17th Amendment

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In 1787, at Philadelphia, the Constitutional Convention ran into a roadblock. The large states (Virginia, New York, Massachusetts, Pennsylvania) supported the Virginia Plan for Congress, which would have based representation on population.

The small states (all the others) favored the New Jersey Plan, which was little more than a re-run of the Articles of Confederation, with congressional representation equal by state.

This roadblock threatened to de-rail the convention and the emergence of the new nation of the United States of America.

To get over the roadblock, the convention adopted the Connecticut Compromise, sometimes called the “Great Compromise,” proposed by Roger Sherman of Connecticut. It consisted of a two-house legislature in which the large states could dominate the House of Representatives by virtue of their populations, but in which the small states could dominate the Senate by virtue of their greater numbers. In the Senate, the states would be represented as states, with their Senators normally being chosen by the state legislatures.

The 17th Amendment violates this compromise (without which, we need to remember, there would have been no U.S. of A.). By providing for the direct election of Senators, the amendment transforms the Senate into something quite different from a body where the states are represented in their capacity as states.

It is often argued, and I make the argument myself, that if the states elected their Senators, legislative monstrosities like ObamaCare or NCLB, with their burdensome mandates, would never see the light of day.

It is popular these days to call for the repeal of the 17th Amendment, and I am as sympathetic to that impulse as anyone. But there are some caveats that need to be raised.

One is that there were some real problems with the original arrangement. It quite often happened that a state legislature could not agree on who should represent the state. If the upper house of a state legislature was controlled by one party, and the lower house by the other, agreement might not be possible. In some cases, years went by with a state suffering with only one Senator, or even none at all.

Repeal of the 17th Amendment will not do away with this problem. Indeed, with the current animosity between the two major parties, it is likely to be worse than it was in 1913.

Another problem is the disparity in federal and state elections. In his last re-election campaign in 2006 in Utah, Orrin Hatch spent more than $4 million (far more than he needed to spend, but not nearly as much as he could have spent had he wanted to). In that year, all of the seats in the Utah House (75) were up for election and half of the Utah Senate (15). It’s hard to come up with hard expenditure numbers, but for convenience, let’s assume a figure of $50,000 per House race and $100,000 per Senate race. The total comes to $3,750,000 for the House and $1,500,000 for the Senate. The grand total is $4,250,000 for legislative races.

In other words, all the winning candidates combined spent about the same amount that Hatch spent that year. Obviously, had he needed to campaign among the legislators, rather than among the public, he could have secured his re-election with a far lower expenditure than he did.

This problem does not go away with repeal of the 17th Amendment. Indeed, as we saw in New Jersey, where John Corzine was willing to spend $36 million to get elected to the U.S. Senate, it would likely be made worse by repeal.

In addition to these general drawbacks to repeal, there is one that is specific to Utah: Repeal would reduce the influence of the grassroots in Senate candidate selection. Today, incumbent Senator Robert Bennett faces among Republican convention delegates. If there were no 17th Amendment, Bennett would only have to seek the approval of a majority of the 114 legislators (including Democrats), rather than a majority of the 3,000+ delegates at the state nominating convention. It seems self-evident that Bennett would have an easier time with the legislature than with the convention.

But the most important problem with repeal of the 17th Amendment is that it simply isn’t going to happen. There is no constituency for it outside of a few political activists, most of whom have never considered the problems involved with the original system or what is likely to happen if it were repealed. The only prominent national figures calling for repeal are John Dean (yes, that John Dean) and Alan Keyes (whose use of the issue in his Senate campaign in Illinois contributed significantly to his margin of loss). Todd Zywicki of the George Mason University Law School provides brain power for the effort, but he hardly has a national following.

Not only would a repeal effort have to convince a significant majority of the population that they really are too stupid to elect their Senators, but you would have to persuade the U.S. Senate to vote for its own demise. Not going to happen.

(Of course one can bypass the Senate to amend the constitution, but that avenue, the calling of a constitutional convention, is bitterly opposed by the very people who want to repeal the 17th Amendment.)

I conclude that the real problem is the deformation of our federal system, and the resulting victory of the centripetal forces consolidating power in Washington. Yes, the adoption of the 17th Amendment contributed to that consolidation, but if repeal is not realistic (and perhaps not desirable), then where do we go from here?

There needs to be some thinking about how to restore the vertical separation of powers between the states and the national government, which the Founders thought was just as important as the horizontal separation between legislative, executive, and judicial branches.

Short of resurrecting the doctrines of nullification and secession, what might we do? Here are a couple of ideas:

1. Repeal the 16th Amendment. Given a choice between state election of Senators and repeal of the income tax, I’d take the latter. The imbalance in the taxing power facilitated by the income tax has had just as much of a centripetal effect as direct election of Senators, and arguably more. The replacement of the income tax with a consumption tax (either as a properly constructed “flat tax” or as in the “Fair Tax” national sales tax) would be a step forward as a matter of economic policy, but I’m not sure it would have much effect on policy centralization. The 16th Amendment simply channels too much money to Washington, and starves the states of the resources they need to do the job the citizens want done.

2. Legal action by a state or (preferably) a group of states to restore the “police power” to its rightful place within the province of the states. The courts these days are increasingly receptive to policy arguments, which is a bad thing, but given the increasingly evident failures of a centralized policy-managing entity, the idea that the court might restore the interstate commerce clause to somewhere between Gibbons v. Ogden and Wickard v. Filburn is at least conceivable. The model here is the decades-long campaign by the NAACP to get the Supreme Court to Brown v. Board of Education.

3. A “council of states” which could have some enforceable policy input into congressional deliberations. Perhaps a two-thirds majority of the states expressing opposition to legislation having major impacts on state governments would have to be overcome by two-thirds majorities in the House and Senate.

4. Recapture of state lobbying organizations. The major local government interest groups operating in Washington (National Association of Governors, National Council of State Legislators, National League of Cities and Towns, etc.) tend to be staffed by those with Washington experience, usually as top staff to House and Senate committees or major power brokers. That is understandable, since these individuals are wise in the ways of Washington, but they are also creatures of the Washington status quo, and they tend to spend a lot of their energy explaining to their clients why what Washington is doing to them isn’t really rape, and perhaps they should relax and enjoy it.

5. Use of think tanks, universities, and alternative state and local lobbying organizations. Presentations at the annual meetings of The Heritage Foundation Resource Bank, the American Legislative Exchange Council, the Philadelphia Society, Eagle Forum, and others, would popularize these ideas.

6. Grassroots activism. Right now there is a grassroots ferment unprecedented since the constitutional ratification debate of 1787-91. That movement needs to focus on achievable goals, not chase the will-of-the-wisp of repeal of the 17th Amendment, which isn’t going to happen and which might not even be desirable.

7. State legislative action. State Senator Howard Stevenson has renewed his quest to provide the state legislature with a mechanism for rating the job performance of Utah’s U.S. Senators. I applaud his effort, and would certainly cooperate with it.

8. Even if such legislation does not pass, in my view Senators should be in regular contact with state legislators, keeping them informed of legislative proposals in Washington, and seeking their opinion on the impact of these proposals on the states. The 35 states that have either passed or are considering bills keeping them out of any federal mandate on health insurance is a clear indication of the threat the states feel from this bill.

As Senator, I would see that that kind of feedback was part of my weekly routine. When the state legislature was in session, and I was in Utah, I would regularly be there to get the benefit of the ideas of the legislators. I would appoint a senior staff person to be there when I could not, and at all interim sessions, and at as many policy discussions within the state executive branch as the governor was comfortable with. That staff person would report in detail to me at least weekly, and I would use that staff person as a channel of communication to state leaders as to what was happening in Washington that would affect the state directly.

Some of these ideas (it would be presumptuous to call them proposals) would require constitutional amendments, and as amendments, their future would be uncertain (and somewhat delayed). Others could be at least promoted by “committees of correspondence” among the states (an idea with honorable antecedents, and perhaps even more appropriate in this era of Tea Parties). But the important thing at this point is for the creative individuals within the states to get their thinking caps on, and to demonstrate that Washington does not have a monopoly on good ideas. If we do that, we will be well on our way to restoring the proper balance of power between and among the various levels of our federal system.

Tim Bridgewater
Candidate for the U.S. Senate