Monday, October 10, 2005

Is the 17th Amendment Outdated?

The 17th Amendment provides for direct election of US Senators by the electorate, changing the original constitutional procedure for their election by state legislatures. Has it been a success? With Medicaid shifting cost burdens to states, and highway bills used as leverage to force states to adopt laws that the federal government would not otherwise be able to pass on its own jurisdiction, it seems that states' powers are constantly being eroded by end-runs around the constitution. The states' check on federal power now is only through the Supreme Court, rather than through the constant political mechanism that legislature appointment of senators provided.

How did we get here? John W. Dean writes that the two main conventional-wisdom reasons for its enactment--the Progressive movement and confusion with the state-legislature system--are inadequate.

Professor Zywicki basically demolishes both these explanations. He contends, first, that explaining the Seventeenth Amendment as part of the Progressive Movement is weak, at best. After all, nothing else from that movement (such as referendums and recalls) was adopted as part of the Constitution. He also points out that revisionist history indicates the Progressive Movement was not driven as much by efforts to aid the less fortunate as once was thought (and as it claimed) - so that direct democracy as an empowerment of the poor might not have been one of its true goals.

What about the "corruption and deadlock" explanation? Zywicki's analysis shows that, in fact, the corruption was nominal, and infrequent. In addition, he points out that the deadlock problem could have been easily solved by legislation that would have required only a plurality to elect a Senator - a far easier remedy than the burdensome process of amending the Constitution that led to the Seventeenth Amendment.

Fortuntely, Professor Zywicki offers an explanation for the Amendment's enactment that makes much more sense. He contends that the true backers of the Seventeenth Amendment were special interests, which had had great difficultly influencing the system when state legislatures controlled the Senate. (Recall that it had been set up by the Framers precisely to thwart them.) They hoped direct elections would increase their control, since they would let them appeal directly to the electorate, as well as provide their essential political fuel - money.

Increasing the directness of a democracy is not always good, or permanently good. In the early 20th century it may have made sense to cut out local political party machines by directly electing senators, but today it's the national special interests who have the most well oiled machines.

If you cruise the internet for repeal-the-17th sites, you will find many references to the fact that the federal government has grown in scope since the amendment was passed. I think this argument misses the mark. The growth in welfare programs and regulatory control of sectors of the economy are not due to the Senate's sudden newfound freedom from state legislatures--these programs originated with Presidents are were passed by both houses of congress, in response to changing national expectations of what government's role should be. These things would have happened with or without the 17th.

The harm of the 17th amendment is twofold. First, it erodes state autonomy in matters properly reserved to them, such as intra-state transportation and education. A senator will think twice about stepping on state legislators' constitutional toes if he wants another term in Washington.

Secondly, it leaves each senator more beholden to nationally organized special interests than to his/her own constituents. The republic works best when politicians represent the people more than they do special interests, but the concentration of power in just 100 senators popularly elected at large in our current system promotes senatorial vassalage to monied lobbies. One way to cut K Street out of the loop would be to roll back the 17th Amendment.


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