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Op-ed Placement

Want to Fix the Senate? Repeal the 17th Amendment

BY Jason Pye and Sarah Anderson
10/19/2018
Originally Published in RealClearPolicy by Jason Pye and Sarah Anderson on 10/19/18.

Recently, there have been several complaints from leftists about the Senate, particularly since the confirmation of Brett Kavanaugh to serve as an associate justice on the Supreme Court. They complain that the Senate is undemocratic and should have proportional representation like the House of Representatives.

Senate procedures are frequently criticized by Republicans and Democrats alike. Hurdles such as the 60-vote threshold to limit debate make it difficult to pass legislation. And until 2013, when Democrats had control of the chamber, 60 votes were required to invoke cloture on all nominations by the president, except Supreme Court nominees.

At the time, Democrats had a 54-seat majority, including two independents, and complained that Republicans were blocking nominees to various executive agencies. Majority Leader Harry Reid (D-Nev.) led an effort to eliminate the filibuster and quickly confirm then-President Barack Obama’s executive and judicial appointments.

Last year, with a 52-seat majority, Majority Leader Mitch McConnell (R-Ky.) and Republicans, using the precedent established in 2013 under Democratic control of the Senate, eliminated use of the filibuster for Supreme Court nominees. The filibuster for legislation remains intact.

As envisioned by the Framers of the Constitution, the Senate was to represent state interests in Congress. The House of Representatives was meant to be the part of the legislative branch closest to the people. Article I, Section 2 of the Constitution specifies that representation in the House is based on population of the states and its members are directly elected.

Our bicameral legislature — a lower chamber with proportional representation based on population and an upper chamber with representation equal for every state regardless of population — was not created thoughtlessly. In fact, it was borne out of intense and lengthy debate on the structure of America’s future government and, specifically, on how to balance the interests of small states versus large states.

The agreement reached between small-state interests seeking equal representation for all states regardless of population and large states seeking proportional representation across the board was known as the Connecticut Compromise, or, more frequently, the “Great Compromise.” And indeed it was and still is great because it satisfies the immediate interests of both large and small states, while effectively guarding against mob rule.

Between 1789 and 1913, senators were appointed by state legislatures, as the authors of the Great Compromise had envisioned. Article I, Section 3 of the Constitution states, “The Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.”

In Federalist No. 62, the author, likely James Madison, explained that the appointment of senators by state legislatures gave “to the State governments such an agency in the formation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems.”

In 1913, singularly the worst year for American liberty, the 17th Amendment was ratified, providing for the direct election of senators by the people. The rationale involved concerns over voting deadlocks and perceived corruption in the states’ process of selecting senators. But recent research by Todd Zywicki has shown that these concerns were unjustified.

Without question, the 17th Amendment has led to more growth in the federal government since it eliminates the state voices that would traditionally advocate for a balance of power between state and federal government. Unsurprisingly and unfortunately, the direct election of senators has almost completely undermined federalism.

Today’s charges that the Senate is “undemocratic” and that representation should be based on population arise from a fundamental misunderstanding of what our government is supposed to be. The Framers were obviously skeptical of a monarchy, which could be tyrannical, and were skeptical of direct democracy, which they rightly viewed as mob rule.

In Federalist No. 10, Madison wrote about the problem of factions. “By a faction,” he wrote, “I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.”

Madison contrasted democracy with republicanism, explaining that a republican form of government, by balancing state power against federal power, could control the problem of faction in both. “The influence of factious leaders may kindle a flame within their particular States, but will be unable to spread a general conflagration through the other States,” Madison explained.

Of course, proportional representation in the Senate faces serious obstacles. It would take a constitutional amendment, which would have to be passed by two-thirds of the House and Senate, separately, and then be ratified by three-fifths of the states. Needless to say, its prospects aren’t good.

Still, the push to make the Senate a more glorified version of the House flies in the face of everything that the Founders grappled with in the Constitutional Convention on the proper way to represent individual and state interests in the federal government. The charges that the Senate is “undemocratic” are not wholly untrue, but both the separation of senators from their states’ population and the intended selection of senators by state legislatures are intentional and necessary to our federalist, republican system.

If anything, if it wishes to correct misrepresentation in the federal government, Congress should work to repeal the 17th Amendment, not threaten the Great Compromise so carefully crafted by our Founding Fathers.

Jason Pye is the vice president of legislative affairs for FreedomWorks. Sarah Anderson is a federal affairs manager for FreedomWorks.