National Review Is Wrong: Repeal the 17th Amendment

A response to the National Review article, “Ben Sasse is Wrong: Keep the 17th Amendment”

Senator Ben Sasse (R-NE) wrote an op-ed in the Wall Street Journal some time ago calling for several reforms, the largest being repeal of the 17th Amendment. Ratified in 1913, the 17th Amendment established the popular election of United States senators.

The Final Nail in the Coffin

From 1789 until 1913, U.S. Senators had been selected by their state legislatures. The framers intended this for two reasons. First, it balanced power between the federal government and the states. with the latter having their sovereign interests represented in the federal body. This was the real link between the states and federal government, as James Madison pointed out in Federalist 62. The second being that this distanced the senators from the whims of the people. The House of Representatives was the only democratic chamber of Congress, answering directly to their districts.

After the 17th Amendment, the Senate became a glorified House of Representatives. This, along with other awful changes in 1913 – Woodrow Wilson as President, the 16th Amendment (federal income tax), and the Federal Reserve – made 1913 a transformative year in American history. Judge Andrew J. Napolitano said, “Is any part of the Constitution unconstitutional? Yes! The 17th Amendment,” referring to the fact that direct election of senators is contrary to the guarantee at Philadelphia that the states would be a check on federal government power. This set the stage for the total power grab by the central authority in Washington, D.C. in place today. The 17th Amendment was the final nail in the coffin for the United States as a true, federal republic.

Nationalist Review

The progressives responded to Sen. Sasse’s op-ed with their anticipated reply, “This is an assault on our democracy.” The neoconservatives, no more thrilled about this than their counterparts on the left, saw this as an affront to their nationalist, top-down approach. Cue National Review coming to the 17th Amendment’s defense.

Dan McLaughlin responded in a National Review piece titled, “Ben Sasse Is Wrong: Keep the 17th Amendment.” While there are issues with Sen. Sasse, even a broken clock is right twice a day. McLaughlin’s argument – if you want to call it that, sometimes he fails to support his own premise at all – is either completely ignorant of history, or willfully misleading. Either way, he’s wrong about the 17th Amendment.

McLaughlin starts out by conceding that direct election of senators has resulted in federal government expansion at the expense of the states, but goes on to say that restoring the indirect election of senators won’t solve these problems. Why? McLaughlin’s claim is that the media drives politics to a national level and many local and state elections are a direct referenda on the President due to public obsession with the White House.

Did he consider that media attention to national politics is an effect rather than a cause? Could it be that because the federal government has grabbed so much power, turning the states into subsidiaries, the media is driven to federal offices since they’re the most powerful? The point about local and state elections just bolsters the argument for indirect election of senators. If voters are making choices down-ballot as a reflection of their presidential pick, wouldn’t an independent legislature acting on its own interests be the best way to combat this? Not the last time McLaughlin undermines his own argument in the article.

Debunking McLaughlin’s Three Points

McLaughlin goes on to use three points to make the case that restoring indirect election of senators is bad for conservatism. Maybe it is bad for his brand of “conservatism” (neoconservatism).

His first falls under the heading of “accountability.” McLaughlin argues that only the directly elected branches of government support lower taxes, national security, and conservative social issues. Really? When has this been the case? Both chambers of Congress have been directly elected for over 100 years. Taxes have gotten out of control, military presence is all over the world in preemptive war (which he probably likes), and Republicans catering to social conservatives never do anything about them  – exactly because they’re directly elected. If Republicans actually changed these social issues they claimed to care about, what would they campaign on next time around?

Later in the paragraph, he goes on to say that direct elections hold senators more accountable in judicial nominations. He doesn’t provide evidence for why this is the case, other than that senators are held accountable at the ballot box. Senators chosen by state legislators would be more inclined to support judicial nominations that support state interests. Once again, McLaughlin undermines his own argument, because indirectly elected senators have a more vested interest in backing nominees that will uphold their oath to uphold federalism and state sovereignty under the Constitution.

McLaughlin’s second heading, “spending,” gets off to a good start, discussing the federal government’s “shell game” with kickbacks to states and localities. He is critical of pork-barrel spending, entitlements, and block grants. Just when I think I’m going to agree with him on something, he drops this:

“… If you think we could solve this accountability shell game by creating a class of Senators whose only constituency is state legislators. … State legislators would love nothing more than to solve all their budgetary problems by taking handouts raised by the federal treasury … an indirectly elected Senate would be AFSCME’s dream.”

Wait… “handouts raised by the federal treasury”? Does he not know where they get this money? Besides the money the Federal Reserve prints from thin air, he has to realize the federal government gets its money from the states (and the people thereof). This is the entire problem with neoconservative nationalism. In their mind, money is the federal government’s. States and localities will get whatever cookie crumbs the almighty is generous enough to leave them, the opposite of the terms accepted by the states at ratification.

The final point is “gerrymandering,” arguing that direct election of senators gives a democratic check on gerrymandering that can occur in congressional and state legislative elections. McLaughlin’s case is that a gerrymandered legislature selecting a senator would be unfair. While I see the point he’s trying to make, it’s a bit too attenuated. The fact that this abstract argument has made it into one of McLaughlin’s main three points shows how weak the ground his argument in favor of the 17th Amendment is.

McLaughlin concludes by saying anti-establishment elections wouldn’t be possible under an indirect election system. He points to President Trump’s election. Does McLaughlin understand how elections work? The presidential election outcome is totally irrelevant to whether senators are directly elected. If we want to get into the weeds, Hillary Clinton would be President right now if we went by a purely democratic, direct (popular) vote, but Trump won because of an indirect (electoral) system.

The final paragraph of McLaughlin’s article discusses Sen. Sasse’s frustrations, “that he (Sasse) has to spend a lot of time catering both to the elite donors whose money is necessary to run campaigns and to voters who may be swept away in misguided populist enthusiasms.” While McLaughlin seemed to have made this a throwaway paragraph to wrap things up, (the cheesy final line “… nobody said governance and leadership were easy.” that seemed like it was from Schoolhouse Rock! had me thinking that) he once again undermines his own argument. What’s a scenario that takes the large fundraising necessary for a gubernatorial election out of the picture? Indirect elections. What about avoiding “misguided populist enthusiasms” that concern him? Same answer. In this paragraph alone, McLaughlin adds two more arguments in support of repealing the 17th Amendment.

Conclusion

The 17th Amendment is an abomination to our constitutional order. It was the knockout blow to the federal republic that had been taking hits from the Hamiltonian vision all the way to Lincoln, with great assistance from the federal judiciary.

While I am not sure if McLaughlin is completely oblivious as to history, or being intentionally deceitful, I’m not going to speculate. I do know that neocons have no interest in “state’s rights” and have continuously pushed the “one nation” narrative into the mainstream. A decentralized approach, while best for the interests of individual liberty, is a threat to their power, influence, big money donations, military-industrial complex, and cronyism.

History shows us that nationalism is guaranteed to erode liberty. The past 100 years provide ample evidence of that, the federal government has exercised nearly unlimited power, its only restraint being itself, a laughable notion. Federalism isn’t perfect, states like California and New York may even fall into despotism, but many of us will be so much better off. Besides, you can “vote with your feet” under this approach. If we want to preserve what liberty we have, we need to reject the nationalism of both the progressive left and the neoconservative right. Repealing the 17th Amendment will be one step in the right direction of returning to a federal system and resisting tyranny.