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A Return to the Bad Old Days

There’s a move afoot to return selection of U.S. Senators to state legislatures. Those who support such a shift seem to have forgotten that the nation is both a republic and a democracy.

March 7, 2014

Pity the 17th Amendment. It gets no respect. Not only was the 100th anniversary of its adoption largely ignored last year, but 2014 brings fresh calls for its repeal.

For those who can’t just rattle off the constitutional amendments, a refresher: the 17th Amendment provides for the direct popular election of U.S. Senators. Prior to its adoption in the spring of 1913, Senators were selected by state legislatures.

In the last five years or so, roughly contemporaneous with the emergence of the Tea Party, a growing number of politicians and scholars have begun calling for the eradication of the amendment. Prominent politicians, jurists and thinkers, from Sen.Ted Cruz and Justice Antonin Scalia to Sen. Mike Lee and conservative columnist George Will, have either backed the amendment’s repeal or sharply criticized it. The two current candidates for lieutenant governor in Texas also supported its repeal, before they didn’t.

This month, National Review columnist Charles C.W. Cooke unleashed the latest salvo on the democratic election of senators. The amendment is an “ugly violation” of the spirit of the Constitution. It injured a fundamental structural element of our government. Cooke argues: “To ensure that they had a working mechanism by which to resist the expansion of federal power, the architects of our Constitution hard-wired the state legislatures into its structure; with the 17th Amendment, progressives pulled out that wiring like punch-drunk Jacobins.”

Defenders of the amendment, Cooke believes, are democracy fetishists who fail to grasp that America is a republic.

If there was even the remotest chance that the amendment would be revoked, it would be easy to dismiss the repeal movement as yet another cynical effort to ensure Republican domination of the Senate. Given the current partisan divide in the state legislatures, picking Senators the old-fashioned way would mean a 13-seat Republican pick up in the chamber and likely a semi-permanent majority. (See chart)

But no one really thinks the amendment will be stripped from the Constitution. So it’s worth examining the psyche of this mini-movement. What does it say about our current understanding of American democracy?

The intellectual underpinnings of the repeal movement seem to rest on two intertwined concepts: one, that America is not a democracy, but a republic; and two, that a federalist system which gives strong weight to states’ rights is a critical means of maintaining liberty. The concepts are not new, but the surge in hostility toward a 100-year-old amendment probably lies in the extraordinary resentment of the Affordable Care Act felt by a large segment of the population. The anti-17th Amendment movement can be seen as a cousin of the neo-nullification movement—making headlines this week in South Carolina (again!) where the state Senate is debating a toned-down version of an anti-Affordable Care Act bill.

There’s some odd thinking going on here. (Not in South Carolina but about the 17th Amendment…well, yes, in South Carolina too, but that’s another column). Supporters of the amendment’s rescission seem to think that if we just alter how Senators are elected, from millions of people to a few hundred, then they will be more likely to represent “states” not pesky people.

Now, I don’t know about you, but I’m not entirely sure how to know what a “state” wants. Unless state legislators have special access to a secret cave in their home state where they can listen to oracular pronouncements from their state’s spirit, then best I can tell state legislators speak for the state because they are elected by the people from the state.

When, through most of the 19th century, state legislatures had the opportunity to express their state’s will in selecting Senators, they did not cover themselves in glory. Bribery and intimidation were semi-regular occurrences. Deadlocks were common. The state legislature of Delaware was at such an impasse that the Blue Hen state had no Senators for four years from 1899. In 1850, Indiana’s legislature deadlocked and failed to send one of its Senators to Washington for two years. Overall, from 1891 to 1905, there were 45 stalemates that significantly delayed the selection of Senators.

The problem was so acute that by 1912, a year before passage of the 17th Amendment, 29 legislatures had tossed senator selection to popular referenda. They let the people vote for Senator, and then the legislature ratified the election. Incidentally, as Slate columnist David Schleicher points out, the historical evidence seems to support that prior to the 17th Amendment, state legislative elections turned into polls on who the legislator would select as Senator, effectively nationalizing local elections and hindering effective state-level governance.

Repealing the 17th Amendment isn’t going to fix anything that’s wrong with our democracy (or is it republic?) or with our federalist system. One hundred Senators are not going to magically inhale the spirit of their state in lieu of irritating human politics. Because, here’s the secret: state’s rights are protected by the structure of the Senate itself, two Senators per state regardless of population and a filibuster rule (still in place for legislation). Indeed, with the filibuster Senators from 21 states representing less than 10 percent of the population can block all legislation. Oh, and there are court challenges too. Let’s not forget that part of the Affordable Care Act was struck down on federalism grounds.

Something else is going on here, though. A deep dissatisfaction with democracy or democratic results. A yearning for republican governance—wise men (a few women might sneak in) and structures that defy popular will and protect minority rights. I get it. Some people really are unhappy with the Affordable Care Act. But specific policy battles are not going to be won (or forestalled) by magic wand changes to government structure.

Finally, let’s get one thing straight about republics versus democracies. In the modern era, both of them rely on the consent of the governed expressed via elections for their legitimacy. Everyone who has governing authority derives his or her power via election. He or she was either actually elected or was appointed, hired or confirmed by someone who was. The legitimacy of our government flows only via elections. Telescoping that process with senators, taking one step out of the process (i.e. eliminating state legislators’ role) was a smart move 101 years ago.

So call me a democracy fetishist. Though as fetishes go, it seems rather…boring.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.