Why the Conservative Plan to Get Rid of the 17th Amendment Makes No Sense

The law, lawyers, and the court.
Feb. 27 2014 11:20 AM

States’ Wrongs

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

(Continued from Page 1)

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.
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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 17th Amendment, 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.

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