Would Repealing the Seventeenth Amendment Curb Federal Power?

Many conservatives and libertarians believe that the 1913 adoption of the Seventeenth Amendment – which requires that senators be elected by popular vote, rather than by state legislatures – was a great mistake that led to a vast expansion of federal power. As Gene Healey puts it in a recent op ed, they assert that the amendment “has done untold damage to federalism and limited government.” The assumption underlying this claim is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power.

Unfortunately, these Seventeenth Amendment critics are wrong. The Seventeenth Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly elected senators are.

As co-blogger Todd Zywicki (a critic of the Amendment) pointed out in a 1997 article, by 1908 twenty-eight of the then forty-six states already had popular election of senators mandated by state law. Nine other states required the legislature to take account of popular votes, though they stopped short of taking away all legislative discretion. Given the strong political trend towards popular election of senators at the state level, it is likely that all but a handful of states would have enacted popular election withing a few years even without the federal constitutional amendment. If the amendment were repealed today, popular election would almost certainly remain in the vast majority of states . As Todd himself puts it, “Democracy is popular.”

Let’s, say, however, that we could somehow forbid popular election of senators – perhaps by enacting a constitutional amendment banning the various practices by which state legislatures committed themselves to choosing the winners of popular votes before 1913. It’s far from clear that federal power would contract. The claim that senators chosen by state legislatures would act to curb the feds relies on the assumption that state governments oppose federal power. In reality, however, they often have a strong interest in supporting it, a point John McGinnis and I drive home in this article. For example, state governments love federal grants that go to them and constantly lobby for additional federal funds. They also like federal regulations and spending programs that reduce competition between state governments and benefit interest groups that have influence at the state level.

If senators were chosen by state governments rather than by voters, the composition of federal spending and regulation might indeed change. More federal money would flow to state governments and those interest groups that have influence over them. There would also be more regulations benefiting state officials and associated private interests. On the other hand, the feds might become less solicitous of interest groups that don’t have much leverage at the state level.

Repeal of the Seventeenth Amendment could potentially lead to reduced federal spending if the Supreme Court began to enforce constitutional limits on federal grants to state governments. If Congress couldn’t hand out money to the states or could only do so for a very narrow range of purposes, then state governments would have more reason to oppose federal spending. Increased federal spending and taxes would then make it more difficult for the states to raise tax revenue for themselves. But so long as Congress has the power to give the states handouts for virtually any purpose, senators chosen by state legislators are unlikely to oppose federal power any more than current senators do.

I am not saying that the Seventeenth Amendment is necessarily a good thing. But opponents of overgrown federal power have little if anything to gain from repealing it. They would do well to invest their limited political resources in more productive efforts.

Note: For readers with access to Westlaw or Lexis, the article by Todd that I referred to in the post is “Beyond the Shell and Husk of History: The History of the 17th Amendment and Its Implications for Current Reform Proposals,” 45 Cleveland State Law Review 165 (1997).