By Tom Toth
Elections to decide who will control Congressional majorities in the House and Senate are less than seven weeks away, and this calm before the political storm is as good a time as any to analyze the state our government’s most powerful branch—the people’s Congress.
Specifically, why exactly do we have two chambers that are elected the same way, with one being less accountable to the people and yet more powerful than the other?
For perspective, let’s back up for a moment. A little over 101 years ago the United States added a 17th Amendment to the Constitution that changed how the 100 members of the Senate would be selected. The 17th Amendment changed the appointment process to the direct elections we have today, replacing the Constitution’s original design of appointment directly by state legislatures.
One can rightly assume that the republic’s founders Constitutionally designed the legislative branch intentionally. But why the pre-1913 design? One reason was foundational to the nation’s establishment, yet less understood in today’s political climate: states’ rights. Simply put, Congress was to consist of representation from each state legislature, equally, as to legitimize the affairs of every state government in the workings of federal lawmaking.
Each state was to given a voice, small states equal with the large.
The people were also, similarly, to have a voice in the second half of the legislature, proportioned directly from districts drawn by population.
The unintended consequences of the 17th amendment, however, have rendered each of those principles antiquated, at best — irrelevant, at worst.
State governing has long become an irrelevant enterprise in the national political sphere. Having surrendered its influence over the Senate, states are, for all intents and purposes, now little more than minor league clubs for political aspirants and test labs for public policy. Hardly a governing body worth the power of the 10th Amendment, even in its current limited existence.
As for the people, why should a voter living in Wyoming (with a population of under 600,000) have so much more direct voting power over the national legislative process than one from, say, California (with a population of over 37,000,000)? It’s silly.
The 17th Amendment destroyed the practical purpose of interpersonal voting equality across the nation, highlighted especially by the lack of national concern for state issues in exchange for the goings-on of an ever-growing federal government.
A simple conclusion there is no good reason for there to be second Congressional chamber with an inordinate amount of power, no term restrictions, and a relative unaccountability to electorates of widely disparate vicarious influence.
The 17th Amendment isn’t without its intelligent devotees, of course. No finer defender of the amendment exists than David Schleicher, a professor at George Mason University School of Law, who has written extensively for the historical and continuing defense of the amendment. Mr. Schleicher’s — highly abridged — argument for the amendment, and likely a major contributing factor in the amendment’s creation, is that given the nation’s present state of political bipolarity, state elections, rather than driving individual concern for state and local concerns, would virtually all boil down to secondary elections for senators anyway, carrying over uniquely national concerns into state politics.
The original design of the federal government’s most important branch was irrevocably compromised for little more than political convenience — a simple response to the unfortunate realities of a two-party political system. And the 17th amendment has, in retrospect, failed even to accomplish its stated goal of separating federal and state politics, as argued by the likes of Schleicher.
The Senate was also designed, in part, to be the cooling plate of the legislature, true, and it continues to serve that purpose to a certain degree. But it was always more than that. The Senate was the single legitimate voice of the states on the national political stage.
No more.
State governments today exist in a practical state of irrelevance and Congress continues to operate clumsily, as it has for a century.
Therefore, before you complain again about disregarded states’ rights and wonder why your Senator should be able to act for himself or herself with near impunity for 4 years at a time before running a state-wide election in your state’s two largest metropolitan areas, consider why the founders designed the legislative branch differently.
Perhaps they would argue that a 28th amendment is in order.
Tom Toth is the digital content director for Americans for Limited Government.
