By Jack Aldon Yenni, Seattle University Guest Contributor
This article was originally featured in our special election 2020 magazine, (p.11) released 16 November 2020, which you can view here.
Maya Angelou, that great poet of the 20th century, once emphatically stated, “when a person shows you who they are, believe them the first time.” I don’t think the scope of this advice is limited to individuals— I believe it holds equally true for political movements across time. In this spirit I want to examine the hundred-year-old precursor to this resurgence of proposed populist reforms from the American Progressive movement, the Seventeenth Amendment to the U.S. Constitution.
I don’t need to get into the woods on modern progressives’ rash objectives of eliminating the filibuster, eliminating the electoral college, packing the supreme court, and the like. All are rash, reckless, and borne of the short sighted nature of believing that political fortunes remain unchanging ad infinitum. It is not worth examining these here and now because they exist only in the fantasies of the most idealist political observer, unripe for action for at least another many years. But this is not the first time progressives have donned the banners of “equality” and “democracy” to mutilate our system of government, all to the true end that it might be politically expedient. The crowning jewel of this cause, sponsored by Theodore Roosevelt himself, was the Seventeenth Amendment, an abject harbinger of Congressional dysfunction and the symbolic death of a once deliberative Senate.
The Seventeenth Amendment, ratified in 1913, provided for the direct election of U.S. Senators. Prior to this, many states held referendums for Senate candidates, but ultimately the power to fill a Senate seat fell to the legislature of each state. Needless to say, such a profound alteration in the membership of the Senate had a significant impact on that body’s ability to function, one I would argue is to the nation’s detriment.
One of the gravest consequences of the direct election of Senators was the assimilation of those members to the members of the House of Representatives. It does not take an in-depth reading of the Constitutional Conventions to understand that the entire purpose of a bicameral legislature is to maintain two deliberative bodies, distinct in their rules, traditions, and the composition of their members. In fact, we don’t even need to infer this point, as James Madison said as much in Federalist No. 62, explaining why the minimum age and term of citizenship is higher to serve in the Senate. He writes, “the propriety of these distinctions is explained by the nature of the senatorial trust, which, requiring greater extent of information and ability of character, requires at the same time that the senator should have reached a period of life most likely to supply these advantages…”. From this, the explicit affirmation that Senators are meant to wield greater extent of information and ability of character, it is evident that the appointment through state legislatures of senators was intended to ensure these attributes in appointees. Thus could the Senate be a counterweight to the popularly elected House of Representatives, a body whose members could enjoy less public pressure as they voted, insulated from the shifting sands of public opinion. Instead, the Seventeenth has rendered the Senate into a glorified House.
Also of great concern to the Framers of the Constitution was the tenuous relationship between the state and federal governments, and no facet of or amendment to the Constitution since that day has been more odious to this relationship than the Seventeenth. As Madison again writes in Federalist No. 62, the purpose of legislative appointment of Senators is to, “give to the state governments such an agency in the formation of the federal government as must secure the authority of the former [state governments], and may form a convenient link between the two systems.” Indeed, so brilliant were the framers that they were not content to leave checks and balances as an intra-government exercise, but even proscribed inter-government checks and balances between the federal government itself and the state governments. The Supremacy Clause is a check on the state governments, and the Tenth Amendment is a balance, limiting the power the stronger federal government may levy on the states. But the one concrete check, the one piece of direct influence the states had over the federal government was these Senate appointments. They were, indeed, the one safeguard against injurious federal overreach. The states now lack a check of their own over the federal government, that baby has been thrown out with the bathwater.
Before I continue, it is worth at least paying lip-service to the arguments in favor of that scarred wound on the face of the Constitution. They tell you that it is an anti-corruption measure, necessitated by unprecedented Gilded Age corruption, that corrupt state legislators were facilitating moral rot within the federal government and needed their influence curtailed. Not only is this wrong on its face, as fewer than .5% of senate appointments during 1789-1909 were found to be improperly influenced, the amendment itself was hardly a blow to these lobbyists, fully aware that the need to now run full, statewide campaigns to remain in office would even more greatly beholden those senators to monied interests upon whose donations they rely. This seems to be the lesson Progressives refuse to learn: that you cannot address the problem of money in politics by democratizing the electoral system.
We must also not overlook the severe structural damage the amendment inflicted on the Constitutional System itself. First, consider the Constitutional process of appointment not as an oppressive measure meant to deny people their god-given right to vote, but a natural part of representative democracy. From there we see the degrees of representation within the federal government, which exist not because citizens cannot be entrusted their own government, but because there are aspects of statecraft which require both particular expertise as well as protection from the rancor political non-sophisticates can be known to drum up around important decisions. These levels of popular removal are not sleights on democracy, they are defenses against majoritarianism, shielding more sensitive positions from mob rule. In the Federal government, the House of Representatives once stood alone in being directly elected, one degree from the people. The Senate, meant to counterbalance the House in many ways, was separated from the people by two degrees with state legislators serving as intermediary. The President was given a similar two-degree separation through the electoral college. Finally, the Supreme Court and certain executive appointments, positions the framers felt ought to have as little to do with popular politics as possible, were separated from the people by three degrees, nominated and confirmed by two offices of two-degree separation. Now consider that we shift the Senate down one degree of separation and the consequences are immediately apparent. The Senate is now electorally the same as the House, and the same public pressures that cause one to err now guide the other to similar folly. The process of nominee confirmation is now imbalanced, as any keen observer will now recognize the Senate’s weakness in the face of a controversial nominee, fully subjugated to the loudest voices of their constituents. Beginning with Robert Bork, Senators trying to get noticed towing their party line have grown increasingly hostile to every nominee put forward by a President of the opposing party, irrespective of that nominee’s qualifications or demeanor. The main factor in the over-politicization of the Supreme Court is that Senators are afraid of losing primary elections and so feel undue pressure to make their record as incontrovertible as possible to the most extreme elements of their party, lest they lose reelection.
These are consequences of an interjection of democracy into the system which was entirely arbitrary. I give modern progressives some credit for their consistency in trying to terminate the electoral college as well, an equally ludicrous proposition, but why then do they feel content to stop there? Shall we next elect the federal courts, or just the Supreme Court? Once we have secured the popular vote for President, shouldn’t we consider recall elections? Four years is so long and the 65 million political geniuses and scholars who now decide the winner may change their minds after all. Better yet, if you want to be really progressive, really really progressive, you would of course be in favor of a nationwide referendum whenever the need arises. Repeal the Affordable Care Act? Let’s all vote on it. Send in Seal Team Six to the Abbottabad compound? Get out your smartphones and vote on it. Does the right to gay marriage have legal footing as it applies in the case of Obergefell v. Hodges? I hope you’re paying attention because voting ends tonight at 9:00 PM eastern. No, even the most egalitarian of activists recognizes how preposterous such a situation would be, and yet in more moderate amounts they wholeheartedly embrace the desecration of representational government.
But there is a problem with a simple repeal of the Amendment: deadlocking. Before the popular vote which almost always provides a decisive winner, Senate appointments were frequently held up in their respective legislatures similarly to how legislation might die in congress. This was unsustainable because, unlike laws, there needs to be constant upkeep around senate vacancies, lest states lose representation in Congress. To address this, I propose the following amendment in the Seventeenth’s place:
When in the case of timely election of a member of the Senate, or in case of a vacancy thereof, each House of the Legislature of the State shall confirm, by simple majority vote, their candidate for that seat. If both houses present the same qualified candidate, that individual becomes Senator-elect. If both houses vote three times and present opposing candidates, the Governor of the state is then empowered to select from between the two candidates submitted by each house of the legislature, and that individual becomes Senator-elect. If one house cannot reach consensus within itself, then the candidate of the other becomes Senator-elect. If both houses are unable to present a candidate, then the Governor is empowered to nominate two candidates to be voted on by the legislature sitting in a joint session, whereby the candidate with the plurality of votes becomes Senator-elect.
While keeping with the original spirit of senatorial appointment, this amendment addresses the problem of gridlock by providing for each possible contingency.
Progressives, for your own sake, do not do away with all degrees of representative democracy. These are not the enemies of your democratic ideals, they are the very mechanisms by which your ideals can function to begin with, protecting those parts of the government which would be crushed totally under the weight of public pressure, but letting those that could withstand it be embraced by the voice of the people. The Seventeenth Amendment stands in the face of representative democracy, an embarrassment to the American system. It is the symbolic hammer taken to the keystone of our federal system, so we should not be surprised when the bridge then collapses.
Madison, James, et al. “Federalist No. 62.” The Federalist Papers, 1788, pp. 159–163.
Rossum, Ralph A. “The Seventeenth Amendment and the Death of Federalism.” The Philadelphia Society, 3 Oct. 2003.
Jack Yenni is a self-described Blue Dog Democrat from Raleigh, NC, studying Political Science at Seattle University, and was generous enough to allow us to feature his opinion piece.