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.

Texas Sen. Ted Cruz
Texas Sen. Ted Cruz is one of the hard-right figures who have been pushing for the 17th Amerndment'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and that the 17th Amendment in particular, which gives state residents the power to elect senators directly, should be repealed.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. 

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The main repeal argument—laid out in its best form by my colleague Todd Zywicki and 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 17th Amendment would turn state legislative elections into proxies for national debates? Because we’ve seen it before. Consider the most famous Senate race in history, when Abraham 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.