Sasse Gets Seventeenth Amendment Reform

by Blake Weiner

In a September op-ed in The Wall Street Journal, Nebraska Senator Ben Sasse proposed a refashioning of several Senate norms that, he argues, would help to bring about “dramatic change aimed at promoting debate, not ending it.”  Most of the proposals were slight in effect; in one, Sasse advocates for the removal of cameras from committee hearings to prevent senators from “competing for sound bites.”  Rather than constructively using their time to question witnesses or argue the facts in front of them, senators – especially those in toss-up re-election campaigns – often end up using their committees as ways to get audio snippets of themselves taking stands for or against the hottest topics of their election cycle.   Other suggestions from the junior senator from Nebraska are foolhardier in nature; Sasse welcomes requiring senators to live in Capitol Hill dormitories to foster a greater sense of collegiality among the body.

Yet Sasse’s most sweeping proposal comes in his support of repealing the 17th Amendment of the Constitution.  Proposed in 1911 and ratified in 1913, the 17th Amendment alters the text of Article I, Section III of the Constitution to establish popular elections for U.S. senators to increase democratic accountability of the Senate.  For the first one hundred and twenty-five years of our Republic, senators were elected by the representatives of the individual states’ legislative chambers.  Sasse states that the amendment must be undone for the sake of preserving the rectitude of the institution.  To restore integrity, Sasse proposes returning the process of electing senators to its original constitutional home in the varying state legislatures. 

Sasse is right in affirming that returning the power to appoint senators to the state legislatures would help to bring about a plethora of policy solutions that the Senate could use to tackle the most pressing of issues. Every state comes to the table with unique solutions to the hot-button issues of the day; what works for Delaware might not work for Texas, but what works in Maine might benefit Wisconsin.  Finding common ground in policy solutions between the states at the federal level might also help, to a lesser extent, alleviate some of the hyperpartisan tensions that have recently plagued the Senate. 

But Senator Sasse fails to note the historical and legal context that could be used to support his argument.  Debates over citizen representation have been echoed since even before the Patriots threw the first box of tea into Boston Harbor in 1773.  In Federalist No. 62, James Madison lays before the American people his arguments behind establishing the United States Senate.  Madison agreed with some of his contemporaries on the need for a House of Representatives filled by popular representation; this body would constitutionally give a voice to “the People of the several States” and its legislators held directly accountable by voters in their corresponding districts.  However, Madison also concluded that “the government ought to be founded on a mixture of the principles of proportional and equal representation.”  To Madison and the other Founders, state representation was beset on both sides by the demands of the smaller states who demanded equal membership in the federal government, and the larger states who hoped proportional representation would best guarantee their interests in Congress.  A compromise between the two interests was made in the establishment of both the House and the Senate.

The Seventeenth Amendment seeks to undo the purpose behind this agreement that was precedent for several decades.  The implementation of direct senatorial elections cuts the state legislatures out of federal policy and lawmaking.  The language of the Constitution is clear in that the representatives of the House shall be determined by the people, while the members of the Senate shall be appointed by their state legislatures.  This amendment cuts the state legislatures out of their duly assigned role, further sanctioning gridlock behavior while the federal government and national parties amass more power.  

While the authors of the Seventeenth Amendment to the Constitution meant well in trying to increase the accountability of members of the Senate, the road to hell is paved with good intentions.  The text of the Seventeenth Amendment is the antithesis of the Founders’ original intent for the Senate to be a more direct connection for collaboration between the state and federal levels of our government.  While Senator Sasse is correct in identifying that Congress has abdicated much of its duty to the executive branch in recent decades, a consideration of the weakening of a state’s representation under the Constitution must also be made.  While the former can be attributed to several factors, both institutional and political, the latter can be clearly diagnosed as caused by the Seventeenth Amendment.  A reexamination of the Amendment and how it may affect partisan gridlock in the Senate today would be a stepping stone on the path to restoring the constitutionally enumerated method by which our senators are elected.