OPINION: Repeal the 17th Amendment Posted by Yale Undergraduate Law Review on Jul 10, 2012 in Domestic Law By Harry Graver, From Volume 1, Issue 2 Regardless of ideological persuasion, almost every politician, at one point during the campaign season, has put forth the same tired grievance: “Washington is broken.”Many on the left blame “greedy” special-interest groups while many on the right assign fault to the nature of centralized government. Regardless of the culprit, Washing- ton’s dysfunctional nature seems to be the only sticking point for both parties. Solutions have been attempted to mitigate the causes, but they have come in the form of unconstitution- al limits on First Amendment rights or “limits on spending and the growth of government” that never come to be. How- ever, both aspects of Washington’s inoperative malaise can be addressed in a single process – by repealing the Seventeenth Amendment. Getting rid of the Seventeenth Amendment will attend to the left’s desire for campaign finance reform without trouncing on the First Amendment and deal with the need to restore a sense of federalism in the nation. Before making a case for the Seventeenth Amendment’s re- peal, it is first necessary to go into some background on the amendment itself. The most important text of the Seven- teenth Amendment is: “The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.” The Seventeenth Amendment was adopted in the first place to change the founders’ original process (Ar- ticle 1, Section 3): “The Senate of the United States shall be composed of two Senators from each state, chosen by the leg- islature thereof for six Years; and each Senator shall have one Vote.” Essentially, the Seventeenth Amendment established the direct election of senators, who previously were elected by the state legislatures.i The Seventeenth Amendment entered into effect in 1913, as the product of a series of Progressive movement reforms. The roots of the amendment can be found in popular discontent, state by state, with procedural deadlock of the state legislatures in the election process. Angered by a history of scattered instances of bribery and corruption, states, on their own initiative, began to place the election of senators directly in the hands of the people. The movement gained national momentum through the work of William Randolph Hearst, who forged a campaign for reform through the pages of his latest purchase, a muckraking publication called Cos- mopolitan. Hearst waged a war of public relations through a set of pieces called “The Treason of the Senate,” where his reporters, with dubious factual foundations, were able to portray senators as crooked servants for the wealthy. All in all, Hearst’s campaign, coupled with the power of the Progressive movement, created a compelling national force. The Seventeenth Amendment became the law of the land on April 8th, 1913.ii At first glance, all of this seems to make sense. This is Amer- ica – we like democracy, right? Why then, did the founders choose to organize the federal government otherwise? As a general point, the founders had no intent in establishing a direct democracy. The people could be fickle, motivated by emotion, panic or whim, and governmental order would be compromised by the ever-mutable popular will. As Madi- son explained in Federalist 51: “A dependence on the peo- ple is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”iii Congress’ structure was not intended to be a quick facilitator of change, but rather the codification of tem- pered reason. The founders understood the immense power of a central- ized government, and that legislation, capable of unforeseen and unintended consequences, needs to be implemented with the highest degree of prudency. Madison brought this point to light in Federalist 10: “Before taking effect, legislation would have to be ratified by two independent power sources: the people’s representatives in the House and the state legis- latures’ agents in the Senate.”iv This is the very reason that members of the House hold two year terms, so that they are responsive to the people’s current desire, and that members of the Senate are given six year terms, so that they can look upon the winds of change with guarded skepticism. George Washington, understanding this necessity, described the Senate as the saucer that “cools” the hot tea that was House legislation. Moreover, the Senate’s purpose was to do more than dictate Congress’ pace. The reason that state legislatures, rather than any other body, were given the responsibility of choosing their contributions to the Senate was to underscore the ne- cessity of federalism in the Constitution. In a 1789 speech to a Congressional caucus, James Madison expounded upon this idea: “The State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Gov- ernment admit the State Legislatures to be sure guardians of the people’s liberty.” The purpose of Senators was to answer to the interest of their state, not a perception of the national good. Through this oversight, federal burdens were to remain light, allowing states to flourish with the smallest degree of centralized intrusion. In the eyes of James Madison, the Sen- ate was to be, “The great anchor of the Government.”v The impetus for the Seventeenth Amendment, while cer- tainly founded on good intentions, has had disastrous conse- quences. The two principal repercussions of the Seventeenth Amendment are: 1) a dangerous extension of the central gov- ernment’s reach and 2) a seemingly immutable trajectory of crippling political partisanship. To the first point, before the ratification of the Seventeenth Amendment, the federal gov- ernment was contained and stable. Its adoption removed the oppositional structures that allowed rapid central expansion, a development which notably began under President Frank- lin D. Roosevelt. This growth of central power is understand- able once we evaluate the new set of incentives senators had to respond to. Instead of answering to state legislatures, who historically struck a conservative balance between federal support (such as funding) and burden (such as tax rates), the senators now had to appeal to the same constituency as the members of the House. At first, this seems like a good idea – take power from those disconnected fat cats at the state house and give it to the peo- ple! However, the desires of the populace are not too different now than they were in the early 20th century: more services and fewer taxes – an inherent fiscal conundrum. Just look at the looming state bond crisis, where mushrooming federal entitlement spending requirements levied upon the states have exacerbated irresponsible local behavior. Before, it was within the self-interest of state legislatures to serve as a cau- tious check on federal power. However, without this counter- balance, both bodies of Congress now seek to appease their constituents through direct aid, in the form of federal action. No longer is there a motive for the federal government to contain itself, for it is now, in its entirety, responsive to the same insatiable appetite. The similar set of structural inducements has lead to the crip- pling political stagnancy that currently defines our House and Senate. As explained before, the role of the senator was never to respond to popular whim, but to judge the national mood with a withdrawn rationality. However, now that sena- tors’ constituencies have changed, the reliance on lobbyist money and the support of special interest groups almost mandates a perpetual campaign – creating men of political theatrics in place of the noble statesmen of the past. History has shown that those in politics are prone to value job secu- rity over national well being. For this reason, we have a fed- eral government that is simply afraid to say no, at the risk of losing popular opinion – it is why we have an unsustainable welfare state and are unable to stop it. Barack Obama ran on a platform of stopping “business as usual” – whatever that means. However, the structural fail- ures of the Senate will prevent even the most charismatic of leaders from ushering in change. Simply put, the Seventeenth Amendment has institutionalized a system of perverse incen- tives that will only lead to fiscal lavishness and political cow- ardice. This is not a rebuke of democracy – there is a valued debate on the level of popular participation on a state and lo- cal level. However, this is a rebuke of the political circus that is draining our nation’s prosperity and prestige. Repealing the Seventeenth Amendment will finally allow our government to sober up. The question is not whether we must listen to the will of the people – that is the very foundation of our republic. The question is how that popular will should manifest itself. For progress to be sustainable and prudent, checks and balances must be preserved. It is fundamentally impossible for checks and balances to exist in Congress if both the House and Senate answer to the same interest. i United States Constitution. Philadelphia: 1787. ii United States Senate. “Art & History Home Origins & Development Institutional Development Direct Election of Senators.” U.S. Senate. iii Madison, James. Federalist 51. 1788. iv Madison, James. Federalist 10. 1787. v Yoo, John. “Repeal the 17th Amendment?” National Review Online. CALL 202-224-3121 and tell your ELECTED REP (in case they forgot they were elected) to REPEAL this Amendment + DO NOT FUND OBAMA-CARE
Posted on: Mon, 29 Jul 2013 20:28:07 +0000
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