Repeal the 17th Amendment?

By: Gene Healy

Quick, what’s the 17th Amendment? Good on you if you didn’t need a lifeline: It’s the one that mandated direct election of senators, instead of having them appointed by state legislatures.

Thanks to the wonderfully impertinent Tea Partiers, that 1913 “reform” is no longer just the stuff of trivia — it recently made headlines in House and Senate races.

Two Republican nominees for House seats — Ohio’s Steve Strivers and Idaho’s Raul Labrador — have expressed sympathy for repeal. And Tim Bridgewater, one of two Tea Party candidates who last month knocked off sitting Sen. Robert Bennett, R-Utah, argues that “if the states elected their senators, legislative monstrosities like ObamaCare or [No Child Left Behind], with their burdensome mandates, would never see the light of day.”

Predictably, the liberal intelligentsia has responded with scorn. Of all the “goofy ideas from those lovable wacky Tea Partyers [sic],” John Aloysius Farrell writes at, this is the “stupidest.” Repeal talk is “truly regressive,” even “Paleolithic,” Timothy Egan seethes in Sunday’s New York Times.

Apparently, the only thing worse than peasants with pitchforks is peasants with pocket Constitutions.

But there’s nothing silly or retrograde in deploring the effects of an amendment that has done untold damage to federalism and limited government.

“Let the state legislatures appoint the Senate,” Virginia’s George Mason urged at the Philadelphia Convention of 1787, lest a newly empowered federal government “swallow up the state legislatures.” The motion carried unanimously after Mason’s remarks.

So it’s probably fitting that it’s a George Mason University law professor, Todd Zywicki, who has done the best work on the 17th Amendment’s pernicious effects.

Zywicki shows that selection by state legislatures was a key pillar of the Constitution’s architecture, ensuring that the Senate would be a bulwark for decentralized government. It’s “inconceivable,” Zywicki writes, “that a Senator during the pre-17th Amendment era would vote for an ‘unfunded federal mandate.’ ”

In the grade-school morality tale offered by Egan and others, noble Progressives pushed the amendment as an antidote to corruption. Yet Zywicki found “no indication that the shift to direct election did anything to eliminate or even reduce corruption in Senate elections.”

Indeed, “the increased power of special interests was the purpose of the 17th Amendment,” Zywicki writes. “It allowed them to lobby senators directly, cutting out the middleman of the state legislatures.”

Maybe that’s why corporations and urban political machines — Progressives’ supposed enemies — supported the amendment.

Together with the 16th Amendment establishing an income tax, the 17th Amendment helped transform the states into little more than administrative units for the federal behemoth. The feds have the gold, and they increasingly make the rules — in education, health care, and more.

Over the next decade, Obamacare will lead to $34 billion in new state spending on Medicaid alone, according to the Congressional Budget Office. With the Senate co-opted, state attorneys general can only look to the federal courts to save them from that unfunded mandate.

Unfortunately, repealing the 17th Amendment would be almost impossible. Since Congress won’t propose the repealing amendment, you would need two-thirds of the states to call for an amending convention — something that has never happened.

And repeal might not change anything. By 1913, more than half of the states had already adopted mechanisms that effectively bound state legislators to the voters’ choice, and it’s hard to imagine their 21st century counterparts ignoring the people’s will in senatorial selection. “Democracy is popular,” Zywicki notes dryly.

Repealing the 17th is a noble but quixotic goal. However, by focusing on the damage that amendment did, the Tea Partiers have drawn much-needed attention toward the problems that plague us. And diagnosis, one hopes, is the first step toward an eventual cure.

Examiner columnist Gene Healy is a vice president at the Cato Institute and the author of “The Cult of the Presidency”.

Cato Scholar to Tea Party, Beware of the GOP

by Mytheos Holt

Given the strong prospects for GOP resurgence in the upcoming elections, and the intimate connection which said resurgence is sure to have with the fortunes of the Tea Party Movement, it is no surprise that advice is presently being offered to that movement from all sides. The most recent instance of that advice comes from Cato Institute scholar John Samples, who has released a video under the aegis of the Institute entitled “Advice to Tea Partiers.”

Samples is also the author of the book The Struggle to Limit Government, a political history book which convincingly makes the case for a libertarian resurgence within the GOP grounded on Reaganite principles. The video, which in some ways is a much simplified version of the book, offers five points of advice, many of which are well-taken, but some of which are grounded more in wishful thinking than in actual political savvy.

On that note, the video begins with the dubious statement that because of the “spending” and “expansion of government” that was present during the Bush years, “the Republican Party is part of the problem.” This is a lead-in to point 1, entitled “Republicans Aren’t Always Your Friends.” Samples points out, correctly, that when Reagan’s budget director David Stockman tried to get much-needed budget cuts through the White House, all the various department heads opposed these cuts even as they worked under one of the most spending-averse Presidents since Calvin Coolidge. He takes this as evidence that the culture of entrenched programs in Washington can corrupt everyone, Republicans included.

On this much he is right. However, it’s worth noting that part of the issue with Reagan’s cabinet was also that it had to be selected in order to pass a Democrat-controlled Senate confirmation process, and thus was probably more moderate than anything Reagan envisioned. Thus, the conclusion that can be drawn from Samples’s video is not that mistrust of Republicans is the right option, but rather that mistrust of Democratic legislatures is the right option, for even under Republican presidents, such legislatures can wreak havoc on the agenda of limited government.

But more fundamentally still, Samples mistrusts the Tea Party movement itself, as shown by his second point, “Some Tea Partiers Like Big Government.” He points out, for instance, that some Tea Partiers like Social Security and Medicare, and consider them “worth the cost.” This could be problematic in the long term, and Samples is right to observe as much. However, it is not an argument for mistrust of the movement in the here and now, when everyone agrees that the newest entitlement, Obamacare, is sure to be a disaster. As such, it might be best to hold off the debates on Social Security/Medicare until such a time as Obamacare is itself repealed, and these older programs are more closely situated to the fiscal chopping block.

Something which, I might add, will never happen if Tea Partiers listen to Samples’ third point: “Democrats aren’t always your enemies.” From the Tea Party perspective, yes, yes they are. Samples makes a salient point that Democrats have historically supported tax reform, which he interprets as a sign that they oppose using tax incentives to “control” the economy. Actually, the reason Democrats support tax reform is because they can’t abide people not being taxed, and the only reason Reagan was able to ally with them on tax reform in 1986 was because he’d already gotten tax cuts through, and held all the political cards due to his overwhelming popularity. In other words, the only reason the Democrats were incentivized to work with Reagan at all was because he had crushed, demoralized and utterly derailed their liberal agenda. That agenda, at least for the present, isn’t going anywhere, and there’s no room to accommodate it if the Tea Partiers truly want to see limited government.

Samples’s fourth point, that “Smaller Government demands restraint abroad,” is persuasive within limits, but in defending it, he runs into a few classic libertarian fallacies regarding the Bush years. For one thing, in arguing for cutting defense spending, he seems to believe that “small government” is synonymous with “weak government” or that a warfare state is necessarily as controling of peoples’ lives as a welfare state. Naturally, neither assumption is true. Also, while it is true that cutting Defense spending is not mutually exclusive with increasing military efficiency, this shouldn’t be taken as carte blanche to cut it, nor should the notion of cutting defense spending be embraced as a positive good under all circumstances. It would be nice to be able to cut back on United States intervention abroad, but in order for that sort of cutting to happen, first the United States’ enemies have to be put in sufficient fear of their lives, and the United States’ position as a dominant power at the international stage has to be maintained. To support anything else but American dominance would make the Tea Party movement as complicit in the management of American decline as Obama himself.

Finally, Samples makes the oft-cited libertarian point that “Social Issues should be left to the States.” Samples points to Reagan and the 1994 Republican Freshman class as examples of successful conservative victories which were won without fighting over social issues, and to some extent, he’s right about both. However, Reagan’s recalcitrance on social issues actually lost him trust among the New Right movement, which was to the late 70’s what the Tea Party Movement is today. Had Reagan not made a few concessions – such as saying “I endorse you” to the Association of Religious Broadcasters – he might have run into more trouble. It is also worth noting that the 1994 freshman class, while they didn’t mention massive/religiously grounded social issues like gay marriage or abortion in the “Contract with America,” they did mention lesser types of social issues, such as crime prevention. To try to run away from these facts would be pure wishful thinking, and indeed, the fight over many of these “social issues” is being waged precisely because the combatants on the socially conservative side want to leave them to the States. To lay blame at the feet of the GOP for bringing the subject up, therefore, is highly mistaken, since these issues would not exist if not for the Federally grounded interference of liberals.

Still, the video contains a great deal of interesting ideas, some valuable facts and enough general merit that Tea Partiers everywhere should watch it and make up their minds. Ultimately, however, there is little doubt that trying to offer advice to the movement is unlikely to achieve terribly significant results. The Tea Party movement is, perhaps uniquely, more a spontaneous order than a top-down movement, and will adapt itself to the circumstances insofar as that adaptation is necessary. This is its great strength, and the reason why it stands as the most effective counterpoint to Big Government in the modern day.

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