Is it time to repeal the 17th Amendment?

Is it time to repeal the 17th Amendment?
© Greg Nash

The 17th Amendment to our constitution changed the way Senators are chosen to serve in the Congress. As ratified in the original constitution, Senators were chosen by state legislatures to serve for a term of six years, while Representatives in the House were to be chosen by direct vote of the people. This is the principle behind “Bicameralism” - two branches of the legislative body answering to two separate constituencies, the Senate to the elected state governments and the House directly to the people. The 17th Amendment changed this to provide for Senators being elected by the popular vote.

There were two major arguments to justifying the ratification of the 17th Amendment. The first presumed the election process for Senators had become too corrupt. The second hinged on state legislature voting deadlocks resulting in delays for state representation in the Senate. A third minor factor presumed state legislatures were consumed with selecting a Senator.

Todd Zywicki in his outstanding review of the 17th Amendment for the Cleveland State Law Review echoes the current analysis challenging the validity of these arguments. He summarized the majority of evidence concluding: “…there is no indication that the shift to direct elections did anything to eliminate or even reduce corruption in Senate elections.”  “…Deadlocks were exceptional…the great majority of Senate elections were conducted without incident.” and “…the truth was that most legislatures took one vote at the beginning of each day and continued with their normal affairs.”

The Anti-Federalist Papers informs us that James Wilson stated “…one branch of the General Government, the Senate or second branch, was to be appointed by the State Legislatures. The State Legislatures, therefore, by this participation in the General Government would have an opportunity of defending their rights.”  James Madison, in the Federalist Papers confirms this view that “The Senate on the other hand will derive its power from the States…”

Zywicki further clarified that “By making the House and Senate accountable to different constituencies, the Framers [of the constitution] sought to thwart special interest…or ‘fractions,’ to pervert the legislative process…” 

These are the same factions that George Washington cautioned the country against in his Farewell address: “…faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation, the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction…”

Zywicki continues with “One important consequence of the shift to direct elections was to increase the need for money and organization to run expensive state-wide races … this has required Senators to supplicate themselves to special interests in the quest for money and power…Changing the method by which the Senate was elected undermined the check that bicameralism provided against special interest legislation.”

Zywicki quotes various scholars developing this position:

  • Jonathan Elliott: “Bicameralism … provided a heightened check against special interest legislation…”
  • Robert Higgs: “…tendency for interest groups of all kinds to demand that the government transfer wealth to them.”
  • H. Hoebeke: “There is widespread recognition in the literature that one important effect of the seventeenth Amendment has been to increase the role of political organization and money in the election of Senators.”
  • Terry Smith: “…money now dominates Senate Races.”
  • Vikram David Amar: “…to raise large amounts of money to campaign for many votes facilitated private interest group access to the federal government.”
  • Jay Bybee: “…the Seventeenth Amendment destroyed the systems of federalism and bicameralism which had previously checked expansionist federal activity.”

Can we assume from these assessments that the formation of election committees to receive political contributions coupled with the power of the political parties has removed the partisanship and corruption from the election of a Senator? Or can we assume that these factors have aggravated corruption and party politics in the election of a Senator? 

So what could the repeal of the 17th Amendment mean? Senators would no longer

have election committees which would limit the ability of special interest groups to contribute to the candidate’s bid for the office of Senator. Senators would no longer be bound by allegiances to these special interests. Candidates would not be obliged to receive funding from political parties for their nonexistent campaign limiting a Senator’s obligation to the national political party. Senators would be more obligated to serve the interests of their State, not without its own political intrigue, rather than a national political party or special interests.

Is it time to repeal the 17th Amendment and restore the concept of Bicameralism, two branches of the legislature “accountable to different constituencies” that “the Framers sought to thwart special interest…or ‘fractions’” from perverting “the legislative process”?

John M. DeMaggio is a retired Special Agent in Charge for the U.S. Postal Service Inspector General. He is also a retired Captain in the U.S. Navy, where he served in Naval Intelligence. The above is the opinion of the author and is not meant to reflect the opinion of the U.S. Navy or the U.S. Government.