Take the Senate Away From Voters

Oct. 19 (Bloomberg) -- The campaign for the U.S. Senate in Connecticut, where I live, has produced commercials that are so nasty (and insulting to the intelligence) that I often catch myself wishing that somehow both candidates might lose.

And then I sometimes wonder whether there might after all be a bit of wisdom in the oft-lampooned idea of repealing the 17th Amendment.

The 17th Amendment, adopted in 1913, provides for the direct election of the senators by the people of each state. Before then, the legislatures of the states either chose their senators directly or (on rare occasion) established means by which the people could vote. The framers believed that allowing the legislatures to play this role was essential for getting their proposed Constitution adopted, and that a Senate so selected might provide a bulwark against what was expected to be a more unruly House.

Lately, the idea of a return to the original system has gained attention (if not, precisely, traction) after being taken up by the Tea Party. As one would predict, the fire has been storming ever since.

To support the repeal of the 17th Amendment, wrote Kevin Drum in Mother Jones, was to be “opposed to electing senators.” He traced the proposal to the John Birch Society and dismissed it as a product of the “hard-right fringe”; writing in Salon, Alex Seitz-Wald made similar points using similar language. Other adjectives for the idea include “racist,” “nutty” and “elitist.”

Not Crazy

Well, let’s slow down a bit. One of the worst tendencies of our age is to react to ideas based on who happens to support them rather than on the merits. Even a stopped clock is right twice a day.

Besides, not all those who are intrigued by the idea of repeal are crazed right-wingers. For example, my Yale Law School colleague Akhil Amar, one of the nation’s foremost constitutional scholars, floated the idea years ago, on the ground that bolstering the role of states “as healthy and independent power centers” might help check “possible abuses of power by federal officials.” (Although Amar has recently conceded some uneasiness, it is on practical not political grounds.)

Moreover, the process through which the 17th Amendment became part of the Constitution wasn’t exactly one of our finer moments. Vulgar history suggests that the change came about because of corruption among senators who were selected by corrupt legislators. This account has often been repeated by defenders of the current system, but is at best half-true.

In the century-plus of supposed corruption leading up to the 17th Amendment, exactly one member of the Senate and two members of the House were convicted of crimes. The senator, Oregon Republican John Hipple Mitchell, was found guilty in 1905 of involvement in a land fraud but died before he could be sentenced.

Nevertheless, newspapers of the time spread the idea that his crimes had been possible because he was a senator -- and that the Senate was corrupt because the legislatures were corrupt. The leading light among crusading journalists was David Graham Phillips, whose “Treason of the Senate” series in Cosmopolitan magazine was directed and championed by that bastion of journalistic integrity, William Randolph Hearst.

The articles make for fascinating reading. They are chock-full of vague accusations, but short on what nowadays we would call -- well, facts. As the official historian of the Senate notes, Phillips’s “obvious reliance on innuendo and exaggeration soon earned him the scorn of other reformers.”

The main thrust of Phillips’s attack was the claim that senators are beholden to those who supply money for their campaigns, an argument that had been for decades a staple of supporters of direct elections. But if this was the evil that direct election was supposed to cure, the cure was less than potent.

Not Ideal

Yes, there were problems with the old system. For example, state legislatures commonly adopted resolutions “instructing” their appointed senators to vote a particular way. (Nine states instructed their senators to vote for the 17th Amendment.) These instructions were of questionable legal force but considerable political power if the senator hoped for reappointment.

It is difficult to discern, however, why such instructions from state legislatures are a greater evil than instructions from the many interest groups on the left or right that can shut off the candidate’s money supply. Indeed, it would seem to be a more liberal practice for a senator to be beholden to fellow elected officials than for a senator to be beholden to corporations, unions or generous billionaires.

Tea Party supporters of repeal misconstrue the potential benefits. They see the 17th Amendment as enhancing federal power at the expense of state and local government. But there is no reason to suppose, ex ante, that we can guess how the policy choices of a Senate selected by the legislatures would change. I would suggest, however, that there might be other benefits, some of them important in liberal terms.

First, if the Senate were elected by the legislatures, people would have a reason to pay attention to state legislative elections again, and that would be a good thing. The dominance of national media has weaned us away from following local politics, even though most governance is local. Anything that can get us to focus on non-national elections is good.

Second, the role of money and attack ads would change -- not vanish, but change. Political parties might try to spin the virtues of electing a red or blue legislature, and no doubt some of that campaigning would feature the usual insults to voter intelligence. Still, there might be fewer efforts to destroy the reputations and careers of actual living, breathing people -- if only because there would be too many potential targets. (For example, the General Assembly of Connecticut, a small state, has 187 members.)

Not Conservative

Third, a repeal might lead to more egalitarian results. According to the National Conference of State Legislatures, women hold 23.7 percent of all state legislative seats, versus 17 percent of the current U.S. Senate. About 8 percent of state legislators are black. In the U.S. Senate? Zero. If we imagine that the legislatures might send to the Senate their own members -- a practice that was historically common although not always followed -- we might even increase the diversity of the Senate.

Let me be clear. I am not saying that we should repeal the 17th Amendment. I am saying that we should be a little less, um, conservative in our attachment to the current constitutional arrangements and consider whether change might now and then yield benefits.

If on the other hand you think the idea is completely silly -- if you are quite certain that the original design was bad, and that we voters should get to choose directly those who govern us -- then I look forward to your support for my proposed constitutional amendment taking the confirmation of Supreme Court justices away from the Senate and giving it to the people.

(Stephen L. Carter is a Bloomberg View columnist and a professor of law at Yale University. He is the author of “The Violence of Peace: America’s Wars in the Age of Obama,” and his most recent novel is “The Impeachment of Abraham Lincoln.” The opinions expressed are his own.)

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