The 17th Amendment under attack

The long-forgotten 17th Amendment — the one that gave us direct election of senators — has suddenly moved to center stage in the new debate over constitutional first principles fostered by the Tea Party movement.

Conservative commentators like Glenn Beck are tracing what they call the death of states’ rights and the rise of overweening federal power to enactment of the amendment in 1913, because, they contend, it made senators less accountable to the states from which they are elected. “One of the dumbest things we ever did,” Mike Huckabee proclaimed on his radio show, and Fox News legal commentator Andrew Napolitano calls the 17th Amendment “the only part of the Constitution that is itself unconstitutional.”

But all that was only prelude to the prominence U.S. Supreme Court Justice Antonin Scalia gave to the 17th Amendment during a Nov. 12 appearance at Texas Tech University with Justice Stephen Breyer.

Responding to a question about changes he would like to see in the Constitution, Scalia was quoted as saying, “There’s very little that I would change….I would change it back to what they wrote, in some respects. The 17th Amendment has changed things enormously.” Scalia added, according to news accounts, “We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century. So, don’t mess with the Constitution.”

Add to that the Nov. 2 victory of Mike Lee, a former Supreme Court clerk elected as the next senator from Utah, who also urges repeal of the 17th Amend¬ment. “We need one chamber of Congress in which states will be represented as states,” said Lee on Fox News after his election, adding that adoption of the amendment triggered “an explosion of federal legislation” unseen before. Alaska Senate candidate Joe Miller also urged repeal, though he later backtracked — and now is not likely to join the Senate anyway.

All this attention to the 17th Amend¬ment is amusing and bewildering to George Mason University School of Law professor Todd Zywicki, who has been writing about the 17th Amendment and urging its repeal for upwards of 20 years.

He remembers when the amendment was so uncontroversial that, when he discussed it with his wife, she asked, “Who’s going to argue for the repeal of the 17th Amendment?” His reply: “Um, me.”

Zywicki said he was surprised at first when the Tea Party movement, with its populist orientation, embraced repeal of the 17th Amendment, which appears to be “somewhat anti-democratic,” because it would take away popular election of senators.

But he agrees with the analysis that, if the 17th Amendment had never been adopted, the Senate — and Congress — would not be the institutions they are today. Instead of being elected the same way as House members, they would be much more strongly tied to the interests of their states. “It’s my firm belief that ‘Obamacare’ would not have happened,” Zywicki said, because it overrides state prerogatives in significant ways. Unfunded mandates would not have proliferated, he added. “There has been more federal activity of all kinds,” since the 17th Amendment came into being, Zywicki said.

Parenthetically, he said it’s possible that, without the 17th Amendment, President Franklin Delano Roosevelt’s New Deal might not have been enacted. “The question is whether that’s a good thing or a bad thing. If you think the New Deal was a good thing, warts and all, you would obviously think the 17th Amendment was a good thing too.”

Liberals are responding to the new attention to the 17th Amendment by recalling why it was enacted in the first place: a democratic impulse to empower voters with direct election of senators. “The story of the 17th Amendment is one of the progressive movement leading the way,” said David Gans of the Constitutional Accountability Center, which takes a progressive view of the text and history of the Constitution. “The feeling was that the choice should be made by voters.”

Gans also said it is “not surprising” that, seven years after the 17th Amendment’s passage, a constitutional amendment giving the right to vote to women was approved by a Senate elected the new way — and pressured by women in their states. By making senators directly accountable to the public, Gans added, the 17th Amendment made it possible for Congress for the first time to regulate big corporations, which had a strong hold over many state legislatures.

Far from fearing loss of power, liberals also point out, states favored the 17th Amendment to reduce the rampant corruption in state legislatures that accompanied selection of senators. “Whenever a senatorial election occurred, railroad barons, oilmen and monopolists descended on the state capitol and spread their cash like butter across the lawmakers’ outstretched palms,” wrote University of Baltimore School of Law professor Garrett Epps in a defense of the amendment in The Atlantic.

Soon states began adopting primaries or other mechanisms to tie legislators’ Senate selections directly to the voters. The famous Lincoln-Douglas debates of 1858 were a symbol of this shift because they took place before the public, even though the winner of the race was picked by state legislators. Abraham Lincoln’s Republicans won more popular votes, but Democrats won a slim legislative majority, so Stephen Douglas became senator.

By 1910, most states had some form of primary election to guarantee that state legislators would pick the popular choice as senator, so ratification was a fairly easy sell in 1913. It came right after adoption of the 16th Amendment, which gave Congress the power to “lay and collect taxes.”

In tandem, the two amendments marked “a tipping point” away from a limited federal government, Zywicki said. “The 16th unleashed the taxing power, and the 17th unleashed the spending power.” Zywicki disputes the corruption rationale for passage of the 17th Amendment, arguing that stories of rampant bribery are overblown.

But whatever the reason for the amendment, Zwicki and kindred conservatives think the previous system worked far better. The original constitutional provision, Zywicki said, was part of an intricate, balanced design aimed at giving each federal institution a unique method of selection, inserting checks, incentives and independence into the system.

An Electoral College would choose presidents; it still does, but usually reflects the popular vote. Presidents in turn would name the members of the Supreme Court, with consent of the Senate. The House would be the only directly elected federal officials, and senators would be named by vote of state legislative bodies. They would, in Zywicki’s words, act as “ambassadors of their state governments to the federal government.” Under the original design, Zywicki said the Senate served as a significant check on the federal government.

Current critics of the 17th Amendment say it blew apart the balance between elements of government that the framers sought. The Senate became more like the House, leaving the Supreme Court as the only nonelected branch (unless one counts the somewhat vestigial Electoral College selection of presidents.) Senators were freed from direct accountability to the states. Glenn Beck, in a critique of the amendment, pointed to candidates such as departing Connecticut Democrat Christopher Dodd. “I didn’t know anyone in Connecticut who was ready to give money to Chris Dodd,” said Beck in a column. “Yet he was getting tons of cash nationally. How is that representative of Connecticut?”

How the Senate would behave now if its members were picked by state legislators is hard to conjure. With Republicans controlling 26 legislatures outright, and five split with Democrats after the midterm elections, the Senate would likely be under Republican control. And it might feel emboldened to stand up more frequently to perceived big-government federal encroachments.

But the old way of picking senators might also have unexpected consequences. Would liberal state legislatures that have adopted same-sex marriage or medical marijuana send to Washington senators who are bolder than current ones about espousing such causes? And as “ambassadors” of their states, would they just come to Washington seeking more federal funds and earmarks, rather than doing battle with big government?

“Would they just be greedier?” Zywicki asks himself in response to the last possibility. “I haven’t thought that one through.” He acknowledges that “we live in a completely different world” than pre-17th Amendment America.

But in the end even Zywicki, who has beat the drums for repealing the 17th Amendment for so long, thinks it’s very unlikely to happen “in my lifetime,” in part because it seems anti-democratic, and in part because the constitutional amendment process would require two-thirds of the existing Senate to approve. New senators like Mike Lee offer a glimmer of hope, but even Lee in a post-election interview also said he did not envision repealing the amendment in his lifetime. Zywicki is 44, and Lee is 39.

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