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Repealing the 17th Amendment: Soon to be Mainstream Republican Policy

[ 84 ] August 13, 2012 |

Arizona Congressman Jeff Flake moves the mainstreaming of overturning the 17th Amendment another step forward. Yes, an increasing number of right-wingers want to repeal the constitutional amendment allowing for the direct election of senators by the people.

Why?

Because it’s much easier for corporations to cut checks to individual state legislators than trying to buy whole elections. They long for the days of William Clark buying the Montana legislature.

Given how quickly radicalism has become mainstream in the Republican Party, who doubts this is not a Republican talking point by about 2017? Not me.

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  1. Jonathan says:

    I’d be shocked if it wasn’t a Republican talking point by the 2014 mid-terms.

    • Erik Loomis says:

      I am rarely accused of being too optimistic. This may be a notable rare exception.

    • “I’d be shocked if it wasn’t a Republican talking point by the 2014 mid-terms.”

      Fine by me. Constitutional Amendments these days are even more unlikely than they usually are (you’re going to get 2/3 of both houses and 3/4 of the states in this political environment, really?). If they want to waste their efforts keening about direct election of Senators, let em shout till their throats are sore. Screaming about an amendment for abortion is at least a useful signalling mechanism, this is just pure wasted effort. Sadly, I don’t think they’ll go for it.

      • R Johnston says:

        Shouting about the repealing the Seventeenth Amendment is a highly effective signaling mechanism among moronic neoconfederate assholes, i.e. the Republican base. It’s one of those things that the 27 percenters care about.

      • mpowell says:

        I agree. With some extremists, there’s actually a risk they’ll pass some of their stupid crap in office. This is a non-starter due to the various hurdles, so talking about it just exposes these people as idiots. There aren’t any nearby plausible policies being mainstreamed by this talk either.

    • Heron says:

      When we consider the Republican electoral and legislative strategy of the last 3 or 4 decades, a wish to return to state-appointed Senators shouldn’t be too surprising. The Cons have put lots of effort into establishing and entrenching(via redistricting and general voter suppression) their power at the level of State elections, and a repeal of the 17th would allow them to abuse that legislative lock on states like Texas, and Ohio, and Florida to essentially disenfranchise half their voters by only appointing Republican Senators. Filibustering has been a Senate-only tactic since 1890, so by accomplishing the above and stacking the Senate, they would be in a much stronger position to disrupt legislation than they already are.

      • Heron says:

        I suppose I should also note that remaining “competitive” in those three states specifically is the only thing that keeps the modern Republican party in any way relevant. If election results in Texas began to actually represent the mixed political affiliation of its populace, or if Florida or Ohio became reliably Democratic, then that would mean the end of the Republican party as a competitive force in US politics. As such, it should be even less surprising that they are willing to do any and everything, no matter how nefarious, to keep two of them firmly non-representative (Texas and Florida), and to deeply compromise the election system of the third.

    • Wally says:

      You people are too funny. :-)

  2. efgoldman says:

    Assuming that Mittster and the Granny Starver go down in flames, and (FSM!) take the House with them, the circle of epistemic closure will grow ever tighter. The crazies will have complete and utter control of the GOBP. So yes, Loomis, you’re right. If anything you underestimate. I’d expect, by mid-2014, the TeaHadis will have proposed to repeal every amendment after the tenth, especially the 13th through 19th.

    • Malaclypse says:

      I’d expect, by mid-2014, the TeaHadis will have proposed to repeal every amendment after the tenth second.

      Adjusted your unwarranted optimism.

      • Prodigal says:

        I’d expect, by mid-2014, the TeaHadis will have proposed to repeal every amendment after except for the second and tenth.

        I hope I’m being excessively cynical in thinking this is even closer to future reality than your previous correction, but we’ll see.

      • firefall says:

        except the 10th!!

      • R Johnston says:

        They won’t propose to repeal that which they fail to acknowledge exists. They will, however,

        I’d expect, by mid-2014, the TeaHadis will have proposed to repeal every amendment after the tenth second, with the aid of a ridiculous media that treats them as Very Serious People, successfully mainstreamed the notion that the 13th through 16th Amendments aren’t really part of the Constitution.


        Adjusted your unwarranted optimism.

        Your pessimism is insufficient.

      • mark f says:

        I’d expect, by mid-2014, the TeaHadis will have proposed to repeal every amendment after but the tenth second

        I’m pretty sure they’ll save the First, but only in the sense that Ryan wants to save Medicare.

  3. Joe says:

    There actually is what seems to be an honest ideological sentiment in some parts (I have seen it online) that this would advance federalism though I still don’t quite know why denying the people a more direct means of election of senators would actually do that. As seen by the trend in the early 20th Century, unless state legislatures were blocked from doing so, most states (at least) would let the people have a way to elect senators even if they weren’t forced to do so or there would be some electoral college system that rubber stamps voter choice.

    • R Johnston says:

      There actually is what seems to be an honest ideological sentiment in some parts (I have seen it online) that this would advance federalism

      Impossible, given that the number of people who actually care about Federalism is exactly zero.

      • Joe says:

        “Actually zero” here is a statistical rounding error of some sort, apparently.

        Moving past attitude, people actually do care about federalism, which seriously would entail a complicated matter of deciding dividing national and local. Thus, yes, some actually think a state by state approach to same sex marriage is best.

        A twofer. The Constitution divided state and national too, which was not just something about “dirty peoples” and such. Those for local interest weren’t just worried about slavery.

        The “don’t I sound so snarky” tone doesn’t change this either.

        • R Johnston says:

          “Actually zero” here is a statistical rounding error of some sort, apparently.

          No, it really doesn’t. There is not a single person who claims to care about federalism who isn’t so obviously hypocritical on the point as to make the claim a clear cut lie.

          • Murc says:

            There is not a single person who claims to care about federalism who isn’t so obviously hypocritical on the point as to make the claim a clear cut lie.

            This is absolutely not true. I know, personally, a couple people who support federalism in the abstract because they genuinely do believe that on balance, the benefits outweigh the drawbacks.

            It would be more accurate to say that there is nobody operating either as an opinion-maker, professional political operative, or professional politician (all three at the national level) who claim to care about federalism and aren’t nakedly hypocritical.

            This is sort of an outgrowth of the mythical “reasonable Republican.” Those people do not exist at the national level, period, but I am sure many if not most of us know a person who self-identifies as a Republican but when you discuss public policy, there’s a fair amount of legitimate common ground.

            • R Johnston says:

              I think that even among non national political types claiming to care about federalism in the abstract that the claim tends to be false.

              Republican propaganda has been very successful at conflating the notion of bad government with the federal government in people’s minds, good enough that a lot of people who are simply against bad government express that concern as support for federalism. But of course tyranny, government corruption, and insane regulation have always been vastly more common at the state and local levels rather than at the federal level. This kind of “support” for federalism is like opposition to the PPACA among moderate and conservative non-political types: it disappears when you ask about specifics and give people detailed truthful information.

              A lot of people who claim to support federalism simply have no idea what federalism is or what the historical distribution of power between state and local governments has been. They think that highways and internets build themselves if they’ve given the matter any consideration at all.

              I doubt anyone claiming that the benefits of federalism outweigh the costs has sincerely and seriously considered all the costs associated with having 50 different bureaucracies with 50 different sets of rules, regulations, and forms in all kinds of situations where compliance costs could be vastly reduced by consolidation, much less considered the increased costs of compliance with thousands of local bureaucracies.

              It’s admittedly unfair to categorize all and perhaps even most claims of support for federalism from people other than political types as lies coming from hypocrites, but even those claims that aren’t don’t really stand up to scrutiny.

              • “It’s admittedly unfair to categorize all and perhaps even most claims of support for federalism from people other than political types as lies coming from hypocrites…”

                Perhaps, but only because calling them hypocrites implied that they’ve given enough thought to their “support” for federalism that they should be somewhat self aware of the contradiction. Whatever the case, I have yet to encounter anyone anywhere whose support for federalism did not extend up to and no further than the point at which their desired policies are more effectively advanced by the federal government than by 50 state governments.

              • Bijan Parsia says:

                I have to say that I’ve become much more sanguine in my antifederalism since moving to the UK. Of course, the UK is more like a giant state than like the US as a whole, but still. There’s all sorts of things which absolutely don’t need local innovation (driver’s licenses, sales tax, all sorts of regulation, etc.).

                State and federal taxes? Pfft. I guess I don’t mind some truly local taxes, but collect in one place and remit. Way more efficient.

                (My beloved spent 2-3 years trying to get her MD taxes straightened out after we moved mid year from NC. It was a freaking, ridiculous nightmare that has no value of any sort.)

          • Joe says:

            This is tiresome. Yes, there are people who care about federalism.

            “Federalism” doesn’t mean everything should be local, so the fact people, e.g., think states shouldn’t have abortion rights discretion because it’s a fundamental right or the reverse because of some right to life of embryos doesn’t change that.

            The people who care are not the sort of people we talk much around here like the pol referenced. It is the many perfectly reasonable sorts that are principled people who are not so easy to pigeonhole.

            As I said, there are some, e.g., who support gay rights but think the best path would be to change marriage state by state. They would think that’s the best way to reform marijuana policy and so forth. Just like in the Constitution, some things would be national, “federalism” being the rightful division of state and national, not some one size fits all “localism.”

            • Usually just lurk says:

              So, let’s pretend that there are people who care about federalism in principle. So what is the exact principle that determines which powers go to the states and which to the national government?

              Everyone I’ve ever met who cites federalism as justification for something clearly picks and chooses based on the issue at hand.

              My favorite example, which I mentioned here recently, is Saint Reagan who campaigned against the 55 mph national speed limit on a very specific federal principle – that it was “blackmail” to use the threat of withheld highway funds to force states to adopt a law – but later used the exact same “blackmail” mechanism to raise the national drinking age to 21. In truth there was no principle at stake, it was just different policy preferences.

              I don’t exclude myself from this comment. I thought it was entirely appropriate for the national government to end lynching and all of Jim Crow. But I hate it when the right wing passes national laws designed to circumvent state-level environmental laws on behalf of polluters.

            • Isn’t this just exhibiting the same behavior but hiding it at a higher level of abstraction, though? Besides questions of how likely or easy it is to get their preferred policies into law, how do people decide which issues should be decided at the state level and which at the federal level? Doesn’t it come down to which issues they personally are comfortable with adopting in a piecemeal fashion and which they feel too strongly about to leave up to the longer timeline with less chance of success?

            • ““Federalism” doesn’t mean everything should be local, so the fact people, e.g., think states shouldn’t have abortion rights discretion because it’s a fundamental right or the reverse because of some right to life of embryos doesn’t change that.”

              Um, if you’re going to define “federalism” as believing that policy that shouldn’t be handled by the federal government should be handled by state/local governments instead, then you’ve merely created the polar opposite problem for your argument: now everyone believes in federalism.

    • Bill Murray says:

      because the articles of confederation were between the states and are the true examples of federalism (or as it was called in the day anti-federalism). The subsequent constitution was between the dirty peoples and shouldn’t count

  4. DrDick says:

    Or more reasons why leaving regulation up to the states is a really bad idea.

  5. UserGoogol says:

    A certain radical-contrarian part of me feels like the 17th Amendment was a mistake because by implementing the direct election of Senators without getting rid of the Senate’s other serious flaws, it gave legitimacy to an institution which might otherwise have withered into irrelevancy like a House of Lords.

    But still, there’s not much point in “heightening the contradictions” of the Senate now in the hopes that it’ll somehow turn us into a Parliamentary democracy.

    • Holden Pattern says:

      How would it have done so? Because you need a constitutional amendment to make that happen. Everyone who thinks that you can get 3/4 of the states (which means a LOT of small-population states to get rid of their power over the large-population states, raise your hand.

      • Murc says:

        When Holden Pattern is questioning the efficacy of your belief in heightening the contradictions, you really gotta ask yourself, how far off the track HAVE I strayed?

        • Holden Pattern says:

          When have I made a heightening-the-contradictions argument, EVER?

          Criticizing His Geniusness The Obama, saying that we are on the road to heightened contradictions because of the intractability and venality of our ruling classes, and pointing out that palliative care doesn’t actually cure the patient (all things I DO do, and for which I am roundly and regularly mocked) is not the same as saying that we ought to actively seek pain.

      • Incontinentia Buttocks says:

        Not 3/4 of the states; 100% of the states. The equal representation of the states in the Senate is the one aspect of the Constitution that cannot be amended through the normal amendment process: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

        • Joe says:

          Well, the UK got around something similar by a two step process. First, get rid of the rule the normal way. That doesn’t itself deprive equal suffrage. Then, you can deal with the Senate itself.

          • mpowell says:

            SCOTUS might not approve.

            The difference between the UK and the US is that in the UK the lack of a formal constitution means that actors in the government function by a different set of norms. It is more like a living constitution in the UK and so when people started to realize that the house of lords was a terrible idea, people were less likely to raise principled objections to this kind of manipulation of the formal rules.

            • Pseudonym says:

              Well then we’ll just pass an amendment removing judicial review from the SCOTUS.

            • I would wager that if we got to the point of a governing crisis so bad that we radically altered the working mechanism of the Senate as a result, we’re going to do so with at least an implicit understanding that we don’t very much care if it’s technically Constitutional or not.

        • That one’s always the back breaker whenever you get into one of those “how can we ever reform the Senate” conversations. Even people who are reasonably well informed often don’t know it’s there.

        • Holden Pattern says:

          And so we see the oppression inherent in the system.

          Good catch, though.

        • greylocks says:

          True, however, the Constitution could be amended to limit the Senate’s powers and/or set rules by which it conducts business.

        • R Johnston says:

          Zero senators per state is equal representation. Replacing the Senate with the Senate Mark II requires only a Constitutional Amendment, not assent from every state.

          • Pseudonym says:

            But would zero out of zero senators constitute a majority? Or would it be a tie, leaving it up to the VP?

            • R Johnston says:

              Good point about the veep, but you can deprive him of his Senate vote with a regular old Amendment as well.

              • Pseudonym says:

                Maybe you could even argue that his role is unconstitutional, since it gives his state excessive power?

                By the way, would there be any special considerations if a presidential candidate were to run from D.C., say, or Puerto Rico, or Guam? Or Kenya?

                Asking for a friend.

        • Josh G. says:

          Not 3/4 of the states; 100% of the states. The equal representation of the states in the Senate is the one aspect of the Constitution that cannot be amended through the normal amendment process: “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”

          Yes, but there are ways you could limit the Senate’s power substantially without running afoul of that provision. For instance, you could have a Constitutional amendment saying that if the House passes the same bill twice in a row with at least one election in-between, it automatically becomes law without the need for Senate approval. (The British Parliament Acts do something similar, giving the House of Lords the ability to delay legislation but not completely stop it.) Under this amendment, no state would be “deprived of its equal Suffrage in the Senate”, but the actual powers of the Senate would be greatly reduced. I think a proposal like this would be a good thing to aim for in terms of Senate reform, because it addresses one of the big objections we hear (without the Senate, what stops the House from doing all kinds of crazy stuff because of a transient majority).

          • You can come up with a lot of zany schemes to get around Article V that may or may not pass Constitutional muster in theory, but that’s not even the half of it. Whenever people talk about disproportionate representation in the Senate, they talk about California and Wyoming having the same number of Senators. But that example elides the true magnitude of the problem.

            It isn’t just Wyoming, the Dakotas and Rhode Island that are over-represented in the Senate. If you take House delegates as your baseline (435 reps/50 states=8.7), you find that only thirteen states are actually under represented in the upper chamber.

            Under-represented in Senate (10 or more in House): California, Texas, New York, Florida, Illinois, Pennsylvania, Ohio, Michigan, Georgia, North Carolina, New Jersey, Virginia and Massachusetts (13 states).

            Roughly Proportional in Senate (8-9 in House): Washington, Indiana, Arizona, Tennessee, Missouri, Maryland, Wisconsin, and Minnesota (8 states).

            Over-represented in Senate (7 or fewer in House): Colorado, Alabama, South Carolina, Louisiana, Kentucky, Oregon, Oklahoma, Connecticut, Iowa, Mississippi, Arkansas, Kansas, Utah, Nevada, New Mexico, West Virginia, Nebraska, Idaho, Hawaii, Maine, New Hampshire, Rhode Island, Montana, Delaware, South Dakota, Alaska, North Dakota, Vermont, Wyoming (29 states).

            Just 1/4 of the states are actually under-represented in the Senate. Granted, those states contain 60% of the population, but that doesn’t matter at all for amending the Constitution. Even if you came up with some clever and plausible Constitutional amendment, you’d still need an awful lot of states to vote against their own self interest because an outright majority of states are over-represented in the Senate. It’s never going to happen. Abolishing the filibuster is the best hope we’ve got for reducing Senate dysfunction, and that’s going to be hard enough.

            • Heron says:

              The filibuster is a pure creation of the entirely voluntary parliamentary rules agreed at the start of every session under which the Senate operates. In theory, all it would take to unmake it would be a party with control of the Senate refusing to allow infinite debate, and refusing to respect legislative “holds” unless a rational, public justification is provided. One might see a return to “tradition” in the next session, but I suspect that if one party took this step, the other would stick with it out a spite once they won control, and at that point it would be pretty well established.

        • Jon says:

          But at the point where amendments start getting passed and the Article V guarantee comes into play, you’re also talking about super-duper majority political will in favor of change. In the scenario where 2/3 of the Congress and 3/4 of the states approve changes, I’d imagine there are also at least 7 or 8 votes on the Supreme Court willing to throw out the challenges of the Attorney Generals of Wyoming and Idaho (and, say, South Carolina).

          Say reform keeps the Senate around for appointments and treaties, but limits it to non-binding consent on House-originated bills. Or vice-versa. Nothing about “equal suffrage in the Senate” demands the Senate be a total check against the House if the country doesn’t want it to.

          The real problem is getting 3/4 of the states sign on in the first place. That part is not happening.

          • Heron says:

            Can the SC even weigh in on the Amendment process? I mean, the point of such a move would be to change the present Constitution to reflect new concerns, so the questions of “original intent” and the design of the pre-Amendment Constitution would be moot, wouldn’t it? If the SC can simply rule an Amendment “Unconstitutional” that would seem to me to defeat the whole purpose of the Amending process.

            • Jon says:

              But the constitutional challenge would be, presumably, that the amendment process itself was improper, not that the “kill the Senate” Amendment to the Constitution was somehow unconstitutional. Amendments must meet the requirements of Article V, or else they don’t actually amend the Constitution in the first place. Or so plaintiffs would argue.

              (quick googling turns up Hawke v Smith, a unanimous 1920 decision that Ohio properly ratified the 18th Amendment per Constitutional process. At a quick glance it looks like it was decided on the merits of the Article V procedures rather than some sort of doctrine that courts had to stay out of the amendment process).

      • UserGoogol says:

        No, it probably wouldn’t have happened. I usually ignore my radical-contrarian side, but I just wanted to let him out for this one time.

        The main thing is that as a matter of abstract tradeoffs, I think I’d prefer an appointed weak Senate to an elected strong Senate. So if the movement which produced the 17th amendment had moved to reform the Senate in a different way we might be better off. But of course, that’s not the choice now, and it wasn’t really the choice historically either.

        • Lee says:

          Even if the 17th Amendment didn’t pass, I don’t see how the Senate could slide into irrelevancy the way the House of Lords did. The House of Lords fought long and hard to retain its privileges. They were able to do so for a long time without a written Constitution to protect them.

          The Senate, unlike the House of Lords, had a written Constitution to protect them. A more likely scenario is that the Senate would end up as an institution that people hated but couldn’t do anything about.

          • MT_in_WI says:

            The Senate, unlike the House of Lords, had a written Constitution to protect them. A more likely scenario is that the Senate would did end up as an institution that people hated but couldn’t do anything about.

            There. Fixed that.

            • Pseudonym says:

              And yet at present it’s hard to argue that the Senate is the less sane of the two houses. (Not that that has anything to do with how well it functions or represents the people.)

  6. Jim Harrison says:

    Back in 1789, at least some of the debate was channeling Aristotle on the virtues of a mixed constitution in which the Senate would represent the oligarchical component against the democratic House and the monarchical executive. Granted the triumph of oligarchy in our times, any move to make the Senate even less democratic seems rather unnecessary.

  7. Incontinentia Buttocks says:

    FWIW, Germany’s upper house, the Bundesrat, is modeled after the pre-17th Amendment Senate, with the Parliament of each of the Länder (states) electing its members.

  8. Kyle Huckins says:

    So much easier than voter suppression.

  9. somethingblue says:

    In my more nihilistic moments I find myself strangely attracted by this idea. I’m doubtful that it would make the Senate more corrupt and dysfunctional, and at least I’d be spared the robocalls.

    • LosGatosCA says:

      It’s hard to believe that in the 21st century America would have to be fighting the rise of feudalism on so many fronts.

      It’s clear that the 225 years or so of constitutional rule and the steady, progressive emergence of a more democratic state for the first 190 years never dulled the appetite of the ruling elite for 100% dominance of the 99% in every way possible. Control their sex lives, their employment, their voting rights, and every other GD thing they can get their own hands on or pay someone to get their hired hands on for them.

      • Holden Pattern says:

        Power. It’s a hell of a drug.

      • rhino says:

        History is an interupted cycle of horrible-better-worse-better to slightly less horrible-slightly less worse- even less horrible… You get the picture.

        The feudalism we all lapse into (I include us fortunate enough tonlibe in Canada like myself) will not be quite as bad as the original. The democracy that eventually replaces it will be slightly better than what we enjoyed in 1960.

        So the world turns. Lamarkian rather.

        • rhino says:

          I blame the incoherent nature of this post on Alain bourgeut, who in 2005 made an utterly incredible wine from gevrey chambertin, and on my delightful women folk who between birthdays and anniversaries made it mandatory for me to drink several bottles of it.

  10. witless chum says:

    Pete Hoekstra was on about this recently, too.

    And I’m really not sure how much difference it would make in the senate. Maybe it’d be better for all the money being spent on Debbie Stabenow’s campaign to go into races to try to take back the Michigan house. A Democratic state house could really do a lot to minimize the Snyder damage in the next two years and might be some useful shit done on the non-Plutoracy Wow! portions of Rick’s agenda. He wouldn’t bother women or gays if he was freed from the mouthbreathers in his party.

    • rea says:

      Hoekstra naturallly thinks the legislature ought to elect the senate, because he couldn’t win a general state-wide election in Michigan if he were the last politician on earth

  11. Matt McIrvin says:

    I’ve known conservatives who have been pushing this idea for years. They tend to be people who are heavily into “states’ rights”.

    • Woodrowfan says:

      which never made a great deal of sense to me. You replace 2 Senators elected by each state for 2 Senators elected by each state. The only change is you introduce more opportunities for corruption and make the process less democratic.

      oh, wait… never mind…

      • I think the general logical progression works like this:

        A Senate elected by state legislatures will have a constituency of state governments, and will therefore be more in tune with state power concerns, and thereby less welcoming of federal power and, by extension, progressive policies. It’s actually a pretty sound theory, so long as you accept the premise that enacting right-wing policies is more important that having the right to elect your government.

      • Matt McIrvin says:

        I think the idea is that the Senators should represent the interests of the states specifically as opposed to the interests of the people in the states.

        Honestly, it doesn’t make sense to me either; I suspect the true general idea is that the more levels of indirection there are, the easier it is to disenfranchise black people, but I suppose that’s uncharitable of me.

  12. marc sobel says:

    The 17th amendment is a hidden tax on business by requiring the expenditure of millions of dollars to ensure a business supportive Senate. By limiting the selection controls up stream, you only have to spend a few hundred thousand to ensure a state legislature elects the proper kind of Senator.
    It’s like term limits, a drastic reduction in the cost of doing business.

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