Repeal the 17th Amendment? Don’t bother!

Everyone knows what happened at Philadelphia in 1787, when the large States (Virginia, New York, Massachusetts, and Pennsylvania) faced off against the small States on how Congress should be structured. At what has come to be called the Constitutional Convention, the large States wanted representation to be based on population. Never, said Delaware and New Jersey, and the other small States. Each state should have an equal voice.

by Gordon Jones
by Gordon Jones

The impasse threatened to de-rail the convention until Roger Sherman of Connecticut put forward the “Great Compromise.” Let’s have two houses, Sherman said. In one the States will be represented equally; in the other, population will prevail. If we require agreement between them, the people’s interests will be protected, but so will the States’.

And so it was ordained. The large States could dominate the House of Representatives by virtue of their populations, but the small States could dominate the Senate by virtue of the fact that there are more of them.

To demonstrate the principle, consider these numbers:

There are 435 members of the House of Representative. A majority of them is 218. Representatives from the nine most populous States, if they vote together, can produce 223 votes in the House. (The nine, for those interested, are California, New York, Texas, Florida, Illinois, Georgia, Pennsylvania, Ohio, and Michigan.)

In the Senate, all is changed. There a majority is 51, which can be produced by the two Senators from each of the 26 smallest States, if they hang together. Those 26 States have only 20% of the population of the U.S. (Again, for those keeping score, the 26 are South Carolina, Louisiana, Kentucky, Oregon, Oklahoma, Connecticut, Iowa, Mississippi, Arkansas, Kansas, Utah, Nevada, New Mexico, Nebraska, Idaho, Maine, New Hampshire, Hawaii, Rhode Island, Montana, Delaware, South Dakota, North Dakota, Alaska, Vermont, and Wyoming.)

A cursory examination tells us that it is unlikely that either of these coalitions is ever likely to form, let alone hold together, but that doesn’t undermine the analysis. The principle prevails today as it did in 1787: the small States are protected in the Senate; the large States get their way in the House.

This Great Compromise allowed the convention to get on with it and create the United States of America.

The 17th Amendment defenestrates this compromise, and that’s all there is to it. Direct election of Senators by the voters produces a very different body from one in which the state are represented as States. To simplify the argument, let me just note that any legislation imposing major mandates on the States (think ObamaCare!) could not pass a Senate – no matter its political makeup – where the States themselves were represented.

Conclusion #1: those of us sensitive on the subject of States rights should favor repeal of the 17th Amendment.

Not quite so fast. It really is not that simple.

To begin with, the original arrangement didn’t always work perfectly. What if (as actually happened regularly) a state legislature couldn’t agree? Maybe the lower house was controlled by the Whigs and the upper house by the Free Soilers? There might be enough intra-party friction (even in unicameral Nebraska) that a decision couldn’t be reached.

There are historical instances of States represented in the Senate by only one Senator, and occasionally none at all, sometimes for years. In January of 2014, there were four States with split legislatures. Maybe they could agree, but it’s not certain. With inter-party rancor at the levels of today, it is pretty clear that repeal of the 17th Amendment will provide yet one more arena for conflict.

Then there is the question of money.

It is hard (for me at least) to figure out how much state legislative elections cost in Utah, but my back-of-the-envelope estimate of $50,000 per house race and twice that for the senate gives us a total of a bit more than $4 million in each cycle.

Compare that to the $12 million Senator Orrin G. Hatch spent in 2012. The 150 house candidates and the 30 senate candidates that year spent only a third as much as Hatch spent.

Clearly, if you want to get into the U.S. Senate, it’s cheaper to buy the legislature. And a lot less trouble.

Repealing the 17th Amendment does nothing about this temptation. Hatch’s is not by a long shot the most expensive Senate campaign (though it might be, per capita). The 10 most expensive Senate races in 2014 (not one of them from California, Texas, New York, or Illinois, by the way) averaged almost $36 million.

In addition to these points, there is the real killer: repealing the 17th Amendment will have zero effect in the real world!

Faced with some of the problems indicated above, the States (those clever devils) moved toward direct election of their Senators on their own. By 1912, when the 17th Amendment was proposed, most States were, in effect, already choosing their Senators by popular vote. Candidates placed themselves before the voters, and the legislatures simply ratified the preference of the citizens as expressed in referenda.

To get back to the original system, assuming Congress sent a repealing amendment to them, the state legislators, in ratifying it, would be saying to the citizens of their States “you shouldn’t be entrusted with the choice of Senator, so I’m going to take it back from you.”

I’m not sanguine about the electoral chances of any state legislator making that argument.

If Conclusion #1 isn’t the right one, what is Conclusion #2?

The real problem is that our federal system is out of balance, with far too much political power concentrated in Washington, D.C. The 17th Amendment was a contributing factor to that imbalance, but that boat sailed long ago. If repeal will accomplish nothing, what is to be done?

We spend a lot of time thinking about the horizontal separation of powers between legislative, executive, and judicial branches, but not nearly enough thinking about the vertical separation of powers between the States and the national government. The Founders thought that was at least as important.

Assuming we are not going to resurrect John C. Calhoun and Jefferson Davis, it seems to me that there are some steps that could be taken.

  1. Repeal the 16th. As between the direct election of Senators and the effects of the federal income tax. The latter is far more significant in the nation-state imbalance. These are old numbers, but (a) I can’t find any more recent and (b) the situation is unlikely to have gotten any better: in 1929, the federal government collected 17% of all taxes; the States collected 23%, and local government collected 60%. By 2001, while the State share had remained about the same (20.3%), the feds (60.5%) and local government (19.2%) had swapped places.

The income tax has probably had more of a centralizing effect on our country than direct election of Senators. The 16th Amendment starves the States of the money they need to serve their citizens. Given a choice, repeal of the 16th promises a much higher ROI.

  1. The “police power” has also moved to Washington. This is far more than law enforcement. The police power deals with all the social relations between and among people, such as education, welfare, etc. (And marriage.) It was traditionally the province of the States. Given the policy failures of the national government (think ObamaCare!) these days, the courts might be prepared to look favorably on a move to restrict the Commerce Clause to something closer to its original reach.

What is needed is a long-term legal strategy put together by a state or a group of States.

  1. Utah state representative Ken Ivory is trying to so something like that over the question of the public lands, thinking long-term and moving incrementally. His effort is another step that could restore the federal-state balance, and his model could serve for the police power as well.
  1. A few years ago Utah’s Representative Rob Bishop put together a “Tenth Amendment Project,” highlighting state successes and federal failures in public policy. Conceivably, such an effort could lead to the formation of a Council of States that could weigh in on federal policy proposals.
  1. State Senator Howard Stephenson at one time proposed that the state legislature evaluate the job performance of Utah’s U.S. Senators. Senators Hatch and Lee come to the legislature once a year, but their speeches are more window-dressing than anything else. They need to have full-time staff at the legislature, and in the governor’s office when the legislature is out of session, taking the temperature of the locally elected representatives, in terms of policy proposals in Washington.
  1. The States (and their cities and counties) need to be more careful with their participation in such groups as the National Governors Association and the League of Cities and Towns. In theory these organizations help Washington understand local interests; in practice, staffed as they usually are by old Washington hands, they expend a lot of effort explaining to the local officials why what Washington is doing isn’t so bad, and how to get money to do more of it.

Dissatisfaction with Washington is at an all-time high. Now is the time to direct grass roots activism into realistic channels. The grass roots need to focus on things that can actually get done, not chase the will-of-the-wisp of 17th Amendment repeal. It isn’t going to happen, and would be, in a word the Framers loved to use, “nugatory.”

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