On the “True Story of the History of the Seventeenth Amendment and Federalism”

David Gans of Balkinization has posted a critique of my National Review article on repealing the 17th Amendment.  In the title of his post he asserts, “The Tea Party, Once Again, Has History All Wrong”– a characterization that he also attributes to me.

Now, my initial inclination in response to Gans is simply to ask him to read my law review articles on the topic, where not coincidentally, I respond to all of the historical claims that he makes in his post.  I say “not coincidentally” because the arguments he makes are not original, which is why I address them at length in my articles.

But since I assume he hasn’t read my articles, I will briefly summarize the points here that anticipate his arguments.  Gans writes:

If election of Senators by state legislatures was the bulwark of federalism Zywicki calls it, why did so many states push to eliminate it? The answer – completely absent from Zywicki’s account – is that election of Senators by state legislatures was a disaster. Far from being “good politics” or “good constitutional design,” the system led to rampant and blatant corruption, letting corporations and other moneyed interests effectively buy U.S. Senators, and tied state legislatures up in numerous, lengthy deadlocks over whom to send to Washington, leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people. These ills made the case for bringing the election of Senators in line with the Constitution’s fundamental values of protecting democracy and securing the right to vote to all Americans a very strong one.

His rendition of history follows what I refer to in my articles at the as the “internal” and “external” explanations for the 17th Amendment.  “Internal” explanations relate to narrow questions related to the competence of state legislatures to elect their Senators.  “External” explanations refer to the idea that the election of Senators was just a reflection of the democratic tides sweeping the country at that time.

Consider first the “internal” explanations–that state election of Senators was, as Gans puts it, ” a disaster.”  Gans’s rendition of this history is the conventional, but superficial, understanding of the history.  But as I show in my articles, this superficial understanding of the history is incomplete at best and simply inaccurate in many areas.

First, consider the argument that states were “tied … up in numerous, lengthy deadlocks … leaving those bodies with far less time to devote to the job of enacting the laws their states needed for the welfare of the people.”  Every assertion in this one statement is to a smaller or larger extent false.  It is true that in some states deadlocks did occur and that this resulted in an absence of a Senator for some time.  But, as I elaborate in my article, most states had no deadlocks and deadlocks were much less common than conventional wisdom has come to believe.  Moreover, very few states deadlocked more than once–unsurprisingly, they developed means to avoid deadlocks.  Most deadlocks occurred in newly-admitted western states that had new political institutions.  As those state political structures became more established deadlocks were largely eliminated.  Nor does a deadlock in state A provide any explanation why that state should support a constitutional amendment instructing state B (which had no deadlocks) how to elect its Senators.  Moreover, many of the states that suffered deadlocks (and some that did so repeatedly) did not vote to ratify the amendment, while many states that suffered no deadlocks at all did vote to ratify the amendment.  As I say in one of my articles, “In light of this record, it is difficult to sustain the argument that the Seventeenth Amendment was a response to the problem of deadlocks.”

But there is a bigger problem with Gans’s “deadlocks” explanation.  In particular because Gans has only a passing acquaintance with the actual history of state election of Senators I suspect he is not even aware of the key part of the deadlocks story.  For  about a century state legislatures elected Senators with no deadlocks nor other problems.  Why then did they all of a sudden become incompetent at doing so?

The real problem was that in 1866 the national government passed a law that required that Senators be elected by a majority vote of state legislatures.  This majority vote requirement is what created the new logjam that previously did not exist.  And this presented a special problems in western states that had poorly-organized parties and an unstable two-party system frequently disrupted by official or de facto third parties (such as various populist parties and progressive factions within parties).  The obvious solution would have been to repeal the federal law, not to pass a constitutional amendment providing for direct election.

And, of course, once the Seventeenth Amendment was enacted, this majority vote requirement was eliminated, thus allowing election of Senators by plurality.  Election of Senators by plurality is not uncommon, of course–Alaska’s Senator (whoever it is) will have received only a plurality and Rubio easily could have been elected only by a plurality in the three-candidate race there.  It is hard to see why Gans believes that an ill-advised national law should be proffered as evidence of state incompetence to elect Senators–one is tempted to suppose that this is because this is the first that Mr. Gans has ever heard of that law’s existence (otherwise his failure to mention it seems inexplicable, considering the prominent role it plays in the historical debates).  Would we consider it to be evidence of the “incompetence” of the people of Alaska if they failed to provide a clear majority to Lisa Murkowski?  I don’t think so.  Incidentally, the adoption of binding primaries in some states were actually the cause of deadlocks in those states.

What about corruption?  As I noted in my National Review article, there were allegations of corruption in less than one-half of one percent of Senate elections even during the period where corruption was thought to be most widespread.

Moreover, the case for believing that direct election would eliminate corruption is quite dubious.  First, considering that Congressmen from time to time end up with stacks of hundred dollar bills in their office refrigerators I doubt that most people would agree with the proposition that democratic elections inoculate politics from bribery and corruption.  The Wikipedia entry on political scandals is one of the longest entries that I’ve seen.  Second, the relationship between electoral politics and special-interest favors adds further doubt as to whether direct election can be considered a panacea for corruption.  I’ve seen no evidence that direct election of Senators reduced corruption to less that one-half of one-percent of elected Senators.

But more significantly, there is no evidence that even those at the time thought that popular election would be panacea for corruption.  In fact, investigations of corruption were much more common in House elections than in Senate elections–historian C.H. Hoebeke found 382 electoral challenges in the House from 1789-1907 and during that same period there were 15 in the Senate.  Obviously there were also more House elections during that period, but based on that record and the reality of electoral politics in late-19th century America no one was so naive to believe that in the political world of late-19th and early-20th century America that popular election was so pure that it would be a solution to corruption.  Indeed, within a few years of the passage of the 17th Amendment one commentator observed (unsurprisingly) that there was electoral fraud in “nearly every state” and that if that was its purpose, the amendment had “failed in its purpose.”

But there is still another problem with Gans’s belief that popular election was a response to corruption and a triumph of the people.  Historians have observed that the great political winners (and major supporters) from the enactment of the Seventeenth Amendment were corrupt urban machines, which could bribe, intimidate, and deliver large numbers of voters to the polls to do their bidding.  It is not obvious to me why increasing the power of urban machines was a triumph of good-government forces against the evils of corruption, so perhaps Gans can explain this.

Finally, Gans states that deadlocks forced state legislative business to grind to a halt while elections were pending leaving them “far less time to devote to the job of enacting the laws their states needed for the welfare of the people.”   This is simply incorrect.  Of course, as noted, most states had no deadlocks and many of those that did had only one or a few, so only a few states had disruptions.  Even fewer had deadlocks that lasted for an extended period of time.  But historian C.H. Hoebeke notes that even where deadlocks did occur, they did not grind the legislature to a halt.  Instead, the legislature would take a vote at the beginning of the day and then continue on with its business.  The disruption to ordinary business was minimal.  If Gans has some historical evidence that questions Hoebeke’s observation, I’d be interested in seeing it.

Which leaves what I refer to as “external” explanations–the idea that the 17th Amendment was just a footnote in a wave of democracy sweeping over the country at the time.  As Gans puts it, “These ills made the case for bringing the election of Senators in line with the Constitution’s fundamental values of protecting democracy and securing the right to vote to all Americans a very strong one.”  But there is reason to doubt Gans’s story–or that Gans himself even believes it.

First, Gans suggests that the fundamental value of the Constitution is democratic–to manifest “the voice of the people themselves.”  I believe that the fundamental values of the Constitution were republican–to protect individual liberty and to limit the ability of special-interest factions to manipulate the government for their purposes.

In my articles I engage in a long discussion of why I believe that the historical record best indicates that the intent and effect of the Seventeenth Amendment was to make special-interest rent-seeking easier at the national level.  I won’t repeat that whole argument here.  My reading of the historical record is that powerful political interests such as corporations, labor unions, and farmers were frustrated at the ability and willingness of the national government to transfer rents to them.  And that the whole purpose of the Seventeenth Amendment–especially when combined with the Sixteenth Amendment legalizing the income tax–was to unleash the rent-seeking state.  Exactly as we saw in the post-Seventeenth Amendment period.  Notable historians, including Gabriel Kolko and Robert Higgs, have largely debunked the naive Progressivism that seems to underlay Gans’s analysis, noting the rent-seeking that underlay much of it.  I also believe that those two amendments reflect sectional differences such that they were adopted to advantage the residents of some states and disadvantage others.  Perhaps Gans disagrees with my analysis.  But he makes no indication of why he believes it to be incorrect–or, frankly, that he has even read it.

But there is still a larger point here.  There certainly was an increase in democracy over this period, including an increased adoption of initiative, referendum, and judicial election.  Yet none of these efforts, which were widely adopted on the state level, ever gained much traction on the federal level.

As for Gans–who claims to be a champion of democracy and “the voice of the people themselves”–does he believe in election of judges?  Or does he prefer the way in which federal judges are appointed–a process that is probably the most elitist and non-democratic process for selecting political officers that could possibly be conceived.  Is Gans an enthusiast for initiative and referendum as well?

If, however, Gans is a selective champion of democracy–as I suspect he is–then his passionate invocation of “democracy” as synonymous with “progress” is hard to take seriously.  If Gans is actually a supporter of judicial election, initiative, and referendum, then I apologize for questioning his democratic bona fides.

As for me, I don’t claim to be a democrat.  I am a constitutional republican.  And by that measure I am completely untroubled by the way in which the federal Constitution provided for the appointment of judges as well as the way it originally provided for selection of Senators as systems designed to fit within the constitutional scheme of protecting individual liberty and limiting rent-seeking by special interests and agency costs by politicians.

There are arguments that could be made against repealing the Seventeenth Amendment.  But a superficial understanding of its historical causes and consequences isn’t one of them.