of their states in mind. Nor do I think it would be remotely possible for a Senator to truly “represent” the interests of millions of diverse human being from that state. All the fundamental problems behind representative legislative bodies would still remain in our new reformed Senate.
What this change would do, however, is emphasize the fact that the United States government is a collection of member states where it is recognized that each member state has a distinct set of preferences and interests.
The Real Problem Is Ideology
It should always be remembered, though, that structural reforms such as these are really only small potatoes when compared to the dominating problem of ideology. No constitutional reform by itself will be sufficient so long as a majority of voters and politicians believe that government institutions should be centralized and powerful.
Indeed, those in favor of repealing the 17th Amendment often engage in a post hoc ergo propter hoc fallacy when they assume that the 17th Amendment is what caused the centralization of greater power in Washington. The success of the 17th Amendment was a symptom of the then-popular desire to take more power away from state governments. (These ideas remain popular today.) The Amendment didn’t cause the ideological shift. It was a result of it. The fact of the matter is that for the past century, many voters and most political elites have truly believed that a strong centralized government is superior to a weaker decentralized one. Reformers at the time really did believe that shifting greater power to Congress would magically eliminate state-level corruption. It’s not a coincidence that these reforms were occurring at the same time that reformers were also calling for a national police force —that eventually became the FBI — to supersede local police forces.
Nor is there any reason to believe that the state legislators — the people who would presumably be selecting the Senators in a post-17th-Amendment future — would suddenly become ardent localists and advocates for greater state autonomy. It’s very likely most state legislators value decentralized state autonomy in about the same proportion as the ordinary voters who elect US Senators today.
The government we have today reflects these ideological realities, and to undo the problems that many modern opponents of the 17th Amendment see, the task is far greater than they think. The answer lies in truly changing the minds of the majority of Americans, including the elites. Once that change occurs, it won’t really matter how many Senators there are, or how how they get elected.
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