Repeal the 17th Amendment

In 1913, the states ratified the 17th amendment, which transferred the responsibility of electing Senators from state legislatures to the people at large. It ought to be repealed.

In the original Constitutional structure, the Senate was designed as a dignified counterpart to the rowdy House of Representatives, comprised of elites skilled in the business of governance and able to take responsibility for complicated long-term or politically dangerous tasks such as making treaties or impeaching the President. To accomplish this mission, the Senate was giving two shields against popular passions allowing them to pursue the common good – the first being six year terms, and the second that they would be elected indirectly by state legislatures, not the people.

Starting with the populist movement in the 1880s and continuing into the progressive era of the early 20th century, indirect election of Senators began to be seen as untenably undemocratic. They charged the Senate as being corrupt, out-of-touch, elitist, and aristocratic, leading to passage of the 17th amendment in 1913, which birthed our modern system of direct Senatorial elections.

Direct election of Senators hasn’t fixed the body. The 60-vote threshold to overcome the filibuster makes it extremely difficult to pass legislation, and it’s still an undemocratic body, giving the 700,000 residents of Wyoming as much say in who sits on the Supreme Court as the 40 million people in California. Also, since the Senate over-represents rural areas, which tend to vote Republican, conventional wisdom holds that Republicans have a structural advantage in the body (though the historical record says otherwise).

Various solutions have been proposed – statehood for Washington DC and Puerto Rico, merger of the Dakotas, abolition of the filibuster, or neuter or abolish the Senate altogether. I have a simpler solution – if you want the Senate to work the way it was supposed to, return to the electoral system which was designed to accomplish that. Direct election of Senators creates a perverse incentive structure which undermines the Senate’s role as the more dignified House of Congress.

The effect of the amendment on Senate membership was complicated. The body looked significantly different in 1920 after the amendment had gone into full effect than it did in 1910 before its ratification, but most states had at least one Senator carry over, and some Senators just retired. Most of the powerful Senators, such as Henry Cabot Lodge from Massachusetts or Bob LaFollete from Wisconsin, were untouched by the amendment.

The changes can be explained by political factors beyond the amendment. Republicans had a large majority in 1910, got crushed in 1915, and then came back to take decisive control of the chamber by 1921. This was partially due to fallout over World War 1, but also because prior to the Supreme Court decision Reynold v Sims in 1964, state legislative districts could be “packed” – they were not required to adhere to the principle of “one person one vote.” States could create a state legislative district of 100 people and one of 100,000, which had big effects on the makeup of the Senate to the benefit of the Republicans in 1910. This was gerrymandering on steroids, and it can explain the post-amendment shake-up in the Senate, more so than the amendment itself.

The point I’m making is that repeal of the amendment, especially after Reynolds, would probably not change who’s in the Senate very much. Repeal of the 17th amendment isn’t going to result in the New York legislature throwing Chuck Schumer out of Washington.

However, it does change the incentive structure. No longer are Senators trying to please hyper-partisans voters with only a cursory knowledge about actual policy. In order to keep their jobs, Senators need to please state legislators who have an interest in concrete accomplishments, as well as protecting the state from an overbearing federal government. This would help check the growth of the federal government as well as allowing Senators to make the difficult choices it was created to.

Think about Ben Sasse, an anti-Trump Republican Senator from Nebraska who’s up from re-election in 2020. Because he’s running at the same time as Donald Trump, who won Nebraska by 25 points in 2016, and they are elected the same way, he’s put in a bind where he must either be Trump friendly or likely loss his job. In that place, how can he be expected to act as a check on the President in any meaningful way? Returning his dependence to the state legislature and not on the average voter, who already have Representatives, gives him the necessary freedom of movement to pursue the common good.

It would also make the Senate more competitive and more dynamic. It is difficult for a party to amass large majorities in the Senate (Republicans haven’t had more than a 5 seat majority in the chamber since 1930), which makes overcoming the 60 vote threshold for a filibuster extremely difficult. Also, since the Senate over represents rural areas, which favors Republicans, this puts Democrats at a disadvantage. (This point can be overblown, Republicans have controlled the chamber just 28 of the last 86 years, and Democrats had a filibuster proof majority in 2010.)

State legislatures, which are more malleable, could correct this. Let’s say hypothetically, each state where one party controls both houses of government gets two Senators, and divided states get one. Because state legislatures swing more between parties, this would prevent long-term Republican dominance of the chamber as well as allow for parties to amass larger majorities. In 2009, when Democrats had complete control of 27 state legislatures and partial control of 8 others, they could’ve walked away with a 62 seat majority (they had a 60 seat majority.) In 2017, when Republicans completely controlled 32 state legislatures, they would’ve received 65 seats, as opposed to the 51 seats they had at the time, and would be much more able to “get things done.”

The Senate doesn’t need to be reformed. It needs to be returned to its original structures, where shielded by state legislatures, they could function as a distinct legislative body with their own responsibilities. The first step is to repeal the 17th amendment.

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