States’ Wrongs

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States’ Wrongs

By David Schleicher

Conservatives’ illogical, inconsistent effort to repeal the 17th Amendment.

Texas Sen. Ted Cruz is one of the hard-right figures who have been pushing for the 17thAmerndment's repeal.

Photo by Jim Bourg/Reuters

Over the past year, an increasingly central plank of conservative and Tea Party rhetoric is that constitutional change is needed and that the 17thAmendment in particular, which gives state residents the power to elect senators directly, should be repealed. (Previously, senators were selected by the state legislatures). Hard-right figures across the country, from Sen. Ted Cruz (R-Texas) to Georgia Senate candidate Rep. Paul Broun to a steady drumbeat of state officials, have now called for repealing the amendment and giving the power to select senators back to the state legislatures. Radio host Mark Levin’s book The Liberty Amendments, calling for repeal, among other constitutional changes, was the best-selling book on constitutional law last year. Clearly this is an idea with legs.

This boomlet of energy for repealing the 17th Amendment is not the first in recent memory. Back in 2010, repeal was similarly endorsed by a bevy of conservative bigwigs from Justice Antonin Scalia to Gov. Rick Perry to now-Sens. Mike Lee (R-Utah) and Jeff Flake (R-Ariz.). Back then, support for repeal was mocked in Democratic campaign ads as kooky, but perhaps it’s time to concede that it is no longer a fringe idea. Given the ascendance of the right flank of the GOP, it’s worth taking the argument for repeal seriously.

But the real paradox, if you study the amendment’s history and effect, is that conservatives—all conservatives, moderate or Tea Party—should love the 17th Amendment. Why? Because without it, state legislative elections would turn entirely on the identity of U.S. Senate candidates. State legislatures, in effect, would become mini-electoral colleges for choosing senators, except with the residual power to make state law. To love states and federalism, as conservatives claim to, you need to believe that democracy works at the state level, that voters punish badly performing legislators and reward good ones. Repealing the 17th Amendment would ruin state democracy. 

The main repeal argument—laid out in its best form by my colleague Todd Zywickiand now-Judge Jay Bybee—is that the power of senatorial selection once gave state governments crucial influence over Washington. Once that power was removed by the 17th Amendment, the argument goes, state governments lost their pull in Washington, leading to a bigger, greedier, and more powerful federal government at the expense of states’ rights and interests.  

But this simply ignores how state elections work. How do we know repealing the 17thAmendment would turn state legislative elections into proxies for national debates? Because we’ve seen it before. Consider the most famous Senate race in history, whenAbraham Lincoln squared off against Stephen Douglas on the question of the expansion of slavery in 1858. We tend to forget, all these years later, that neither man was actually on the ballot. Instead, Illinois voters were choosing Republican or Democratic state legislators, who would, in turn, pick either Lincoln or Douglas. Because the state Legislature had the power to choose the next senator, and because slavery was the burning national question, there was precious little attention for, say, road building or local tax policy or whatever else the Illinois state Legislature had been up to. The only thing that mattered was a national question and the candidates debating it. In effect, in that election, Illinois chose its state lawmakers without paying much attention to the performance of state officials.

This was not an isolated incident. Prior to the enactment of the 17th Amendment, state legislative campaigns were regularly taken over by the question of senatorial appointment. The press even criticized state officials for daring to mention the things they planned to do in state office. They understood what the real stakes were. This, for instance, is from an editorial in the Chicago Tribune in 1894:

Do these Democratic State Senators think the voters can be called off from the national issues involved in the … indirect election of a Senator to consider only local questions. That they will drop the Wilson bill and devote their attention to the establishment of a Police Board in Chicago? …The people are not such fools.

Before the 17th amendment was enacted, for voters to make a decision on a national issue—say to punish a senator for supporting or opposing a war or for federal tax policy—they had to also vote for the senator’s co-partisans in the state legislature. The actual performance of state legislators was beside the point.

This was not lost on the period’s state officials. Prior to the passage of the amendment state legislatures came up with all sorts of ways to create what would have been all but direct elections, in the hopes of getting back to their actual job of running the states, as they were tasked with doing. The most famous of these, the “Oregon Plan,” featured “advisory” elections for senator that, for all intents and purposes, served as general elections that state legislators followed regardless of party. State legislatures also passed resolutions calling for a constitutional amendment, and even for a constitutional convention, in order to move to a system of direct elections. And one of the key arguments was that direct elections for senator would free up voters to focus on the performance of state officials in state elections.

As then-Sen. Joseph Mitchell (for you lawyer-dorks, a key figure in Pennoyer v. Neff!) argued when the 17th Amendment was debated in the US Senate:

Another vital objection to the choosing of Senators by the legislatures ... is found in the fact that in the selection of candidates for the legislatures whose business it is to choose a Senator, every consideration is lost sight of except as to how the candidates, if elected, will vote on the question of senatorship. This becomes the vital issue in all such campaigns, while the question as to the candidate’s qualifications or fitness for the business of general legislation, or as to the views he entertains upon the great subjects of material interest to the State … is wholly ignored.

It is pretty clear that “second-order” elections, the political science term for the phenomenon wherein you elect officials at one level based on your preferences at another, are bad for the values conservatives think they are vindicating in supporting repeal of the 17th Amendment. There are a number of reasons that conservatives (or anyone for that matter) might think it is a good idea for states to have power: Allowing states rather the federal government to make decisions may promote localized and more representative decisions, may allow for different values to be expressed in a big country without conflict, can create choices which people and businesses can “sort” among by moving, and can create laboratories in which policy innovation and testing can happen. But these arguments only work if state democracy is working. If state voters pay no attention to state issues when voting in state elections, we will accrue few of the benefits of federalism.

If conservatives want to improve “our federalism,” repealing the 17th Amendment is an absolutely awful way to do it. Instead committed federalists should be looking to erect more—not fewer—boundaries between national and state politics. They should be fighting to banish discussions of federal interests from state elections altogether. So, for example, rather than calling for repeal of the 17th Amendment, pro-federalist groups should seek to segment state elections, using tools like ballot notations that make clear the differences between state and federal parties. Even despite the 17thAmendment, national issues—including things state legislatures have no control over, from the Iraq war to monetary policy—now play a huge role in state elections, meaning that state officials are less accountable on state issues than they should be. The problem with the 17th Amendment is not that it removed too much power from states; it’s that it didn’t do enough to free state elections from the overweening influence of national politics on state contests. For those who care about federalism, and really, for anyone who cares about the quality of our democracy, the real challenge is making state elections work. Repealing the 17th Amendment will do just the opposite.

David Schleicher is an associate professor at the George Mason University School of Law and is currently serving as a visiting professor at Yale Law School.