Mises Wire

Repealing the 17th Amendment Won't Fix the Senate

It's nice to see that the issue of repealing the 17th amendment to the US Constitution isn't going away. The 17th Amendment, you may recall, is the one that mandates popular election of US Senators. Before that, US Senators were often selected — strictly speaking — by the state legislatures.

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 really revolutionize the Senate the way many supporters of repeal imagine. 

First of all, it's important to note that 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.

Of course, even if most states still employed de facto popular election in the wake of repealing the 17th Amendment, the states themselves should be free to decide how they elect Senators. The voters don't need DC politicians to tell them how to elect their own representatives. Indeed, everything in the US Constitution dictating to states as to how to select representatives should be deleted.

Nevertheless, repealing the 17th Amendment would be a small step in the right direction (i.e., the direction of decentralization), and as The Huffington Post has ruefully admitted, the movement retains it supporters: 

A widespread sentiment among more extreme conservatives — including a surprising number of prominent Republican candidates, former candidates, office holders, and former office holders — is that the 17th Amendment should be repealed. That Amendment, ratified in 1913, changed the way of selecting United States senators. It empowered a state’s voters and took the power of selection away from legislatures...Those advocating repeal no doubt are a minority among Republicans, but they are significant, and are more numerous than one might imagine.

But, if one is going to go through all the trouble of reforming the US Senate in this manner, why not go for a more radical solution? 

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. 

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  ne 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. 

Ryan McMaken is the editor of Mises Wire and The Austrian. Contact: email, twitter.

Note: The views expressed on Mises.org are not necessarily those of the Mises Institute.
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