‘Case of the Week’ 3 (NCFCA): 17th Amendment

Important Disclaimer: We pretty much just throw these together over the weekend, and don’t put a lot of work into them. Case of the Week cases are not subject to the same editorial process and stringent quality standards as the COG 2013 sourcebook, and are frequently contributed by non-COG authors. You may find material and sources in these cases that would not appear in the sourcebook. That said, we hope these cases will be useful to you; enjoy!

Uploader’s Note: Actually, you might have to scratch the “don’t put a lot of work into them” – this one has a lot more backup than usual. (Many thanks to R.J. for putting together such a great resource!)

About the Author: R.J. Martin is the 2013 NCFCA Extemp National Champion and an accomplished Team Policy debater. His career has included a 6-0 record and top seed at the Alabama Open, top 5 finishes in all but two career Team Policy tournaments, and an overall win rate of 75%. (Yes, he’s done the math.)

1AC: Bacon for Everyone – Repeal the 17th Amendment

By R.J. Martin

“Great ideology creates great times.” – Kim Jong-Il

British Prime Minister Winston Churchill once said, “The best argument against democracy is a five-minute conversation with the average voter.” Realizing this truth, our Founding Fathers designed a vital check in our federal government to restrain the people. Originally, US Senators were elected by state legislatures instead of the populace. Unfortunately, this system came to an end in 1913 with the passage of the 17th Amendment. Today the affirmative supports repealing the 17th Amendment and returning elections of Senators to state legislatures instead of the people. While it might seem counter-intuitive, this reform will actually increase the people’s voice, and also restrain the growth of the federal government.

This is why the affirmative stands Resolved: That federal election law should be significantly reformed in the United States.

Election Law: The standards establishing who votes, when and how they vote, and/or for whom they may vote.

The affirmative today would like to propose a criterion of Federalism, which is a balance of power between states and federal government. The best way to protect your rights as an individual is to ensure the state and federal governments are balanced, so that neither gains excessive power. Whichever side which best upholds Federalism deserves your vote. The best way to re-balance the relationship of state and national government is to repeal the 17th Amendment. This Amendment, mandating Senatorial elections by the populace instead of state legislatures, has created 3 harms we see today:

Harm 1: States Cannot Prevent Federal Encroachment

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

Before the Seventeenth Amendment, the now-widespread Washington practice of commandeering the states for federal ends — through such actions as “unfunded mandates,” laws requiring states to implement voter-registration policies that enable fraud (such as the “Motor Voter” law signed by Bill Clinton), and the provisions of Obamacare that override state policy decisions — would have been unthinkable. Instead, senators today act all but identically to House members, treating federalism as a matter of political expediency rather than constitutional principle.”

The original purpose of the Senate was state representation on a national level. The Senate gave states a veto on any bill that would expand the federal government (at the expense of the states). This safeguarded Federalism by ensuring a balanced – not dictatorial – relationship between states and the national government.

Harm 2: More Pork

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

“Indeed, it is inconceivable that a Senator during the pre-Seventeenth Amendment era would vote for an ‘unfunded federal mandate,’ thereby requiring state legislatures to raise taxes and spend money on projects they did not devise and for which they receive no political benefit.”

Harm 3: Special Interests Fill Power Vacuum

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

“The decline in state power had indirect consequences as well. Power is not static, and the gaping hole this Amendment left in the balance of powers was soon filled—only it was filled less by voters and more by interest groups than was intended. The chain of causation that led to this outcome can be illustrated in four steps: (1) the Amendment made Senators accountable to the voters at large instead of a set group of legislators; (2) the average voter is less capable of monitoring a Senator’s conduct than is a legislator; (3) with less monitoring, Senators are more susceptible to legislative schemes that sacrifice their constituents’ concerns for their own interests and those of special-interest groups; and (4) special-interest groups enjoyed increased influence because they could now centralize at the federal level and influence the Senators directly instead of being ‘dispersed across several states’ and having to lobby ‘multiple state legislatures in order to get the Senate [to] consent to a piece of legislation.’”

Instead of bribing or corrupting a 40-member legislature, now special interests can target individual senators. The outsized influence of special interests distorts democracy and minimizes your voice as an individual. Because of the harms of popular election of US Senators, the affirmative proposes the following:

Plan

Mandate: The 17th Amendment of the US Constitution shall be repealed.

Timeline: The repeal process shall begin immediately upon an affirmative ballot.

Agency: The US Federal Government, Congress, and any other necessary bodies.

No Funding is necessary, as this plan is purely legislative.

In other words, the affirmative plan returns election law to what our Founding Fathers intended: Senators elected by state legislatures instead of the people at large. There are 3 main advantages of repealing the 17th Amendment.

Advantage 1: Federal Government Restrained

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

“Additionally, the notion of federalism has also suffered tremendously with the erosion of the state legislatures and their capacity to choose U.S. Senators. Under the original design, states had an invested interest in policies by the federal government. Additionally, the states could essentially check and curtail the power of the federal government by having their representatives in the Senate control such policies. Any encroachment by the federal government unnecessarily into the affairs of the states would be spoiled once the bill or action reached the Senate. This would also prevent other unconstitutional actions or overstepping by the federal government in most areas of life. However, with the increase in democratic movements and subsequent amendments, and the absence of truly-appointed Senators by the state representatives, the states lost most checks, other than the courts, to curtail such broadening of the federal government’s responsibility.”

The foundation of Federalism is an equal relationship between states and the national government – not a national government that dictates policy to states, which is what we currently have with the 17th Amendment.

Advantage 2: Senate Again Insulated from the 51%

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

“The Framers understood what today’s self-interested sloganeers of democracy do not: What matters is not whether a given method of selecting governmental officials is more or less democratic, but whether it will safeguard the constitutional functions bestowed upon each branch and conduce to their competent execution. Indeed, certain of the Senate’s duties — such as its role as a type of jury for impeachment proceedings — make sense only if it is somewhat insulated from the public’s passions of the moment, as was well demonstrated by the farcical Senate trial of Bill Clinton.”

Repeal makes possible unpopular reforms, such as cuts to entitlement programs. The People should be represented – and they already are, in the House of Representatives. The Senate was designed to be different.

Advantage 3: Restored Accountability

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

“Because of the small size of state legislatures, each legislator had an incentive to monitor the senator’s behavior. One legislator in a body of forty legislators can have some practical control over a senator’s behavior; one voter in a constituency of several million cannot.”

Ironically, having state legislatures elect senators actually strengthens your voice. Your local state legislator (perhaps your neighbor down the street) is one of only 40 or so people selecting the Senator. Under this system, your voice is not just one of millions. If you want greater accountability from US Senators and less federal government growth, we ask you to uphold Federalism by voting to repeal the 17th Amendment.

Backup: 17th Amendment

QUOTES FOR THE OPENING

Jon Stewart (comedian). http://www.goodreads.com/quotes/tag/democracy

You have to remember one thing about the will of the people: it wasn’t that long ago that we were swept away by the Macarena.

James Madison. (not a comedian). Federalist 51. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

As Madison observes in Federalist 51, “A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”

ORIGINAL PURPOSE OF SENATE

Design ensured equal federal representation

Judge Andrew Napolitano, (J.D. from Notre Dame Law School. He is the youngest life-tenured Superior Court judge in the history of New Jersey, and now appears on television as Fox News’ Senior Judicial Analyst. He also write a weekly column, and has been published in the New York Times, Wall Street Journal, and Los Angles Times). April 8, 2010. Published by reason.com. “Injustice System.” http://reason.com/archives/2010/04/08/injustice-system/print

If you read Madison’s notes from the constitutional convention, they spent more time arguing over the make-up of the federal government and they came up with the federal table. There would be three entities at the federal table. There would be the nation as a nation, there would be the people, and there would be the states. The nation as a nation is the president, the people is the House of Representatives, and the states is the Senate, because states sent senators. Not the people in the states, but the state government. When the progressives, in the Theodore Roosevelt/Woodrow Wilson era, abolished this it abolished bicameralism, the notion of two houses. It effectively just gave us another house like the House of Representatives where they didn’t have to run as frequently, and the states lost their place at the federal table. That was an assault, an invasion on the infrastructure of constitutional government. Even kings in Europe had to satisfy the princes and barons around them. And that’s how they lost their power, or that’s how their power was tempered. Congress believes it doesn’t have to satisfy anybody. Its only recognized restraint is whatever it can get away with.

Two Purposes of the Senate

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

Throughout the debates over the Senate, two themes recurred. First, the Senate should counter the democratic excesses of the people, newly represented in the House of Representatives. In Madison’s words, the Senate must be structured to reflect “more coolness”‘ of decision and to “render [the houses of the legislature] by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions, and their common dependence on the society will admit. ‘ Second, the Senate should serve as a check on the inexorable impulse of the new government to accretion of power. Federalism was to the states what separation of powers was for the three great departments: an assurance of non-encroachment.

Framers Intent Compromised

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

The Framers knew that a democratic regime, not countered by any other forces, could be just as tyrannical as any sort of dictatorship. While all power of the American government would come from the people, it was not meant to flow directly in every case. Unfortunately, the Constitution would eventually be usurped by the movements for greater democracy in government. This small change to the national government has totally revised and distorted the Framers’ original intent.

James Madison: Different Purposes for House and Senate

James Madison. Federalist No. 39. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

The house of representatives will derive its powers from the people of America, and the people will be represented in the same proportion, and on the same principle, as they are in the Legislature of a particular State. So far the Government is national not federal. The Senate on the other hand will derive its powers from the States, as political and co-equal societies; and these will be represented on the principle of equality in the Senate, as they now are in the existing Congress. So far the government is federal, not national.

Popular Vote Proposal opposed by Founders 10-1 in Committee

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

Empowering state legislatures to elect senators was considered both good politics and good constitutional design. At the Constitutional Convention in Philadelphia, the proposal was ratified with minimal discussion and recognized as the approach “most congenial” to public opinion. Direct election was proposed by Pennsylvania’s James Wilson but defeated ten to one in a straw poll.

Final motion (for legislature election) approved unanimously

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

The Senate was not intended to be the people’s representative body, but that of the states. Lest the federal government “swallow up the state legislatures,” George Mason insisted to his fellow convention delegates in Philadelphia, “let the state legislatures appoint the Senate.” The delegates backed him unanimously.

George Mason: Preventing states from being ‘swallowed up’ by feds

George Mason (Founding Father). Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

[W]e have agreed that the national Legislature shall have a negative on the State Legislatures-the Danger is that the national, will swallow up the State Legislatures-what will be a reasonable guard agt. this Danger, and operate in favor of the State authorities-The answer seems to me to be this, let the State Legislatures appoint the Senate-

FEDERALISM

Senate was a check on federal power

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

The Senate, in theory, would not only serve to protect liberty from the passions of the people, but would also ensure that the federal government would not overstep its delegated authority. While the delegates to the convention wanted to strengthen the national government, by giving it the necessary tools to govern effectively, it also sought to keep the national government from expanding beyond the powers that the states offered. The concept of federalism could only be defended as long as the states themselves had a role in the shared power arrangement.

Impact: Federalism protects the Individual

Justice Sandra Day O’Connor.. June 19, 1992. Majority opinion in New York v US. http://www.law.cornell.edu/supct/html/91-543.ZO.html

The Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: “Rather, federalism secures to citizens the liberties that derive from the diffusion of power.”

A Check on Abuses of Power

Justice Sandra Day O’Connor. June 20, 1991. Majority opinion in Gregory v. Ashcroft. http://supreme.justia.com/cases/federal/us/501/452/case.html

Perhaps the principal benefit of the federalist system is a check on abuses of government power. “The ‘constitutionally mandated balance of power’ between the States and the Federal Government was adopted by the Framers to ensure the protection of ‘our fundamental liberties.‘” Atascadero State Hospital v. Scanlon, 473 U. S. 234, 473 U. S. 242 (1985), quotingGarcia v. San Antonio Metropolitan Transit Authority, 469 U. S. 528, 469 U. S. 572(1985) (Powell, J., dissenting). Just as the separation and independence of the coordinate Branches of the Federal Government serves to prevent the accumulation of excessive power in any one Branch, a healthy balance of power between the States and the Federal Government will reduce the risk of tyranny and abuse from either front.

Legislature Election Resists Federal Expansion

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

One could sometimes be forgiven for thinking otherwise, but the states are not regional departments of the federal government. To ensure that they had a working mechanism by which to resist the expansion of federal power, the architects of our Constitution hard-wired the state legislatures into its structure; with the 17th Amendment, progressives pulled out that wiring like punch-drunk Jacobins.

De Toqeville Endorses

Alexis de Toquville (19th Century French political philosopher). 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

This transmission of popular authority through an assemblage of chosen men operates an important change in it by refining its discretion and improving its choice. Men who are chosen in this manner,” Tocqueville proclaims, “accurately represent the majority of the nation which governs them; but they represent only the elevated thoughts that are current in the community and the generous propensities that prompt its nobler actions rather than the petty passions that disturb or the vices that disgrace it.

Aristotle Endorses (sort of)

Aristotle (philosopher; sometimes considered the first political scientist). 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

Aristotle cautions against the notion that all power should be equally spread across the people. Regarding the rule of the many, ‘For if they shared in the greatest offices, it would not be safe, since, on account of their injustice and unwisdom, they would do wrong in some things and go wrong in others. If, on the other hand, they were given no share and had no participation in office, it would be cause for alarm, since the city that has many in it who lack honor and are poor must of necessity be full of enemies. What is left, then, is that they participate in deliberation and judgment…For their perception is adequate when they all come together, and when they are combined with the best, they actually help their cities…In separation, however, each of them lacks the completeness necessary for the passing judgment.’

Now, States are subject to Feds

Mike Leavitt, (Former Governor of Utah). Published in Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf

State leaders have status only as lobbyists and special interest groups. The leaders go hat in hand, hoping and wishing that Congress will listen. There is no balance of power. States must accept whatever the Congress gives them. If states have any influence at all, it results only from the personal willingness of congressional leaders to pay attention. States have no tools, no rules, ensuring them an equal voice in the cutting of the pie or the selection of the pieces.

States Have Been Transformed Into Subjects

Gene Healy, (J.D. from the University of Chicago Law School. He is a Vice President at the Cato Institute, and has been published in the Los Angeles Times, New York Times, Chicago Tribune, Legal Times, and the Washington Examiner.) June 8, 2010. Published by the Cato Institute (Commentary). “Repeal the 17th Amendment?” http://www.cato.org/publications/commentary/repeal-17th-amendment

Together with the 16th Amendment establishing an income tax, the 17th Amendment helped transform the states into little more than administrative units for the federal behemoth. The feds have the gold, and they increasingly make the rules — in education, health care, and more.

IMPACTS OF DECREASING FEDERALISM

New Deal and Great Society likely impossible w/o 17th Amendment

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

Era changes has not yet resulted in any thorough reexamination of the history of the Seventeenth Amendment. This silence is remarkable in that many aspects of the Progressive Era, and its later cousins, the New Deal and Great Society, may not have been possible without the institutional reform of the direct election of senators.

Government Grows and Special Interests Empowered

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

In general, the activities of the federal government prior to the Seventeenth Amendment were confined to the provision of ‘public goods,’ such as defense and international relations. Redistributive activity to special-interest groups was virtually nonexistent at the federal level. Changing the method by which the Senate was elected undermined the check that bicameralism provided against special interest legislation. Thus, not only was there steady growth in the size of the federal government in the 1920s, but this growth was driven by special interest legislation. The New Deal, of course, accelerated ths trend toward capture of the federal government by special interests.

Wealth Transfers Made Possible

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

By loosening oversight of senators, the Seventeenth Amendment made possible massive wealth transfers by the federal government that had been impossible throughout the nineteenth century.

—————–[later, in same context]

Changing the system for electing senators made monitoring the behavior of senators more difficult and thereby permitted more legislation advancing causes of particular interest groups. In addition, the rise of a national economy changed the traditional structure of relationships between politicians and interest groups. Interest groups extended beyond state boundaries, necessitating new legislation to further their goals. Finally, the Seventeenth Amendment was not uniformally supported throughout the country; it was strongest in regions that stood to gain financially from the reform.

Courts are more activist now

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf

Another was this Amendment has directly weakened state sovereignty is through the federal judiciary One scholar has pointed out that the increasing number of Supreme Court cases holding state laws unconstitutional can be traced directly back to the Seventeenth Amendment. The causal chain that justifies this assertion may be summarized as follows: (1) when U.S. Senators stopped being accountable to the states, they entered into a competition with the states for power; (2) due to this competition, Senators became inclined to protect the institutional interests of the federal government rather than the state governments, thereby increasing their own power; (3) this inclination led Senators to consent to Supreme Court nominees who espoused a more expansive view of the role of the federal government, instead of those who would protect states’ rights; and (4) the confirmations of these new types of justices has sparked a large increase in the number of Supreme Court cases holding laws unconstitutional.

State Legislatures Rendered Irrelevant

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

When state legislatures lost all control over their senators through the Seventeenth Amendment, they became virtually irrelevant to the process of monitoring federal legislation through the state’s senators. In subsequent years, as Congress preempted more and more state legislation, state legislatures were powerless to prevent their slide into ignominy.

DEMOCRACY

The Logical Conclusion: Mob Rule via the Internet (A/T: “More Democracy is Always Better”)

C.H. Hoebeke, (MA, librarian at the University of Virginia and Fellow in Constitutional History at the Center for Constitutional Studies). 1996. Published by The Center for Constitutional Studies. “Democratizing the Constitution: The Failure of the Seventeenth Amendment.” http://www.nhinet.org/hoebeke.htm

Here it is worth pausing to take up the Progressive assertion that the necessity of intermediaries had passed away with the modern improvements in communications and transportation technology. By the early twentieth century, the area over which information could be directly transmitted, and over which in turn the public could directly register its response, would be virtually nationwide. Progressive democracy meant the annulment of representative institutions wherever direct expression could be substituted. Carried to its ultimate conclusion, this logic presaged a single, mass assembly of the people, if and when it ever became technically feasible. The bizarre suggestion occasionally heard about doing away with Congress and establishing direct popular rule via the Internet, a fantasy more or less advocated in the presidential candidacy of H. Ross Perot, is the natural end of Progressive thinking.

Impact: We all want our government to look like the comment section of a Youtube video. And that’s the logical conclusion of the “more democracy is better” philosophy.

Repeal would not Violate Democracy

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

It makes no more sense to argue that to return to this original arrangement would be to “take away” the “rights” of the people than it does to maintain that not being able to vote directly for Supreme Court justices violates their democracy. Everything has its place, and indulging popular sovereignty is simply not what the Senate was designed to do.

Popular Vote Actually Decreases the People’s Voice

C.H. Hoebeke, (MA, librarian at the University of Virginia and Fellow in Constitutional History at the Center for Constitutional Studies). 1996. Published by The Center for Constitutional Studies. “Democratizing the Constitution: The Failure of the Seventeenth Amendment.” http://www.nhinet.org/hoebeke.htm

Aside from contravening the founders’ purposes by removing the representative intermediaries between the people and the Senate, it is highly doubtful that the people were actually given greater control over Senate elections. Instead of selecting a trustworthy delegate from among his neighbors to negotiate the choice of senators on his behalf, the individual voter was now asked to rely on the second- and third-hand accounts of newspapers. At best, his first-hand knowledge of Senate candidates was usually limited to what he heard on the stump or in the rhetoric of debate. Because no state consisted of a single interest, and no candidate wished to alienate the particular audience whose attention he had momentarily been granted, the substance of such engagements would naturally tend either toward telling each group what the candidate thought it wanted to hear, or toward speaking in terms so broad and patriotic as to mean all things to all people.

Goal of Constitution = Liberty, Not Popular Sovereignty (A/T: “Aff plan harms democracy”)

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

The Constitution did not create a direct democracy; it established a constitutional republic. Its goal was to preserve liberty, not to maximize popular sovereignty.

Senate was a check on the people

The Federalist No. 63. March 1, 1788. Published by the Independent Journal. “The Senate (continued). http://constitution.org/fed/federa63.htm

To a people as little blinded by prejudice or corrupted by flattery as those whom I address, I shall not scruple to add, that such an institution may be sometimes necessary as a defense to the people against their own temporary errors and delusions. As the cool and deliberate sense of the community ought, in all governments, and actually will, in all free governments, ultimately prevail over the views of its rulers; so there are particular moments in public affairs when the people, stimulated by some irregular passion, or some illicit advantage, or misled by the artful misrepresentations of interested men, may call for measures which they themselves will afterwards be the most ready to lament and condemn. In these critical moments, how salutary will be the interference of some temperate and respectable body of citizens, in order to check the misguided career, and to suspend the blow meditated by the people against themselves, until reason, justice, and truth can regain their authority over the public mind? What bitter anguish would not the people of Athens have often escaped if their government had contained so provident a safeguard against the tyranny of their own passions? Popular liberty might then have escaped the indelible reproach of decreeing to the same citizens the hemlock on one day and statues on the next.

Method of Election Changed Nature of Representation (A/T: “Senators still represent states, so states are not disenfranchised”)

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

But the mode or manner for choosing senators was hardly irrelevant to the question of whom senators represented, and the states as political entities (rather than mere territorial entities) would no longer be represented. At some theoretical level senators had always represented the people, so that the change to direct election was no change in constituency. But at a more functional level, senators knew they represented state legislatures and that they were immediately accountable to that body. In this sense, the mode of election interfered directly with the manner in which senators saw themselves as representatives of states.

JUSTIFICATION FOR THE 17TH AMENDMENT: OVERVIEW

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

The stated justifications for the Seventeenth Amendment were corruption in state legislatures, deadlock in elections of U.S. senators, and renewed faith in the competence of people to make their own choices for senators.

JUSTIFICATION FOR THE 17TH AMENDMENT: CORRUPTION

Corruption Present in only .5% of pre-17th Senate Elections (A/T: “Repeal would create corruption, bribery by special interests)

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

Critics of repeal have also contended that election of senators by state legislatures was, and would be today, unusually prone to corruption and bribery. But research by historian C. H. Hoebeke found that of the 1,180 Senate elections between 1789 and 1909, in only 15 cases was fraud credibly alleged, and in only seven was it actually found — approximately one-half of 1 percent. Moreover, it is absurd to think that even this modest degree of corruption would be tolerated in the modern media age, any more than politicians can today sell judgeships or other appointed offices, as they frequently did in the past. And even in the progressive era it was not believed that direct election of senators would prevent corruption. Among the Seventeenth Amendment’s staunchest supporters were urban political machines (hardly advocates of clean government), which understood that direct election would boost their control of the Senate as they drove and bribed their followers to the polls.

Bribery of Legislators did not produce clear results

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

In the process of collecting our data, we have already come across explicit investigations into corruption of Senate elections, but it is unclear whether the money paid to legislators actually bought consistent support, much less an actual victory.

Impact: Even in the rare cases of corruption, no clear evidence bribery actually worked.

17th Amendment did not increase accountability

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

“Democracy” may be the cry now. But as Alex Seitz-Wald goes on to acknowledge in his dissent, the primary argument in favor of the 17th Amendment was that it might serve to cut out corruption. Money was said to be rife in politics; direct elections would stamp it out. Lobbying by big business was staining the republic; direct elections would cut the buggers off at the knee. The small constituency that a senator served effectively gave him tenure; an amendment would make the body competitive. Bad behavior among senators was rife; the rigors of direct election would make them moral. And how are things now that the scalpel has been taken to Madison’s handiwork? There is more money in politics than ever before; direct elections have served only to cut out the middleman between lobbyists and politicians; senators rarely lose their seats; and Ted Kennedy killed a woman and got away with it.

State-wide elections increase chances for corruption/bribery

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

One important consequence of the shift to direct election was to increase the need for money and organization to run expensive state-wide races and to mobilize massive numbers of voters. In turn, this has required Senators to supplicate themselves to special interests in the quest for money and power. Thus the movement to direct election may have had results more apparent than real, as direct bribery was merely converted into indirect ‘bribery’ through the need to raise campaign funds and solicit votes directly. Indeed, as a result of these forces, direct election may have had the perverse result of increasing the influence of special interests over Senators and the political process.

No indication of decreased corruption after Amendment

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

Finally, there is no indication that the shift to direct election did anything to eliminate or even reduce corruption in Senate elections. Indeed, there was little reason even among contemporaries to suspect that direct election would have the effect of reducing corruption, as challenged elections and accusation of electoral wrongdoing were significantly more common in House elections than in the Senate. Thus a commentator writing nine years after the adoption of the Seventeenth Amendment noted that ‘fraud is occurring in nearly every state’ and that ‘the amendment has failed its purpose.’

JUSTIFICATION FOR THE 17TH AMENDMENT: DEADLOCK

Only ~2% were deadlocked

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

In over 2% of cases the legislative divisions were so bad that the legislative session adjourned without the choice of a senator. Although 2 percent may not seem like a large number, considering the consequence of a vacant Senate seat in terms of lost patronage and federal service benefits, it is striking how many elections were deadlocked in this way.

Three-Quarters of Senators Chosen within first 2 days

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

Table 1 shows that the vast majority of indirect elections to the U.S. Senate were handled in short order. Roughly three-fourths were either settled in the joint balloting on the first day or on the first round of joint assembly balloting on the second day. Still, nearly a quarter of all elections took longer, which is prima facie evidence that coordination problems were common enough for party leaders to be worried about holding their members in line.

States most affected by deadlock didn’t even support Amendment

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf

‘Between 1891 and 1905, there were forty-six deadlocks across twenty states.’ While this is a legitimate concern, history shows that most repeated deadlocks occurred in newly-admitted western states with inexperienced legislatures, and that more experienced states generally only encountered the occasional deadlock. That this deadlocking problem did not merit a constitutional amendment is evidenced by the fact that several of the states who were most affected by deadlocks did not vote for the Amendment.

Deadlock was rare, Mostly a product of inexperienced legislatures

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

In the fifteen year span examined, only thirteen states deadlocked more than once; only six states twice or more. In most states, it took only one or two deadlocks for the legislature to learn not to repeat the process again. Furthermore, many of the states with repeated deadlocks were newly-admitted western states with inexperienced legislatures and weak party discipline. As western legislators gained experience, deadlocks became less frequent. As one historian has written of the Utah deadlocks of 1897 and 1899, ‘[T]he struggle of 1897, and the failure of 1899, seemed to be a good teaching experience and Utah’s legislature never again failed to elect a senator so long as it had that responsibility.’

Deadlock didn’t prevent normal business from occurring

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

The final internal explanation for passage of the Amendment is that electing Senators distracted state legislators, especially when deadlocks occurred. History, however, reveals that even when deadlocking was a problem, the amount of time dedicated to the election process amounted to one vote at the beginning of each day –then the legislators would continue with their normal affairs. Thus, in retrospect, none of the internal explanations for the Amendment sufficiently justified amending the Constitution.

JUSTIFICATION FOR THE 17TH AMENDMENT: CONTROL BY THE PEOPLE

Americans now have less a voice in the political process

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

A decline in the political process was natural because the less political power in question, the less incentive to be involved –and, ironically, direct election decreased the political power of the average citizen. Suppose a small, local rotary club has particular concerns with a piece of legislation before the U.S. Senate. Suppose further that the state population is 2,250,000, the ideal district size for each state House of Representatives district is 30,000 constituents, and the state legislature is comprised of seventy Representatives and thirty Senators. Before the Amendment, these citizens would have been able to exert some influence over their senator’s conduct by simply contacting their state representative, who would have had both incentive to take them seriously and power to influence that state’s U.S. Senators.

——————–[later, in same context]

Because average Americans’ votes now bear less weight to their Senators, the average American has less incentive to be involved in the political processes associated with voting for and monitoring their Senators.

Decreased Oversight (A/T: “The people can hold Senators accountable”)

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

The decrease in monitoring resulted from the fact that the voters at large are both less capable of monitoring and less likely to do so than the state legislatures. Voters are less capable because they simply cannot devote the same amount of time a legislator can to considering the issues and details on the senatorial agenda. As Montesquieu stated (in blunt fashion), ‘The great advantage of representatives is, their capacity of discussing public affairs. For this the people collectively are extremely unfit, which is one of the chief inconveniences of a democracy.” Additionally, voters have less incentive to monitor than legislators because a voter ‘senses the insignificance of his individual ballot,’ while a legislator was one of a small group whose every vote was worth lobbying for to a Senator.

Voters have no accountability mechanism (between elections)

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

There is, unfortunately, no mechanism for the people to exercise any direct control over their senators in the interim. To put it another way, there is no means for senators to give an accounting of themselves-other than through the mechanism of an election. That would seem to suggest that we have less control of senators than previously. The Seventeenth Amendment answered the people’s craving for the reins of democracy, but at the level at which senators operate, democracy is a poor master.

More voters = more special interest power

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

In an electorate of millions of voters, most individuals lack the incentive to study the issues and vote. This ‘rational ignorance’ allows well-organized interest groups to use the political process to transfer wealth from the dispersed public to themselves. Powerful special interests receive government favors and wealth transfers; politicians receive, in return, votes, money, and reelection.

State Legislators are best choice for electing Senators

C.H. Hoebeke, (MA, librarian at the University of Virginia and Fellow in Constitutional History at the Center for Constitutional Studies). 1996. Published by The Center for Constitutional Studies. “Democratizing the Constitution: The Failure of the Seventeenth Amendment.” http://www.nhinet.org/hoebeke.htm

Even in those days of sparse population, direct elections were ruled out as a mockery of the true principles of representation. Candidates would have too little acquaintance with any but the largest or most vocal interests. By the same token, the individual citizen’s vote, and the knowledge upon which it would be cast, counted for so little among the mass electorate that it would more than likely favor the intrigues of a well-organized few, adept at “taking advantage of the supineness, the ignorance, the hopes and fears of the unwary and interested.” Locally elected legislators, chosen with greater competence on the part of the people, would serve as trustworthy intermediaries to select to the Senate “those men only who have become the most distinguished by their abilities and virtue.”

SPECIAL INTERESTS

Lobbyists Now Focus on 1 Senator instead of entire Legislature

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

If the proponents’ real concern was eliminating corporate influence, the Amendment may have only facilitated the influence. The proponents thought that corporations would have less influence with the electorate than with the legislature, but direct election turned the corporations’ attention from the legislature to the candidates themselves, lowering the costs of securing influence. As senators refocused on a mass electorate rather than a relatively small group of legislators, they became amenable to the influence of powerful lobbies. The Seventeenth Amendment reduced the cost of lobbying by eliminating the state legislatures as a countervailing source of control over U.S. senators. Direct election enabled lobbyists to focus directly on the senators rather than on the entire state legislature.

Log-rolling agreements now easier for Special Interests

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). Winter 1997. Published by The Independent Review. http://www.independent.org/publications/TIR/article.asp?issueID=35&articleID=450

The ability of factions or special interests to capture control of the federal government was mitigated by requiring bills to receive the approval of the public, speaking through their representatives in the House, and the approval of the state legislatures, speaking through their representatives in the Senate. The transition to direct election made the constituencies represented in the House and Senate more similar, thereby facilitating creation of logrolling agreements across the two houses of the national legislature. Moreover, it made the procurement of special-interest legislation easier by allowing special interests to lobby the Senate directly, rather than having to proceed through the intermediaries of the state legislatures.

Senate Previously Stopped Special Interest Legislation

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1994. Published by the Oregon Law Review. “Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment.” http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf

In the decades leading up to the passage of the Seventeenth Amendment, the Senate consistently frustrated the redistributive desire of the House. Special-interest legislation frequently passed the House, only to stall in the Senate. For instance, in 1911 alone, the House passed twenty-seven pro-labor measures, eighteen of which were rejected by the Senate.

Shorter Election cycles narrowed window for special interest influence

Scott Bomboy, (MA, and Editor in Chief at the National Constitution Center). April 8, 2013. Published by Yahoo News. “What would the Senate look like without the 17th Amendment?” http://news.yahoo.com/senate-look-without-17th-amendment-095822973.html

Another factor would be campaign spending. Millions of dollars of outside money poured into 2012 U.S. Senate elections. According to data from the Campaign Finance Institute, $315 million was spent on U.S. Senate campaigns in 2012. The U.S. Senate race in Virginia has $51 million in spending by itself. Under the pre-1913 voting rules, the candidates for that seat wouldn’t even be in play until after the November general election was over, so there would be no opportunity for special interests to invest in campaigns.

SOLVENCY

Unpopular Reforms Made Possible

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

Finally, with the exception of the Supreme Court, all of the nation’s federal representatives are essentially elected by the people. This has broad implications for policy making as well as solving the largest of the country’s issues. Many problems that need to be solved that are facing the country require some solutions which would definitely be described as unpopular. For example, the national debt is skyrocketing with no real fix in sight. Much of the problem comes from the entitlements that have been built into the budget, to the extent of encompassing 60% of its entirety. There clearly needs to be some sort of cuts to these programs, but no politician is willing to do so because his reelection depends on keeping them happy, or at least having their anger pointed away from him. Without a body that is at least partially removed from the people, no institution can make the real decisions that are necessary for the nation. While there is a renewed interest in making cuts to the budget by the people, it would appear that most do not want their own personal benefits to be slashed. Without a body removed from the people, it is hard to see how any real, long-term solutions can be produced.

Madison: State Legislatures are vigilant in restricting Feds

Charles C.W. Cooke (Graduated from Oxford after studying Modern History and Politics. Editorial Associate at National Review). March 1, 2013. Published by National Review Online. “Repeal the 17th Amendment!” http://www.nationalreview.com/articles/341894/repeal-17th-amendment-charles-c-w-cooke

The state legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal government admit the State Legislatures to be sure guardians of the people’s liberty.

Senators Acted For the States

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). November 15, 2010. Published by National Review Online. Repeal the Seventeenth Amendment. http://www.nationalreview.com/articles/252825/repeal-seventeenth-amendment-todd-zywicki

Under the original arrangement, senators had strong incentives to protect federalism. They recognized that their reelection depended on pleasing state legislators who preferred that power be kept close to home. Whereas House members were considered representatives of the people, senators were considered ambassadors of their state governments to the federal government and, like national ambassadors to foreign countries, were subject to instruction by the parties they represented (although not to recall if they refused to follow instructions). And they tended to act accordingly, ceding to the national government only the power necessary to perform its enumerated functions, such as fighting wars and building interstate infrastructure. Moreover, when the federal government expanded to address a crisis (such as war), it quickly retreated to its intended modest level after the crisis had passed. Today, as historian Robert Higgs has observed, federal expansion creates a “ratchet effect.”

State representation through Instruction

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

The primary mechanism for enforcing the Senator-state legislature agency relationship established by the Constitution, was through the mechanism of ‘instruction.’ ‘Under this practice, state legislatures told senators how to vote on particular legislative items.’

Enforcement Existed for Instruction

James Christian Ure, (J.D. magna cum laude from South Texas College of Law. In law school, also served as President of the Federalist Society and the J. Reuben Clark Law Society. He clerked for a Texas state court judge and interned for the majority whip in the Utah House of Representatives). Fall 2007. Published by the South Texas Law Review. “You scratch my back and I’ll scratch yours: Why the federal marriage amendment should also repeal the Seventeenth Amendment.” http://xa.yimg.com/kq/groups/18873407/961742462/name/Federalism+-+Ure.pdf [note: all quotations and brackets below are original]

This state influence over the instrument of the Senate was exercised not only through the election itself, but through methods such as “instruction.” Under this practice, state legislatures told Senators how to vote on particular bills. This practice was rooted in the theory that a Senator was ‘an ambassador of the State to the nation.’ Failing to follow these ‘instructions’ was an offense serious enough to lead to the resignation of several non-complying Senators before their terms were complete States were firm with their Senators because ‘[a]s agents of the state legislatures, the primary duty of senators was to protect the sphere in which state and local governments could operate, free from the potentially strong arm of Washington.”

Competition Existed (A/T: “Elections by Legislatures were mere rubber stamps”)

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

Party machine leaders were certainly critical, but even the “big boss” could lose. Rival factions might test the strength of top leaders. Short-term electoral setbacks might provide openings for insurgent elements within a party. Minority party legislators always had incentives to exploit divisions within the majority party, hoping for a fusion candidate.

Legislative Elections Were Not Foregone Conclusions (A/T: “Legislative Candidate pledging to vote for Senate candidate = de facto popular vote”)

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University). November 2003. Published by New York University. “Climbing and Clawing Their Way to the U.S. Senate: Political Ambition and Career Building 1880-1913.” http://www.nyu.edu/gsas/dept/politics/seminars/ws1201.pdf

Although a party majority in the State House and Senate would often guarantee a U.S. senator of that party, it did not guarantee agreement around a single candidate because the majority party could be comprised of several factions supporting different U.S. Senate candidates. Moreover, state legislators who had professed support for a specific candidate would frequently have to abandon that candidate if it became clear he could not attract the sufficient number of votes to reach a majority.

RANDOM STUFF

Rules Governing Elections by State Legislatures

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University) and Professor Charles Stewart III (Ph.D. from Stanford University. He has taught Political Science at MIT since 1985). Drafts first presented April 2006. Most recently presented February 2007. Published by the Massachusetts Institute of Technology. “Challenging the Myths of 19th Century Party Dominance: Evidence from Indirect Senate Elections 1871-1913.” http://web.mit.edu/cstewart/www/StewartSchillerapsa07FINAL.pdf

For the period covered by this paper, Senate election procedures were covered by an 1866 law that was passed in response to controversies that arose in Senate elections prior to the Civil War.1 The framework enunciated in the 1866 act provided for a two-step process. As had been typical before 1866, each chamber was required to meet separately at noon on the second Tuesday after the state legislature had organized, to vote separately for senator. On the following day at noon, the two chambers were required to meet in “joint assembly” to canvass the votes. If a majority of members of each chamber favored the same candidate, he would be declared elected. If one or both chambers failed to elect a senator with a majority of votes, or if the two chambers produced different majority vote winners, then the joint assembly would vote to choose a winner, acting as a single body. If no candidate secured a majority of the joint assembly, House and Senate members were required to meet together and ballot at least once a day until a senator was chosen or their legislative session adjourned sine die. States failing to elect a senator once the legislature had adjourned would have to endure the vacancy, since the U.S. Senate would not seat a gubernatorial appointee if the vacancy had occurred because of the failure of the legislature to elect.

Senators Then no Richer than Today (A/T: “Pre-17th Amendment = Plutocracy”)

Second Lieutenant Jay Zeigler. (Awarded The Brigadier General Douglas G. Murray Award for Excellence in American Politics; the Major General Robert G. Smith Award for Outstanding Performance in the Discipline of Political Science; and the Top Falcon Scholar. Zeigler also earned top military honors.) 2011-2012. Published by The Fellows Review. “The 17th Amendment: Attempting to Cure the Problems of Democracy with More Democracy.” http://cspc.nonprofitsoapbox.com/storage/documents/Zeigler-_Final_Paper.pdf

Another broad criticism of the Senate was that the institution was a bastion of rich men outside the touch of common Americans. However, the Senate at the time when reform calls were the loudest was not any richer than today (Hoebeke 101).

Senators Now Remain in Power Longer (A/T: “17th Reduced the number of Career Senators”)

Associate Professor of Law Jay S. Bybee, (J.D. cum laude from Bringham Young University. Professor Bybee teaches law at Louisiana State University. In 2001 he was appointed Assistant Attorney General in the U.S. Department of Justice. In 2003 he was confirmed to the US 9th Circuit Court of Appeals, where he currently serves). January 1, 1997. Published by the Northwestern University Law Review. Ulysses at the mast: Democracy, Federalism, and the sirens’ song of the Seventeenth Amendment.” http://scholars.law.unlv.edu/cgi/viewcontent.cgi?article=1365&context=facpub

History has shown these predictions incorrect. Senators had already begun to regard their positions as careers in the 1890s, and the number of senators serving consecutive terms remained about the same from the 1890s to the 1950s, but has increased since then. Rather than serving to limit senators’ terms, the Seventeenth Amendment has contributed to longer terms. There are at least two reasons for this phenomenon. First, once the election of senators was taken from the legislatures, the election was abandoned to party machines. Party bosses, not legislative compromise, determined who would be elected. Machines could more easily manipulate candidates and the populace than they could the egos of legislators. Second, the ambitions of the legislators themselves had helped to curb the terms served in the Senate. The Seventeenth Amendment worked against rotation or tenure limits because the elective body (the people) had less ambition to the office it controlled. Legislators had more natural ambition to the office and thus more incentive to watch senators. As a result senators had to be responsive to legislators’ concerns. The ambitions of state legislators helped curb lengthy stays in the Senate.

BONUS: Negative Brief

NEG PHILOSPHY: Completely counter the idea of Federalism by doubling down on government by the people. Otherwise, the Solvency and DA’s are fairly self-explanatory. As for the second Solvency point about Popular Elections happening even w/o the 17th: A great example is the Lincoln-Douglas debates, which were *not* waged over the actual Senate seat, both over state legislators who had pledged their votes to either Lincoln or Douglas. Also, I didn’t include a card on this, but you could probably construct a good DA about how we shouldn’t change a part of the Constitution that was approved by the people and the state legislatures (who supposedly lose so much with this Amendment) just 100 years ago. The Founders set a very high bar for amending the Constitution…and this Amendment passed the test.

COUNTER-CRITERION: Rule by the People.

Thomas Jefferson. 1801. http://www.famguardian.org/Subjects/Politics/ThomasJefferson/jeff0500.htm [Note: the “…” is original to the text displayed in the link.]

The will of the people… is the only legitimate foundation of any government, and to protect its free expression should be our first object.

Link 1: Consent is the Measure of Legitimacy

Compare the countries of Israel and Communist China, both of which restrict their citizens’ rights.

US Department of State. March 6, 2006. Israel and the Occupied Territories http://www.state.gov/g/drl/rls/hrrpt/2005/61690.htm

“The law provides citizens with the right to change their government peacefully, and citizens exercised this right in practice through periodic, free, and fair elections held on the basis of universal suffrage.”

Impact: Contrast the countries of Israel and Communist China. In the country of Israel, individual rights, such as freedom of action and the right to privacy, are occasionally violated to ensure national security. However, even though it infringes upon individual rights, Israel’s government is legitimate because it respects the people’s wishes. Contrast this to the country of China, which also infringes upon individual rights such as freedom of action and the right to privacy. But when Communist China takes away the people’s rights, we view it as a great atrocity against humanity, because those rights are taken away without the people’s consent.

Link 2: The First Part of Republic

Preamble of Constitution. http://www.law.cornell.edu/constitution/preamble

We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Link 3: Government Is By and For the People

Gettysburg Address. http://www.abrahamlincolnonline.org/lincoln/speeches/gettysburg.htm

It is rather for us to be here dedicated to the great task remaining before us — that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion — that we here highly resolve that these dead shall not have died in vain — that this nation, under God, shall have a new birth of freedom — and that government of the people, by the people, for the people, shall not perish from the earth.”

Violation:

1.) Aff disenfranchises nearly every American citizen.

2.) Aff returns Senate elections to politicians rather than the people.

3.) Aff overturns Constitutional Amendment passed with the overwhelming approval of the people (via their state legislatures).

SOLVENCY 1: Little Change in Senate Composition

Most Senators Elected Either Way

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

The assumption underlying such claims is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power. Unfortunately, repeal of the Seventeenth Amendment is unlikely to have the effect that advocates hope for. This is so for two reasons. The Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly-elected senators.

In the First Direct Election, all 25 Incumbents Re-elected

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

Far from a wholesale purging of old Senators and replacing them with new Senators, there was virtually no change in membership in the Senate following the adoption of direct election. When the first direct elections were held in 1914, all of the twenty-five senators running for re-election were returned to the Senate.

SOLVENCY 2: Popular Election Prevalent Even Without 17th Amendment

Already Happened in 2/3 of the states

Professor Kris. W. Kobach, (J.D. in 1995 from Yale Law School, and MA and D.Phil. from Oxford University. He was a professor at the University of Missouri-Kansas City, was awarded a White House Fellowship in 2001, and is currently the Secretary of State of Kansas). 1994. Published by the Yale Law Journal. “Rethinking Article V: Term Limits and the Seventeenth and Nineteenth Amendments.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf and http://www.jstor.org/discover/10.2307/797019?uid=3739256&uid=2&uid=4&sid=21102473314361

Through incremental state action, the structure of the Senate had been transformed. Consequently, enough senatorial support existed to etch into the formal constitutional text what was already a reality in nearly two-thirds of the forty-six states. All that remained were the final two stages – congressional proposition and state ratification – which would convert this incremental amendment into a normal constitutional amendment and impose it uniformly across the country.

Most State Legislators Themselves Had Already Given Away Power

Professor Todd Zywicki, (J.D. from the University of Virginia School of Law. Professor Zywicki currently teaches at George Mason University School of Law, and is a senior scholar of the Mercatus Center). 1997. Published by the Cleveland State Law Review. “Beyond the Shell and Husk of History: The history of the Seventeenth Amendment and its implications for current reform proposals.” http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf

Thus, during the period preceding the adoption of the Seventeenth Amendment, there was increasing popular participation in the process of electing U.S. Senators. The conventional conclusion drawn from this story is that the adoption of the Seventeenth Amendment ‘simply universalized a situation which a majority of state legislatures had already created.’ The Seventeenth Amendment did nothing more than formalize and make uniform the electoral practices of most of the states.

Banning All Votes Ineffective (A/T: “Just ban any form of popularly-electing Senators”)

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

In theory, popular election could potentially be blocked if the amendment repealing the Seventeenth included a ban on state legislation designed to ensure that senators are chosen by popular vote. It would be difficult, but perhaps not impossible, to draft an amendment that could effectively preclude all the different devices state legislatures could use to promote popular election of senators.7 But an amendment of that type would face even more daunting political odds than a straightforward repeal of the Seventeenth. In addition to the extraordinary uphill struggle that any amendment effort faces, such a preclusive amendment could be portrayed as infringing on state autonomy, as well as undermining democracy. And even an amendment banning the use of popular vote devices for selecting senators could not prevent state legislators from promising to choose whatever candidate for the Senate had the greatest amount of popular support, as demonstrated, for example, by public opinion polls. In many states, there might be substantial political pressure for state legislators to make such pledges.

SOLVENCY 3: No Cut to Federal Power

Legislators No More Opposed to Federal Power than Voters

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

The assumption underlying such claims is that senators elected by state legislatures would be more interested in protecting state autonomy than senators elected by voters, and therefore more committed to limiting federal power. Unfortunately, repeal of the Seventeenth Amendment is unlikely to have the effect that advocates hope for. This is so for two reasons. The Amendment actually had little if any effect on the scope of federal power because most senators would have been popularly elected even without it. Moreover, there is no reason to expect senators elected by state legislatures to be more opposed to federal power than popularly-elected senators.

Modern State Legislators Like Federal Handouts

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

Whatever was the case before 1913, under modern conditions senators chosen by state legislatures often have strong incentives to support expanded federal power. Those incentives arise precisely because senators’ reelection depends on “pleasing state legislators.” The state legislators in question are often heavily dependent on federal subsidies and regulations. They are unlikely to do anything to overturn the federal trough at which they themselves regularly feed.

Federal Grants compose approx. one quarter of state budgets

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

In 2009, federal grants-in-aid accounted for 24.2% of all state government revenue, up greatly from 19.8% in 2007. State governments are anxious to get as much federal grant money as possible. This reality is unlikely to change if the Seventeenth Amendment were repealed and legislative selection of senators reinstated. To the contrary, senators chosen by state legislators would face even stronger incentives to lobby for additional federal grants than popularly-elected senators do. The political survival of the former would be completely at the mercy of the very state governments that benefit from federal grants.

DISADVANTAGE 1: Less Accountability

Special Interests Empowered

Associate Professor of law Ilya Somin, (J.D. from Yale Law School. He currently teaches at George Mason University School of Law, and is Co-Editor of the Supreme Court Economic Review. His work has appeared in the Yale Law Journal, Stanford Law Review, Northwestern University Law Review, and Georgetown Law Review). September 2011. Published by the Federalist Society. “Federalism & Separation of Powers.” http://www.fed-soc.org/doclib/20110912_ZywickiSominEngage12.2.pdf

If senators were chosen by state governments rather than by voters, the composition of federal spending and regulation might indeed change. More federal money would flow to state governments and those interest groups that have influence over them. We could potentially see more federal grants to small, local interest groups, such as those that lobbied for the notorious “bridge to nowhere” in Alaska. There would also be more regulations benefiting state officials and associated private interests. On the other hand, the federal government might become less solicitous of interest groups that do not have much leverage at the state level.

Legislature Turnover = Less Accountability

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University). November 2003. Published by New York University. “Climbing and Clawing Their Way to the U.S. Senate: Political Ambition and Career Building 1880-1913.” http://www.nyu.edu/gsas/dept/politics/seminars/ws1201.pdf

But there was a great deal of turnover in state legislatures at that time, so senators frequently faced a different set of legislators than the group who had elected them previously when they came up for reelection. How could senators anticipate the composition and preferences of state legislators who had yet to be elected? Moreover, who was holding senators accountable if the state legislators who initially elected them were no longer in office?

Currently, Senators Have Pronounced Relationship with the People

Rhonda Wrzenski, (BA, Hastings College, 2003) Master of Arts Thesis (submitted to Graduate Faculty of Louisiana State University). May 2005. Published by Louisiana State University. “Testing Democracy: The case of the 17th Amendment and Constituency Represenation.” http://etd.lsu.edu/docs/available/etd-04142005-104058/unrestricted/Wrzenski_thesis.pdf

My primary hypothesis stated that a positive relationship should develop between constituency preferences and Senate roll call voting behavior after the ratification of the 17th amendment. As evidence of this, between the 51st and the 76th Congress, the conservatism of the voters is shown to have a significant effect on the conservatism of senators while the conservatism of the elites does not demonstrate any significant effect. Furthermore, following the ratification of the amendment in 1913, the relationship between the voters and the senators is very pronounced while the relationship between the state elites and the senators becomes insignificant. Both of these findings provide evidence that legislative responsiveness has increased as a result of senators moving from a no-election condition to a state of constant electoral threat. As hypothesized, Senators are paying more attention to the ideology of the voters then to that of the governor and the upper and lower chambers of the state legislature.

DISADVANTAGE 2: Rule by the Elite Rather than the People

People Disenfranchised

Professor Sean Gailmard (Ph.D. from the California Institute of Technology. He currently teaches in American Government in the Political Science Department of the University of California, Berkeley. He won the William H. Riker Prize from the American Political Science Association in 2013 as the best book in political economy published in the last three years, as well as Statistical Modeling and Inference for Social Science, a Ph.D.-level textbook.) and Professor Jeffrey A. Jenkins, (Ph.D. in Political Science from the University of Illinois at Urbana-Champaign. He is currently a Professor at the Woodrow Wilson Department of Politics at the University of Virginia). February 2008. Published by The Quantitative Social Science Initiative at Penn State University. “Agency Problems and Electoral Institutions: The 17th Amendment and Representationin the U.S. Senate.” http://qssi.psu.edu/files/jenkins_psu.pdf

Thus the state electorate was essentially forced, before the 17th Amendment, to delegate the selection and monitoring of U.S. Senators to the relative political experts in the state legislature. In terms of representation, the major problem with this arrangement is that the state legislature’s (or controlling faction’s) preferred standard of behavior need not be the mass electorate’s preferred standard of behavior. Because elections are blunt instruments of selection and control, and mass elections typically have a small number of candidates, the state electorate must incur some “agency losses” relative to first-best, perfect control of the decisions of the state legislature. This is because opportunistic state legislators or party bosses can be expected to have substituted, to some extent, their own preferences for those of the state electorate in decision making.

Senators were career Politicians before 17th Amendment (A/T: “The 17th Made Senators career politicians”)

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University). November 2003. Published by New York University. “Climbing and Clawing Their Way to the U.S. Senate: Political Ambition and Career Building 1880-1913.” http://www.nyu.edu/gsas/dept/politics/seminars/ws1201.pdf

In the electoral environment in most states during this era, men who wished to be elected to the Senate — and reelected — had to be political entrepreneurs, vowing to protect specific interests in their states and cultivating strong ties with state party organizations. The men who reached the U.S. Senate during this era had extensive prior experience, either in the state legislature, Congress and/or the governor’s mansion. Of the 54 senators studied here, 45 held a government post prior to being elected to the Senate.

Now, Voters Hold Senators Accountable (A/T: “The 17th destroyed oversight of senators”)

Professor Sean Gailmard (Ph.D. from the California Institute of Technology. He currently teaches in American Government in the Political Science Department of the University of California, Berkeley. He won the William H. Riker Prize from the American Political Science Association in 2013 as the best book in political economy published in the last three years, as well as Statistical Modeling and Inference for Social Science, a Ph.D.-level textbook.) and Professor Jeffrey A. Jenkins, (Ph.D. in Political Science from the University of Illinois at Urbana-Champaign. He is currently a Professor at the Woodrow Wilson Department of Politics at the University of Virginia). February 2008. Published by The Quantitative Social Science Initiative at Penn State University. “Agency Problems and Electoral Institutions: The 17th Amendment and Representationin the U.S. Senate.” http://qssi.psu.edu/files/jenkins_psu.pdf

The 17th Amendment made the terms of the agency relationship quite different. Instead of indirect agency, the principal-agent relationship between voters and U.S. Senators was obviously more direct. Voters no longer had to rely on an imperfectly controlled intermediary to hold a further downstream agent to account for them. Instead, they themselves could select new U.S. Senators, and try to induce desired behaviors from sitting senators with any given ideology, based on their own preferences. To the extent that voters were informed about the preferences of new Senate candidates or the behavior of sitting senators, they could hold them accountable just as well as state legislatures could – and hold them to a better standard (from their own point of view, and from a normative democratic point of view)

DISADVANTAGE 3: Legislature Races Politicized

Associate Professor Wendy J Schiller, (Ph.D. in Political Science from the University of Rochester. Professor Schiller currently teaches Political Science and Public Policy at Brown University). November 2003. Published by New York University. “Climbing and Clawing Their Way to the U.S. Senate: Political Ambition and Career Building 1880-1913.” http://www.nyu.edu/gsas/dept/politics/seminars/ws1201.pdf

The increase in strong partisanship at this time also brought with it increased conflict in state legislators over choices for the U.S. Senate. As political party organizations strengthened at the state level, and voters began to associate policy platforms with parties, contests for the Senate moved outside the state legislature to a wider public audience. In many states, the public canvass and “direct primaries” emerged, which tied voters’ choices of state legislators to their subsequent votes for senators. When placing announcements of their candidacy in local papers, state legislature candidates would include the name of the man they favored for the U.S. Senate.

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