The United States Senate is an undemocratic institution. Just do the math: Progressive California Senator Kamala Harris was elected in 2016 with 7,542,753 votes. Yet her vote on issues such as health-care reform counts for no more than that of conservative Wyoming Senator Mike Enzi, who was elected in 2014 with 121,554 votes.
This is an absurd imbalance. In fact, the only thing that would make it more absurd would be if voters were removed from the equation altogether.
Say “hello” to the American Legislative Exchange Council, or ALEC, the corporate-funded project to impose a top-down right-wing agenda on the states. ALEC is considering whether to adopt a new piece of “model legislation” that proposes to do away with an elected Senate.
The idea of reversing 104 years of representative democracy and returning to the bad old days when senators were chosen via backroom deals between wealthy campaign donors, corporate lobbyists, and crooked legislators, is not new. The John Birch Society peddled the proposal decades ago. But with the rise of the “Tea Party” movement, the notion moved into the conservative mainstream.
Then–Texas Governor Rick Perry argued in 2012 that the direct election of senators “took the states out of the process.” Several Republican senators apparently agree, with Utah Senator Mike Lee referring to the 17th Amendment as “a mistake” and Arizona Senator Jeff Flake saying, “I think it’s better as it reinforces the notion of federalism to have senators appointed by state legislatures.” What was once a fringe fantasy is being taken ever more seriously by conservative strategists.
Last year, ALEC published an article by a so-called “subject matter expert” arguing that the popular election of senators is “disenfranchising the States.” The article made an old-school states’ rights argument for taking the power to choose senators away from the people and giving it to the politicians who sit in state legislatures.
ALEC has yet to formally embrace the theory, but last month it circulated a “draft resolution recommending constitutional amendment restoring election of u.s. senators to the legislatures of the sovereign states.” That resolution is among the items expected to be considered at this week’s annual meeting of the influential group.
Section 1. The seventeenth article of amendment to the Constitution of the United States is hereby repealed.
Section 2. Senators shall be elected exclusively by the State legislature, upon a majority vote of legislators present and voting in a joint session. If a vacancy shall exist for more than one hundred-eighty days, then the Governor shall appoint the Senator to serve the remainder of the vacant term. This procedure may not be modified by state initiative or referendum.
Section 3. State legislatures may issue instructions to, or recall, their Senators at any time.
If this project is approved by ALEC members, the resolution will become part of ALEC’s agenda for the states—advanced by conservative legislators who have established a pattern of rubber-stamping ALEC’s “model legislation.” If successful, they will reverse one of the great strides toward democracy in American history: the 1913 decision to end the corrupt practice of letting state legislators barter off Senate seats in backroom deals with campaign donors and lobbyists.
How so? Republicans currently hold 52 US Senate seats. Democrats hold 46, while two independents (Vermont’s Bernie Sanders and Maine’s Angus King) caucus with the minority. That 52-48 divide does not accurately reflect the sentiments of great mass of Americans. In 2016, for instance, 51,496,682 Americans cast ballots for Democratic Senate candidates (including a pair of Democrats running in California) while 40,402,790 cast Republican ballots, yet the Republicans took 22 seats to 12 for the Democrats.
If state legislatures were to begin naming senators, the imbalance in the upper chamber would almost certainly grow. Republicans currently control 32 state legislatures (including the titularly nonpartisan single chamber in Nebraska) and Democrat have clear control in 12 states. In six other states, power is divided between the parties—although the divisions are complicated and potentially in flux because of shifting coalitions and special elections to fill vacancies.
Let’s focus on the 32 legislatures where Republicans have control: If Republicans were to maintain their current advantage, and if they were empowered to replace all sitting Democratic senators at the end of their current terms, they could shape a Senate with at least 64 Republican members. Democrats who currently represent traditional swing states, such as Michigan’s Debbie Stabenow, Missouri’s Claire McCaskill, New Hampshire’s Jeanne Shaheen and Maggie Hassan, and Wisconsin’s Tammy Baldwin are just some of the roughly 20 Democrats who would be vulnerable to replacement not by the voters but by the politicians. A handful of Republican, such as Nevada’s Dean Heller, might also be vulnerable. But that prospect of a 64-36 split is the Senate is genuine, and it is hardly unreasonable to suggest the possibility of a 67-33 split that would allow for one-party approval of a constitutional amendment.
That’s just a rough measure of the changes that could occur. Legislatures controlled by right-wing Republicans could reject relatively moderate Republicans. Legislatures controlled by Republicans or Democrats could reject independents such as Sanders and King. And campaign contributors such as the Koch brothers and their network of right-wing billionaires, which already has tremendous influence in statehouses, could actually get more senators who are to their liking.
Overturning the 17th Amendment would not be easy. For one thing, there is no evidence that Americans favor the change. But as Republican legislators move closer to the numbers they need to demand a “convention of the states” to enact a “Balanced Budget Amendment” that would constrain the federal government by effectively dictating budgeting priorities, it is wise to be wary of those who seek to constrain democracy itself.