Ben Sasse Is Wrong: Keep the 17th Amendment

Senator Ben Sasse (R., NE) attends a Senate Judiciary Committee hearing in Washington, D.C., June 16, 2020.
(Tom Williams/Reuters)

Senator Ben Sasse’s Wall Street Journal op-ed on procedural reforms he would propose for the Senate is a mixed bag of good policy-process ideas (overhauling the budget process, sunsetting federal laws), more debatable ones (replacing standing committees with ad hoc problem-specific committees), nostalgia (longing for the days when senators debated on a full floor and bunked together in Washington), and bad structural-change proposals that would require amending the Constitution (extending Senate terms to 12 years and barring reelection, repealing the 17th Amendment’s direct election of Senators). Repealing the 17th Amendment is a particularly popular idea in conservative circles: It would restore the original constitutional design, empower state governments, and undo a Woodrow Wilson-era Progressive reform. Sasse:

The old saying used to be that all politics is local, but today — thanks to the internet, 24/7 cable news and a cottage industry dedicated to political addiction — politics is polarized and national. That would change if state legislatures had direct control over who serves in the Senate.

It is true that direct election of senators has coincided with, and almost certainly contributed to, the growth of the federal government at the expense of the states. But restoring the indirect election of senators is unlikely to fix the problems Sasse identifies. First of all, the growth of nationalized politics driven by nationalized media is, by now, all-consuming: Everything is interpreted through the lens of the person of the president. Even many state and local elections these days end up as de facto referenda on Donald Trump or Barack Obama. Having senators answer to a different electorate would not change the fact that those electorates are obsessed with the White House. There was a time when voters wanted state-government figures to bring their ideas and experience to Washington: That’s how we got Ronald Reagan, Bill Clinton, George W. Bush, Jimmy Carter, and Franklin D. Roosevelt in the White House, as well as presidential nominations for Mitt Romney, Michael Dukakis, Adlai Stevenson, Tom Dewey, Alf Landon, and Al Smith. But the voters seem to have lost interest in that in recent cycles, preferring high-national-profile figures such as Donald Trump, Joe Biden, and Hillary Clinton over governors such as Scott Walker, Jeb Bush, Jay Inslee, John Kasich, Rick Perry, Bobby Jindal, Martin O’Malley, Chris Christie, John Hickenlooper, Mike Huckabee, Deval Patrick, Steve Bullock, Jim Gilmore, and George Pataki.

More broadly, I made the case at some length back in 2006 that restoring the indirect election of Senators would be bad for conservatism in general and popular, non-elite control of the Senate in particular (and these points go double for Sasse’s notion of a Senate where nobody ever faces the voters again). A summary:

I. Accountability

Direct election means direct accountabillity to the voters . . . . Time and time again we have seen that the directly elected branches of government, and only the directly elected branches of government, will stand up for conservative principles on taxes, national security, and especially social issues. Why? In part because of the “elite consensus” phenomenon, where people who answer only to other politicians end up listening only to other politicians and the things they believe in, rather than being compelled to tailor their ears as well as their messages to the population as a whole. If you want examples, look no further than the world’s most prominent examples of indirect government — the European Union and the United Nations. . . . Throughout Europe, parliamentary systems are famously unresponsive to “populist” concerns they deem to be beneath their notice, like crime and immigration. . . . Or consider the issue of judicial nominations. Your red-state Senate Democrat will run for re-election, it is true, on a menu of issues — but he or she can be pounded for obstructing good judges or supporting bad ones. It’s the Senator’s own vote. . . it’s much harder to hold a local state legislator responsible for those votes in far-off Washington, cast by someone else.

II. Spending

The accountability issue takes on a particularly problematic cast when you consider spending. One of the developments that disturbs me most about federal spending, whether it’s done through pork-barrel earmarks, block grants, or entitlement programs, is the tendency to use the vast revenue-raising powers of the federal government to raise money, and then kick it back to states and localities to spend. . . . If you think we could solve this accountability shell game by creating a class of Senators whose only constituency is state legislators. . . . State legislators would love nothing more than to solve all their budgetary problems by taking handouts raised by the federal treasury . . . an indirectly elected Senate would be AFSCME’s dream.

III. Gerrymandering

Consider: the Senate is the only legislative body among the two Houses of Congress and the various state legislatures where the elected officials don’t get to choose their voters. At present, state legislatures (or, in a few states, nonpartisan commissions) get to draw the district lines for the state legislature and for the House. And those lines not only lead to a lot of partisan mischief but also to efforts to place incumbent-entrenchment above even the interests of the parties. Today, the Senate alone is free of that concentration of power, providing a genuine democratic check on the power of the gerrymander. Having Senators elected by the state legislature would remove that check.

Republicans since 2006 have been roiled by not one but two waves of populist, anti-establishment revolt, first the Tea Party (which picked off several incumbent Senators and helped elevate Ben Sasse himself to the Senate) and then Donald Trump. Neither of these would have been possible under an indirect-election system, in which senators are elected by other politicians. That would be fine with me in Trump’s case, but not the Tea Party; I’d suspect most conservatives were in favor of at least one of the two.

Sasse is frustrated, as many politicians are frustrated, that he has to spend a lot of time catering both to the elite donors whose money is necessary to run campaigns and to voters who may be swept away in misguided populist enthusiasms — and that it is hard to do business with other politicians who are similarly preoccupied. But then, nobody said governance and leadership were easy.