We must repeal the 17th amendment in order to rebalance American federalism.
It once made some sense to centralize governance functions to make them more effective, just as it made sense to make manufacturing and production processes bigger to take advantages of economies of scale. Now good sense that recognizes technological change should clearly point us in the opposite direction, toward government based on subsidiarity as a well-crafted distributed system.1 We are blessed compared to most in having a governing system that aligns with this wisdom: federalism. Too bad we haven’t used it properly for going on a century now.
When anyone proposes repealing the 17th amendment, and it happens from time to time, the reaction of the typical citizen is of course to wonder what the heck the 17th amendment is. You can go and ask any random hundred people on a suitable street corner and my guess is that not more than one or two would know the answer. Then, when you tell them what the 17th amendment is about and repeat that you want to repeal it, the most likely reaction you get is that folks think that you fell out of a tree and hit your head. Be that as it may, I still think we should repeal the 17th amendment.
In 1913, the very structure of the checks and balances the Founders created for the American Federal system was altered, and the result has been unfortunate. The Founders created a system with both “vertical” and “horizontal” balances. The horizontal ones we all know well: between the Executive, Legislative and Judicial branches. The vertical ones inhered in our system of federalism, especially in the balance between the interests of the states as states and the Federal government. That’s why the Founders directed that U.S. Senators be elected by State Houses, and of course they were—until 1913.
After the Civil War, however, Congress passed some really bad laws that compromised the workings of the original system, with the result that many people came to believe that the indirect election of the Senate was undemocratic and prone to corruption.2 But the result of changing the original system is that it has fallen to the Federal courts to preserve the interests of the states and to keep the balance within American federalism, something the Founders never intended.
Worse, severing the sinews of accountability between local and Federal jurisdictions has enabled, among other factors, the vast growth of the Federal government and its bureaucracy at the expense of state policy responsibility. The result has been, in part, the substitution of administrative regulations for actual lawmaking (recall Humphrey’s Executors), to the point that those who actually most influence our lives—the “reg” writers in the Federal and state bureaucracies—are not elected at all.
Ah, once again good intentions paved the road, if not to hell, then to a less democratic result. The direct election of the Senate was supposed to save democracy from the corruption of “smoke-filled rooms”, but the result has been to make the corruption of the Senate easier and more economical at the hands of today’s large corporate and financial lobbies. And is the distance between an average citizen and his or her U.S. Senators greater then, or now? Then, a citizen could “get to” a Senator though his or her local state government representative, someone a citizen was and is still far more likely to know and see face-to-face. Now that is essentially impossible for all but a tiny fraction of well-placed Americans.
The direct election of the Senate violates the sacred Jeffersonian principle of subsidiarity. What neighbors can settle, they should settle. What those in the same congressional district can settle, they should settle, for who knows their interests better than they do? Yes, it’s true that “state’s rights” advocacy is entangled with a parochial and racist past in many places, and yes, local know-nothingism is nothing to snuff at. But Tip O’Neill was right to say that all politics is local—or should be, to the extent possible; people have the right to make their own mistakes. What we’ve done since 1913 is make government more distant from the average person, essentially letting others make mistakes for them. We’ve made it harder to solve problems where they are most easily, most sensibly and most cost-effectively settled: locally.
But the most damage has been done to federalism itself. Federalism is not about just dividing the tasks of government between different echelons of administration. It is also allowing enough flexibility in a sprawling and diverse nation to accommodate differing solutions for similar problems in different communities. I will get to this point in in a later post discussing the culture wars, but it is a larger matter than that. There are pretty obviously a lot of people who want government to absorb 30-40 percent of GDP, or at least they vote like they do. And there are a lot of people who prefer the 15-25 percent share. The way the American federalism has been distorted today, we lack the flexibility to give people in, say, rural “red” Oregon what they want and at the same time give people in, say, more urban “blue” Rhode Island, what they want. It does not have to be this way. It is possible, within broad parameters, to allow both “blue” and “red” models, which correspond roughly to less- and more-urban models, to coexist in America if we return decision authority to the states and to local communities. The way the Federal government has come to essentially coerce the states into one-size-fits-all templates makes this impossible, however.
This one-size-must-fit-all straitjacket we have donned is in turn one of the deepest root causes of our civic participation crisis. Average people feel they have no voice, except to vote once every four years. They don’t see how they can participate in politics in a way that has a bearing on their own daily lives. It’s no wonder most people take no interest in local and state government: It doesn’t do much of anything that really affects them, except provide designer license plates for those who care about such things.
The result, too, is that Mancur Olson’s aforementioned “logic of collective action” walks through a wide open door at the local level as well as at the national level: Special interests, like developers, for example, who are few in number but who have big and well-focused stakes, win out over the vast majority who have smaller and more diffuse stakes. Repeal the 17th amendment and all that will start to change. If State House representatives elected your two U.S. Senators, as James Madison, Thomas Jefferson, Ben Franklin and their colleague intended, you would damn sure take more of an interest in your local government than you probably do now. So would your neighbors, and then local special interests would not be able to get away with the semi-legal larceny they now practice on a massive scale.
We need to reinvigorate political life in America on the level that makes it real for ordinary citizens. We need to make it possible for people to participate meaningfully in public life. PTAs are great, and so are voluntary neighborhood civic associations. But they’re not enough; that’s not what the Founders had in mind. We need to return the proper, original balance back to our Federal system, and we have to stop the inherent coercion of the states by the Federal government via budget-bludgeoning and other unfortunate Court-approved methods. To do that, we must repeal the 17th amendment. It won’t be as easy as repealing Prohibition, but it’s far more important—and that’s really saying a lot if you happen to like a few fingers of single malt, neat, once in a while.
1One writer has extrapolated this point to argue that large states are now often examples of diseconomies of scale. See Ignasi Ribó’s Habitat: The Ecopolitical Nation.
2This too has an involved and fascinating history that includes the origins of the primary system we have today.