An important assault on State’s rights was the Seventeenth Amendment. The product of the time when Populism and Progressivism were sweeping large sections of America, the Seventeenth Amendment jammed a wedge of pure democracy into the Constitution where it was never designed to belong. This upset the Constitutional checks-and-balances system, weakened State rights and power, and magnified the power of special interests in Washington.
In the original bicameral design of the Constitution, the Legislature was divided between a House and a Senate. Members of the House represent the people of the United States; these representatives are therefore elected in each state by popular vote. The Senate, today, is the same, but not originally so. It was originally designed not to represent the people, but to represent the States, and thus protect issues regarding State’s rights and powers. Thus, Senators were elected by the legislatures in each State. With this arrangement, each State had popular representation according to population in one house, and equal representation for the State itself in the other.
The change came, as I said, during the era of the rise of populism and progressivism—both of which movements placed heavy emphasis on democracy at the expense of republicanism (the idea, not the party). The change did not come about due to sober reflection upon American political science, tradition, the Constitution, or other state papers; there was little philosophical analysis; the change came about due to pure party politics building up until it could seize the right moment in Congress. It was enabled, however, sadly, by corruption which was easily exposed and exploited toward that political goal.
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It is not without irony that the centers of populism—the Midwest and Northwest mainly—were also the centers fighting most for Senate election reforms. These same States during this era saw direct-democracy reforms passed into their Constitutions in the form of initiative and referendum powers, backed mainly by farm and labor unions. Along with these efforts, most of these States’ were also allowing election of their Senators by some form of referendum or popular input. They were, in effect, already practicing direct popular election of Senators.
But it was not enough for these ideologues—as it rarely is for any leftists or Statists—to rest content with their own States (the way State issues ought to be treated). They hungered to force direct election of Senators upon every other State in the union as well. And aided by the very procedures outlined in the original tool of centralization—the Constitution—they eventually achieved their goal. While the popularly elected House continually proposed an Amendment for the measure, the Senate—understandably—rejected it just as often. This occurred until 1911. By this time, the Senate was dominated by Senators from States where direct election was being practiced. Thus, Senatorial resistance to the issue was broken down, and the Amendment bill finally passed the Senate.
After the bill subsequently passed the House, a massive media campaign was begun to expose State legislatures as tools of cooperate special interests. Aided by special exposés and accusations of bribery, etc., progressives were able to portray the Constitutional system as having become corrupt and in need of immediate change. Implicated, the State legislatures were powerless to withstand. By 1913, 36 of the 48 States ratified. One—Utah—explicitly rejected it, and nine simply refused to take the lost cause once it was ratified by the requisite three-fourths. The nine holdouts were the States that historically most respected the need for State’s rights: Mississippi, Alabama, Georgia, Florida, Virginia, Kentucky, Maryland, South Carolina, and of course, Rhode Island.
No doubt, the State legislatures and thus the Senators had indeed become corrupted by massive corporate influences, lobbies, and special interests. But consider two things: first, the farm and labor unions that pushed for popular democracy were no different! They themselves were essentially incorporated collectives formed for the sole purpose of advocating the special interests of farmers and laborers. So the special interest and lobbying problem wasn’t truly solved by this means, it was merely shifted from domination by one special interest to another.
Second, not only was the power shifted from one special interest to another, but the degree, focus, and scope of power of that special interest shifted as well. Now, instead of dealing with State-wide lobbies, and interests and corporations within their respective States, Senators are now subject to the corrupting power and influence of national lobbies and special interests. Now, instead of dealing merely with the local rich and powerful, Senators can be compromised by influences from outside their own States. This means, the people of a particular State may be subjected to the power and influence of a powerful corporation or organization—or especially a national union—from outside their State pressuring Senators in general. So from this perspective, the special interest problem is not only unsolved, it is actually exacerbated and even more entrenched than before.
Thus, the very reasons for which the Seventeenth Amendment was stated to have been necessary have become one of the leading reasons for it to be removed.
This was noticed by Senator Zell Millier, a conservative Democrat who retired from the Senate in 2004. Upon his retirement—perhaps the only occasion for which he could speak so openly—he criticized the Senate for having become “one big, bad, ongoing joke held hostage by special interests.”1 His subsequent statement were illuminating and interesting:
One man inquiring into the prospect of a Senate race observed the body with disgust, and concluded the Senate to be composed of, Miller says:
A bunch of pompous, old—and I won’t use his word here, I would say “folks”—listening to people read statements they didn’t even write and probably don’t believe.
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Meanwhile, the laws of this country are subject to special interests like environmentalists and judicial activists. Indeed, “Most of the laws of the land, at least the most important and lasting ones, are made not by elected representatives of the people but by unelected, unaccountable legislators in black robes who churn out volumes of case law and hold their jobs for life.” To this we could as easily add, unelected lobbyists and bureaucrats writing volumes of regulations and administrative law.
Miller criticized the turn toward democracy at the expense of a republic:
No matter who you send to Washington, for the most part smart and decent people, it is not going to change much because the individuals are not so much at fault as the rotten and decaying foundation of what is no longer a Republic. It is the system that stinks, and it is only going to get worse because that perfect balance our brilliant Founding Fathers put in place in 1787 no longer exists. . . .
You see, the reformers of the early 1900s killed it dead and cremated the body when they allowed for the direct election of U.S. Senators. Up until then, Senators were chosen by State legislatures, as James Madison and Alexander Hamilton had so carefully crafted. Direct elections of Senators, as great and as good as that sounds, allowed Washington’s special interests to call the shots, whether it is filling judicial vacancies, passing laws, or issuing regulations. The State governments aided in their own collective suicide by going along with that popular fad at the time.
Note hoe the problem is not just special interests in general—for you’ll never eliminate those—but “Washington’s special interests.” The stage has indeed shifted to bigger, more powerful, national special interests, as I said.
Now more democratized in nature, the Congress no longer works to protect State’s rights. As a result, we have unfunded federal mandates placed upon the States in which the Federal government essentially tells States what to do and makes them pay for it—to the tune of $33 Billion at the time Miller was speaking (for 2005). Miller asks, “[C]an you imagine those dreadful unfunded mandates being put on the States . . . if Senators were still chosen by and responsible to the State legislatures?”
Of course not. But the same special interests which keep State interests so weak also keep the Senators themselves personally interested in maintaining direct election for themselves. Where do you think their campaign funding comes from? Miller answers:
Make no mistake about it. It is the special interest groups and their fundraising power that elect Senators and then hold them in bondage forever. In the past five election cycles, Senators have raised over $1.5 billion for their election contests, not counting all the soft money spent on their behalf in other ways. Few would believe it, but the daily business of the Senate in fact is scheduled around fundraising. . . .
As a result, we have a tyranny of special interests and unions empowered and entrenched at the national level instead of merely at the State level. The States themselves, rather than being represented properly, essentially act as one more lobby for Senator’s attention, except the States can’t buy them off:
The election of Senators by the State legislatures was the lynchpin that guaranteed the interests of the States would be protected. Today State governments have to stand in line because they are just another one of the many special interests that try to get Senators to listen to them, and they are at an extreme disadvantage because they have no PAC.
Miller concludes of the Seventeenth Amendment, that it “destroyed federalism forever,” and “was a victory for special-interest tyranny and a blow to the power of State governments that would cripple them forever.”
Concluding his speech, Mr. Miller introduced a bill to repeal the Seventeenth Amendment, which was like asking each one of his fellow Senators to bite the hands that fed them. The proposed bill never made it out of committee.
Then, in a brave display of fighting national special interests, Miller became a board member of one of the largest lobbies in Washington, the NRA.
Are things really this hopeless?
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I disagree with Miller’s conclusion. True federalism and the power of State governments have not been destroyed “forever.” With the groundswell of interest in self-government and limited government arising with the TEA-Parties and similar groups, a lot has changed even in the few years since Miller’s 2004 speech. A much bigger and more eager audience than ever before is embracing the message: decentralization and restrictions on higher levels of government. Recovering State’s rights is an important piece of that puzzle. Restoring proper representation of State interests in Washington—and thus the repeal of the Seventeenth Amendment—is an important step in recovering that piece. Simple education about that Amendment and its history is awakening many people to the importance of repealing it.
No, it will not eliminate special interests (this is perhaps impossible). But it will decentralize them. This is surely something worth pursuing. And while it certainly is not sufficient toward the overall effort to decentralize power and government, it certainly is necessary. It is certainly worth contacting and educating your State and national representatives about.
- Congressional Record, April 28, 2004 (S4503).(↩)