It sure looks like the summer of 2010 is destined to be remembered as the time when everyone seemed to want to get themselves some Constitutional amending. And I’m not talking about your garden-variety balanced-budget amendment or flag-burning amendment or school prayer amendment or line-item veto amendment or any of the other 75 or so amendments that have been proposed in the 111th Congress. I’m talking about stuff like repealing the 14th amendment. Can’t say I saw that coming!
Still, repealing the 14th amendment makes for a boring discussion, because it quickly devolves either into an immigration debate — in which the probability of someone saying something new or interesting (minimal) is only slightly greater than the probability of anyone revising their opinion (infinitesimal) — or, even worse, a debate about race, in which both probabilities are highly likely to be exactly zero.
The same cannot be said for the idea of repealing the 17th amendment, which provides for the direct election of United States Senators. Unlike the 14th amendment, it makes for a rather interesting topic of conversation: it’s not exactly well-worn territory, so there are a lot of fresh thoughts. It doesn’t inherently evoke any partisan or ideological emotions, so people are often willing to think about it at face value. And since the 17th amendment is a purely structural amendment — a decision about how the basic framework of the national government should be constructed — it’s right in the wheelhouse of anyone who spends their free time thinking about the institutional design of the United States Senate (ahem).
Without further ado…
Here’s the existing 17th amendment, which was ratified in 1913:
The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
That’s a long way of saying “Senators shall be elected by the people, just like Representatives. If a vacancy occurs, it can be filled temporarily by a governor appointment or election, whatever the state legislature prefers.”
If the 17th amendment were repealed and no new text was proposed to replace it, the system of selecting Senators would revert to the original text of Article 1, section 3, clause 1 and 2 of the Constitution, as adopted in the 1780’s:
The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote. Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.
That’s a long way of saying “Senators are chosen by the state legislature. If a vacancy occurs when the legislature is out of session, the Governor can appoint temporary replacement until the next session of the legislature.”
The Repeal Argument
The major arguments in favor of state legislature election (and therefore repeal) are varied, but ultimately boil down to some variation of either (a) enhancing federalism, or (b) insulating Senators from popular opinion.
The theory here is simple: if the state legislature elects the Senators, the Senators will be less likely to trample on the interests of the States, namely the relative power of the state government vis a vis the federal government. This is good, the theory goes, because federalism is mostly good but mostly gone: the federal government has grown too powerful. Senators would be less likely to approve policies which burdened the states, such as unfunded mandates, and would think twice about enhancing the power of the federal government at the expense of the states.
Insulating Senators from Popular Opinion
The argument here is that the Senate would function either better — or at least closer to the Founder’s intentions — if Senators were less beholden to short-term public opinion. Undoubtedly, the Founders intended the Senate to be less responsive to public opinion than the House; thus the 6-year terms and legislature election (which implied not only distance from the voters, but also a lack of the need to campaign). Senators would then be more free to use their best judgment, even if that meant taking unpopular positions.
The Direct Election Argument
The major arguments in favor of direct election (and therefore against repeal) tend to focus on the same issues that produced the 17th amendment: rampant corruption surrounding the Senate and Senate elections, the problem of empty seats in the Senate, and various amorphous arguments about “democracy.”
Reformers thought that direct election would both reduce direct corruption of Senators (by, say, the Sugar Trust) and altogether end corruption in Senate elections. Both seemed to be a problem during the 19th century. Senators themselves knew that their electoral fate was largely out of their hands. If their party kept control of the state legislature, they needed only to minimally keep the state and local officials happy in order to fend off any intra-party challenges for their seat; if the opposing party took control of the legislature, there was virtually nothing they could do to save their seat. Therefore, only the most egregious corruption scandal could affect their chances. Game on. The elections themselves featured vote-buying in the state legislature that ranged from unseemly (think gratuitous political horse-trading) to outright illegal (think bribery).
Avoiding Empty Seats
Although the corruption has captured the imagination of the historians, the original impetus in the 19th century toward direct election was the empty seat problem. Since the original Constitution specified that the state legislature would select the Senators, and all but Nebraska had two-chamber legislatures, it was possible for there to be a deadlock if the two chambers could not agree on their selection. This occurred with some regularity; there were several dozen deadlocks (lasting from a few weeks to several years) in the 20 years prior to the amendment, and Delaware went the entire 57th Congress (1901-1903) without a Senator in either seat.
Amorphous ‘Democracy’ arguments
For many people, more democracy equals good and less democracy equals bad. I don’t put much stock in this argument, since it’s theoretically just instrumental and empirical disproven (I feel) in some cases. But many people are naturally attracted to it, and it’s not the worst rule of thumb one could come up with.
Nine things to think About
In no particular order, nine thoughts I have about the relative merits of legislature vs. popular election. I take no strong position on the matter. As you’ll probably divine from these thoughts, I’m against a repeal of the 17th amendment. But I do not think, as some do, that it is an inherently crazy idea. I can see the appeal, and there certainly would be some positive benefits (imagine a world with no Senate campaign ads!).
1) Would repeal even work? One problem with a lot of scholarship on the effects of the 17th amendment is that it’s not the neat little natural experiment that a lot of researchers think it is — you can’t just look at some variable before and after and hope to see differences. And that’s because of the Oregon Plan. Many states (starting with Oregon) had set up systems by which direct election was already in place, with a popular vote as either a primary to select the candidates for each party, or as an actual semi-binding directive to the legislature regarding who should be selected.
I would imagine that contemporary repeal of the 17th amendment would be followed by significant pressure in many states for the legislature to simply adopt direct election, much the way that every legislature has adopted popular election for Presidential electors (the last state to do otherwise was South Carolina, which had legislature election of Presidential electors through 1860). It’s not obvious that you could solve this by repealing the 17th and putting something in its place — you could force the legislature to vote, but could you really prohibit it from taking a non-binding popular directive?
2) The empty seat argument is important, but maybe not as important as it was 100 years ago. I suspect that the modern mass media, 24-hour news cycle, and focused attention on the Senate would greatly reduce the possibility of deadlocks, as well as the duration of deadlocks that did occur. It seems almost unfathomable that a state could go an entire Congress short a Senator. There would be far too much pressure on the legislature to act, and far too much retribution in the following state election cycle, I would think. Remember, the old system existed prior to the one-man, one-vote ruling in Baker v. Carr (1962), so many state assemblies were quite strikingly malapportioned and many state Senates were drawn on geographic lines, completely ignoring apportionment. That is not the case now, and thus the electoral connection is probably much stronger, at least latently, for something like this.
3) How relevant is the corruption argument? On one hand, I can’t imagine that corruption of individual Senators would return to late 19th century levels were direct election repealed. As with the previous point, times have changed. Corruption laws have been strengthened, disclosure laws are rampant, and the media is apparently a much better and closer watchdog. Still, the corruption argument as it applies to the state legislatures is certainly a worry. Consider the events every time a governor makes a replacement appointment. Even when there is no evidence of any corruption (say, Gilibrand’s appointment by Patterson), there are rumors of unseemly horse-trading. And the Blagojovich/Burris nonsense in Illinois shows how ugly it can get before it even moves out of the legal gray area. It’s not easy to stomach the possibility of corruption scandals that implicate the buy-off of 20 or 30 or 50 state reps in a single state.
4) Enhanced state legislature races? One nice side effect of indirect election of Senators is that it might get people thinking harder about their choices for representatives in the state legislature. If the ultimate result of your vote for state senate is a U.S. Senator, you might actually know the names of the candidates in your local district.
5) …or maybe just the distorting of state elections. This is one of the dirty little secrets of the 19th century, and tends to outweigh the previous point. Remember the Lincoln-Douglas debates in 1858? They were running for the U.S. Senate, but they weren’t actually running; the voters listening to those debates were only going to be allowed to vote for the state legislature (and U.S. House, of course), which in turn would select Lincoln (if the Republicans had control) or Douglas (as it happened, when the Democrats won control). See the problem? In an election ostensibly for state officials, many voters were making their decision based on the consequences for the national government. This problem accelerated in the later 19th century, to the point where state-level candidates were sometimes nothing more than pass-throughs for a Senate vote. Except that they got to run the state government for the next two years. That’s not good if you are interested in federalism. Definitely a big strike against repeal.
6) It’s unclear how large the federalism benefits would be under repeal. Would the Senate think twice before passing on some huge undfunded mandate to the states? Sure. But would the state legislatures really restrict the Senators if the Senators sought to enhance federal power? Not clear. I can’t imagine any state legislator would object to, say, an increase in federal taxes that then kicked block grants back to the states. Isn’t that a win-win for the state legislature, but a relative loss of power for the states? The point is that it’s not clearly the case that state legislators have the incentives to defend state power against federal encroachment. Often, they have the incentive to punt on tough decisions, and one great place to punt it to the feds.
7) Repeal would probably alter who became a Senator. I was on a panel about the Senate at APSA this past weekend that featured a great paper by Scott McKenzie, who used a new dataset to show that the 17th amendment altered what type of person ended up in the Senate. That’s not surprising. At the very least, we know that people who can’t stomach campaigning or fund raising are out under the current system. What was surprising is that the 17th amendment tended to increase the number of professional politicians who ended up in the Senate, and reduced the number of amateurs who got there. At first blush, that seems radically counterintuitive: why would more amateurs be selected by a legislature than by a popular vote? But as it turns out, professionalism is politics is probably more necessary to run a campaign and win votes than it is to gain popularity in a legislature, especially in states with strong party systems controlling nominations. Scott’s paper also featured this wonderful quote, from machine boss Boises Penorse, after his first election post-17th amendment:
“Look at me! No legislature would ever have dared to elect me to the Senate, not even at Harrisburg! But the people, elected me by a bigger majority than my opponent’s total vote — by over half a million. You and your ‘reform’ friends thought direct election would turn men like me out of the Senate! Give me the People, every time.”
8 ) I’d imagine campaigning time would be (somewhat) reduced. And that would probably be a good thing. If Senators didn’t have to raise money or campaign, they’d free up a lot of time for public policy. On the other hand, I woudn’t go too far with this. First, Senators aren’t caught in the vicious campaign cycle nearly as much as House Members. Second, one could easily imagine Senators spending an inordinate amount of time campaigning on behalf of either themselves or on behalf of state legislative candidates (a la Lincoln and Douglas). And it’s not a stretch to imagine a fund-raising system that rewarded potential Senate candidates on how much their PAC could raise for state legislature or House candidates.
9) Wither the Senate? The most vexing question in all of this is the normative one regarding how strongly we want public opinion to hold sway over Senators. Do we want it to be just like the House? Or something different, perhaps what the Founders intended or perhaps some middle ground between their intentions and the House?
This goes to the heart of the contemporary tension with the Senate, which is playing out most recently about the filibuster, but is ultimately deeper, and regards the fundamental anti-democratic nature of the Senate. It directly raises the small elephant in the room: if the Senate is philosophically not fundamentally different than the House, then isn’t it normatively undesirable to maintain the strong mal-apportionment of equal state representation? But it also raises the bigger elephant in the room: If the Senate is ultimately to be just a second House of Representatives, then why have a Senate at all?
These questions are not easily answered, and best left to a separate post. But it is worth discussing how repeal of the 17th amendment might impact this dimension of the Senate. One thing it would do is clearly demarcate the Senate as something other than a democratically-elected, representative institution. After all, an institution apportioned equally among states, for six year terms, elected by state legislatures that themselves were aggregation of districted-election is unlikely to be representative of public opinion. But it also would be transparently obvious that this was the case, and the inteded cases. That might quell some of the tension regarding the Senate. Or it might just exacerbate it, such that the anti-democratic tendencies of the structure finally buckled, and radical Senate reform came onto the agenda.