Trading One (Alleged) Corruption for Another
We should probably repeal the 17th Amendment
This is part of a series I’m writing analyzing the Constitution of the United States. You can find the start of the series here.
Coming out of the 2024 election cycle, it’s clear few Americans can identify the 17th Amendment to the Constitution or if they can, they don’t realize it is one of the most significant amendments that completely changed the balance of power in our federal system.
Have you noticed that the Senate seems to be struggling to define its role in the 2nd Trump term? Further, have you noticed that Alaska’s Lisa Murkowski, though the same party as Trump, who her state overwhelmingly supported, appears dedicted to stopping the agenda her constituents largely support?
The 17th Amendment provided for the direct popular election of U.S. senators. Does that sound non-controversial today? It shouldn’t. The 17th Amendment removed the authority of state legislatures to choose the senators representing their state in Section 3 of Article I of the Constitution. In doing so, it removed an important check and balance from the Constitution.
Back when I took government in highschool (what is sometimes called civics) our teacher focused on the definition of “checks and balances.” Being as this was after the ratification of the 17th Amendment, the definition referred to the three branches of the federal government—legislative, judicial and executive—having separate powers that can be used to “check” the power of the other branches, ensuring no single branch becomes too powerful. This is a horizontal balance of power applied within the federal government.
Civics teachers and practically the whole of American society taught by them have forgotten over the 120 years the 17th Amendment has been in place that the original design of the Constitution’s Article I gave state governments an essential, second VERTICAL check on the power of the federal government—the authority of state legislatures to pick the senators representing their states who confirm federal appointments, authorize treaties, and confirm federal judges at all levels.
The Framers intended to protect the interests of states as states and the mode of election mattered. State legislative selection impelled senators to preserve the original federal design and to protect the interests not only of their own states, but also of the states as political and legal entities within the federal system.
Alexander Hamilton emphasized this at the New York ratifying convention in 1788 when he said senators “will constantly look up to the state governments with an eye of dependance” and, if they wanted to be reelected by state legislators, they, “would have a uniform attachment to the interests of their several states.” In other words, they would be wary of imposing unfunded mandates on state governments or taking other actions extending the power of the federal government into areas traditionally within the authority of the states.
Are your Senators wary of imposing unfunded mandates on your state government? Mine certainly aren’t. Maybe that’s because their campaign chests are filled with out-of-state funds.
The original method of electing U.S. senators provided state governments with direct input in the national government, acting wasn’t only an essential check on the new federal government’s power, but also a means by which the states could influence congressional lawmaking.
This was a really important function, and yet the amendment was ratified in less than a year with overwhelming numbers. In the 36 states ratifying the amendment, there were only 191 oppositing votes.
A Massive Sea Change
The 17th Amendment arose from “Progressivism,” pushed by intellectuals and social reformers who believed our constitutional system of government outdated and in need of reform. Progressives designed the Amendment to enhance the authority of the central government and expand the size and power of a federal bureaucracy so it could orchestrate the changes the Progressives believed would lead to a new “utopia” while diminishing the power of state governments to contest those changes.
Utopia = No Where (A place that doesn’t exist)
The 16th Amendment, which gave Congress the power to “lay and collect taxes on incomes,” was ratified earlier in 1913. Combined with the 17th Amendment, it gave the federal government the ability to drastically increase its spending and power without considering the interests of the states or the effects on the sovereign authority of the states.
The 17th Amendment critically altered the balance of power between state governments and the federal government, making the states subordinate to the federal government. States no longer “had a legislative venue, or any venue, to influence directly the course of the federal government,” wrote Mark Levin in Liberty Amendments.
Looking at history and the Framers’ extra-constitutional writings, it’s clear the Constitution never would have been ratified without this essential feature preserving the balance of power between the established sovereign states and the federal government they were creating. With direct elections, senators have no incentive to protect state governments and state budgets at the expense of enormous, bloated federal programs and spending leading toward financial insolvency.
An Example
Alaska has two Senators. In reality, we have half a Senator. Ohio has half of one and Lisa Murkowski doesn’t represent Alaska on most issues.
Lisa Murkowski was appointed by her father, then-Governor Frank Murkowski, who had just vacated his senatorial seat. Yes, she’s a nepotism hire! She was known as a very moderate Republican when she served in the Alaska State Legislature. Some said she was a Democrat. So when Papa installed her as a Republican Senator, a lot of us were skeptical.
Her first term, she voted (largely) with senior Senator Ted Stevens (R-Alaska), but as soon as Ted was forced out, she began voting “independently”. For a whole lot of reasons, I know no Alaska Repubicans or Libertarians who will vote for Lisa Murkowki. She’s been censored by the Alaska Republican Party which provided her with no funding in 2022. Still, she keeps winning, mainly on the strength of the Native and Democratic vote…but she still claims to be a Republican so she can get funding from the national party structure. Her “war chest” consists largely of donations from left-leaning Outside organizations.
Our Legistlature is majority Republican (though controlled by Democrats because Alaska is the only state in the union that practices coalition government). Lisa isn’t roundly loved, but she is bought and paid for by entities in other states. She occasionally submits Alaska-centric bills in the Senate, but they rarely pass, despite her seniority in the Senate. She’s never won a statewide election with 50% of the vote. Her advisors promoted Ranked Voting in Alaska because they know she would lose an election if there was a straight up-down vote.
Dan Sullivan is “better.” He at least tries to pass Alaska-centric bills. But he was elected with funding from his family back in Ohio and still draws a lot of his support from the Midwest. Many of those Alaska-centric bills are actually addressing military issues, so….
For example, Jones Act compliance costs Alaskans billions of dollars annually and neither of our Senators will vote to change it.
This isn’t just a problem in Alaska. Other states have the same difficulty with Senators who get their funding from outside the state and are highly unpopular with a large plurality if not near-majority of voters, and yet, somehow, continually win reelection. They vote against their state’s best interest and still don’t lose their jobs.
Arguments to the corruption of state legislatures circa 1913 aside, it would seem direct election of Senators has a high degree of corruption now.
Is Change Possible?
Could we change things back to the way they were? Should we even try?
These questions have prompted vigorous debate in recent years. This amendment has created a Senate that is bought by the highest bidder. Lisa Murkowski is evidence of that. But what would the Senate look like today without the 17th Amendment?
Everything else being equal?
If we returned to the original system of Senators being selected by state legislatures, the US Senate would likely be much more controlled by Republicans, since almost 56% of state legislatures are majority Republican.
The indirect selection of Senators had its flaws. Deadlocks, sometimes caused by incomprehensible federal laws, prevented states from sending qualified candidates to Congress. Deadlocks were only about 2% of the outcomes, but they had a strong influence in the minds of voters.
Still, even 112 years later, the 17th amendment still has its critics, particularly among states' rights advocates. Repeal proponents point to several benefits. It gives state governments a direct voice in the federal government and budgeting process, something proponents believe reflect the desire of the Founding Fathers for states to have a dynamic role in Washington.
Of course, Congress—particularly Senators who are in office because of direct election—are unlikely to pass a repeal amendment through Congress. Then the repeal amendment would have to go through the same system of ratification as any other amendment. It would need two-thirds of Congress and then both legislative bodies of 38 states would need to agree to ratification.
It’s unlikely America’s state legislatures would ratify an amendment recinding the 17th and taking away the people’s direct election of U.S. senators. It would be a political nightmare. You could make a case showing the structural damage this amendment has caused, but the American people tend to avoid major changes and they now see Senate elections as an individual right.
That doesn’t mean we shouldn’t probably try?