One of the most bizarre developments since President Obama took office is the growing desire on the right to repeal the Seventeenth Amendment, the provision of the Constitution which requires senators to be chosen by election. Senator-elect Mike Lee (R-UT), Gov. Rick Perry (R-TX) and Supreme Court Justice Antonin Scalia have all jumped on this bandwagon.
Over at the National Review, right-wing law professor Todd Zywicki makes the unsurprisingly unpersuasive case for this radical proposal. Among other things, Zywicki claims that repealing the Seventeenth Amendment would be a good thing because it would make senators more like British Lords (yes this is true), but the crux of his argument is that we should leave senator selection in the hands of state legislatures to fill the Senate with individuals who “recognize that their reelection depend[s] on pleasing state legislators who prefer that power be kept close to home.”
Conservatives have long advocated devolving power from national leaders to state governments as a backdoor way to undermine America’s social safety net. Landmark programs such as Social Security and Medicare are economically impossible unless they are administered by the federal government or coupled with draconian restrictions, such as a mandate that everyone must retire in the same state that they worked and paid taxes in. Ultimately, shifting power from national to state leaders can be an effective way to dismantle these landmark programs.
But this does little to answer why the right has suddenly become obsessed with Senate elections, as it’s not even clear that repealing the Seventeenth Amendment would succeed in significantly altering the balance of power between state and national leaders. As David Gans explains, the Seventeenth Amendment did not come about through some kind of federal assault on state power (nor could such an assault have succeeded because it is impossible to amend the Constitution without the consent of a supermajority of state legislatures). Rather, the last time state lawmakers were empowered to choose senators, they practically begged the Congress to take that power away from them:
By 1912 –- when the Senate finally capitulated to public pressure and approved the Seventeenth Amendment –- thirty-three states had provided for direct primaries; another twelve states had implemented the “Oregon system” in which candidates for state legislative office pledged whether or not they would adhere to the results of the popular vote for Senator. Between 1874 and 1912, Congress received 175 petitions from state legislatures calling for direct election of Senators. Most important, when year after year, the Senate refused to approve the proposed Seventeenth Amendment, states around the country petitioned Congress for a constitutional convention. By 1910, 27 states had called for a convention, and only the threat of an actual convention finally spurred the Senate into action.
So there’s little reason to believe that actual state lawmakers want to drink the states-rights cocktail that Zywicki is brewing. As Gans explains, however, there is one very simple reason why conservatives may prefer the pre-Seventeenth Amendment America — repealing the Seventeen Amendment would be like Citizens United on steroids:
[T}he 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.
So while it’s anyone’s guess why so many far-right lawmakers and constitutional scholars have suddenly taken aim at the United States Constitution, the simplest explanation is probably the best one. Eliminating Senate elections would increase corporate America’s power to choose lawmakers and potentially undercut the social safety net in the process. In other words, it will help to reshape America in the right wing’s image.