On May 31, 1913, the 17th Amendment became part of the U.S. Constitution providing for the popular election of U.S. senators and doing away with the Founding Fathers’ design, which vested that power with state legislatures. It was, at the height of the Progressive Era, an overwhelmingly popular move toward purer democracy.
One hundred years later, it has become an article of faith among many tea party activists that the 17th Amendment was a terrible mistake that undermined the federal system, reducing state power in relation to the federal government, and ought to be repealed.
For most Americans it remains an arcane issue, with a radically retro sound to it, a throwback, perhaps, to an age when generally only white, male property owners could vote. But nowhere has repealing the 17th Amendment gained more traction from political heavyweights than in Texas.
Most recently, both Lt. Gov. David Dewhurst and one of his challengers, state Sen. Dan Patrick, pledged their allegiance to the repeal movement at an Oct. 3 debate sponsored by the Clear Lake Tea Party in Houston.
“Right now many members of Congress, United States senators and United States congressmen don’t have a feeling for what the states need,” Dewhurst said. “A reversal of the 17th Amendment would make all of our United States senators listen daily to the heartbeat of the legislatures and not be passing the laws that cost all of us.”
“Gross overreaches of the federal government, like Obamacare, would never have seen the light of day if the states were still represented strongly in Congress through the Senate as it was originally envisioned,” Patrick said. “It is absolutely necessary that the 17th Amendment be repealed to revitalize our republican system of government.”
During the 2012 U.S. Senate race, Dewhurst and rival Ted Cruz shared their misgivings about the 17th Amendment. And in his 2010 book, “Fed Up,” Gov. Rick Perry cited a pernicious symbiosis between the 16th Amendment, creating the income tax, and the 17th: “Why, you might ask, would states ratify an amendment that gives the federal government direct access to our wallets while relinquishing state control over what happens with the money taken?” (Chip Roy, now Cruz’s chief of staff, helped write “Fed Up.”)
At first blush, repeal would seem an odd fit as a tea party issue.
“The tea party is a populist movement and, yet, the 17th Amendment was to cure one of the more elitist aspects of the Constitution,” said historian Geoffrey Kabaservice, author of “Rule and Ruin: The Downfall of Moderation and the Destruction of the Republican Party.”
In most cases, Kabaservice said, “The tea party would have pretty limited input into the choice of the senator if the 17th Amendment were to be repealed.”
Certainly, Dewhurst, who presides over the Texas Senate, would have likely prevailed over tea party favorite Cruz if the choice had been left to his legislative colleagues.
Kabaservice suspects that what has tainted the 17th Amendment for the tea party is its historical pedigree.
“What they have learned from Glenn Beck is that everything connected to the Progressive Era is bad and has to be done away with,” Kabaservice said.
It’s not just Glenn Beck.
In remarks in 2010 at Texas Tech University Law School in Lubbock, Supreme Court Justice Antonin Scalia blamed the amendment on “a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the 20th century.”
Ralph Rossum, the Salvatori Professor of American Constitutionalism at California’s Claremont McKenna College, said that he scoured the Congressional Record in the decades leading up to the amendment and found scarcely any defense of “what the framers thought was this great mechanism … not to allow too much power to be sucked into the federal vortex.”
To their credit, said Rossum, “I think the tea party types are more committed to the Constitution and to issues of structure than a lot of people, and they see the 17th Amendment to have fundamentally altered the structure of the original Constitution in a way they see as profoundly damaging.”
But, said Rossum, author of the 2001 book “Federalism, the Supreme Court and the Seventeenth Amendment: The Irony of Constitutional Democracy,” repeal is simply a lost cause.
It would never pass Congress, let alone win the necessary ratification from the legislatures in 38 states. He said most state legislatures couldn’t wait to rid themselves of the responsibility, which chewed up precious time, became the source of occasional scandal and, between 1885 and 1912, led to 71 legislative deadlocks that left Senate seats vacant for an entire legislative session or longer. There was no senator from Delaware from 1901 to 1903.
In 1893, California became the first state to petition for a constitutional convention to move to direct election of senators, and, six years later, Texas was the second state. By the time the Constitution was amended, Rossum said, more than three-quarters of the states had already moved to something akin to de facto direct election through preference primaries or other mechanisms that would guide legislatures in their choices.
But, according to an analysis on the centennial of the amendment by the National Constitution Center, a nonpartisan, nonprofit museum in Philadelphia, Republicans would benefit if senators were chosen by state legislatures, because they control so many more state legislative bodies at the moment.
The center’s conclusion: “Along strict party lines, the GOP would have 58 seats in the U.S. Senate, with 41 seats for the Democrats, and one seat deadlocked. That would put the Republicans within two votes of a filibuster-proof 60-vote majority. Currently, the Democrats control 53 seats in the U.S. Senate; plus, two independent senators caucus with the Democrats.”
The deeper problem, said Rossum, is that Perry’s fear has been so profoundly fulfilled and state legislatures are now so thoroughly “wards of the federal government” that it is beyond hope that anyone elected to the Senate by whatever method would see their job as anything but bringing home federal largess.
“In California, I’m no fan of Sens. Boxer or Feinstein, but I’m pretty darn certain the California state Legislature would elect worse,” Rossum said.
But, he said, “maybe Texas is different.”