Friday, May 14, 2010

States and the Senate

In addition to advocating for a Big House (of Representatives), Bruce Bartlett is also questioning the wisdom of the 17th Amendment, the direct election of Senators. 

I was trying to start a post on the probable consequences of that reform, but I just can't seem to get over how improbable that particular reform would be.  Obviously, Constitutional amendments are hard.  Beyond that...well, it's a bit tricky.  On the one hand, there is a story we tell ourselves about a constantly expanding electorate (after beginning with a lot of restrictions, first it expands to all white men, then to women, then eventually to African Americans, then to younger voters...).  That story is as much myth as fact (we've had plenty of disenfranchisement in American history).  But I do think it's true that the kinds of indirect voting envisioned in the original Constitution for the Senate and for the president is widely seen as undemocratic, and it's very hard to imagine this particular reform succeeding.  It's hard to imagine the consequences of a reform if it's hard to imagine the changes that would have to take place in order for that reform to pass.

What I'll do instead is to comment briefly on Bartlett's claims about states, which I strongly disagree with.  Of indirect voting for Senators, Bartlett says:
The purpose was to provide the states--as states--an institutional role in the federal government. In effect, senators were to function as ambassadors from the states, which were expected to retain a large degree of sovereignty even after ratification of the Constitution, thereby ensuring that their rights would be protected in a federal system...When senators represented states as states, rather than just being super House members as they are now, they zealously protected states' rights. This term became discredited during the civil rights struggle of the 1960s as a code word for racism--allowing Southern states to resist national pressure to abolish racial segregation. But clearly the states have interests that may conflict with federal priorities on a wide variety of issues that defy easy ideological classification.
I think that's wrong on the history (states' rights was always about white Southerners and race).  More to the point, I think that it gets wrong something that is well worth getting right.  Bartlett is wrong that states have "interests,"  or at least ones that should be protected by the political system.  People and groups have rights and interests, and there is far too much diversity within states to talk about the people who live in a state as a meaningful political group.  But I don't see any reason that states should not be strong and meaningful political units, even without rights or interests of their own.  Because what one can argue did get wrongly discredited by white Southerners' bigotry over time are the values of local control and variation.  Federalism is in my view an excellent Madisonian device for avoiding the tyranny of majorities and thus strengthening the Republic, even if it's one that Madison himself didn't really like all that much.  And I like multiplying avenues for political activism, and I also like the whole laboratories of democracy thing.  Of course, those arguments apply to local governments as well as state governments.

Now, in the world of practical politics, where one stands on local control is generally determined by where one sits, and in particular partisan considerations.  Republicans support state self-determination when Democrats have unified control of the national government, and vice versa.  I don't recall reading a good recent discussion of which things ought to be controlled locally and which nationally, but I would like to see one.  I don't think that conceptualizing states as having interests, much less rights, gets us there, however.


  1. This is an actual question:
    When you set up your timeline, did you mean to say that Black men got the vote later than any woman because they were effectively denied that right until the 1960s even though the 14th and 15th amendments gave all male citizens the right to vote and it wasn't until the 19th amendment that women got that right?

  2. Off-topic: Your link to James Fallows in the sidebar is a link to an RSS feed. Moreover, it's spelled wrong.

  3. Anon --

    Yup, talking about the Voting Rights Act.



  4. I'm forever confounded by the apparently accurate belief that money controls electability. If Mr. Bartlett's proposals were adopted wouldn't that just change the locus of the spending to state legislatures in the case of the Senate and increase the the number of folks chasing the dollars, and growing the pot, when seeking election the the House of Representatives? That does not feel like much of a fix to me.

  5. I have to respectfully disagree with the notion that state governments don't have interests. Shameless plug: chapter 1 of my 2009 book (see on how state governments protect and promote their interests vis-a-vis the federal government outlines a typology of the interests of "states as states" (they're against unfunded mandates, in favor of flexibility to implement federal law in ways consistent with state priorities, etc.) and the following three chapters use policy case studies to document how state officials have successfully promoted those interests (welfare reform, No Child Left Behind, etc.). The typology of state interests is rooted in institutional theory--that institutions develop preferences and pursue them in ways that differ from just the aggregated interests of the people working in the institution. One good statement of general state-governmental interests at any given time is the National Governors' Association's policy positions, and individual states develop additional sorts of interests vis-a-vis the feds based on other factors (e.g. border state governments have interests related to illegal immigration because of the federal government's role). My own view is that senators--even if elected by state legislatures--wouldn't necessarily perceive and act on state-governmental interests more effectively than, say, the NGA lobbyists and individual states' lobbyists do now.

  6. No, Bartlett is partly right: the Senate as created by the original text of the Constitution does envisage states as being actors, discrete institutions with territorial, economic and political interests entitled to representation. Where he falls on his face is that "States' Rights" wasn't discredited by 1960s racists, but by 1860s racists--the issue of whether states were sovereign entities in a federation or inferior subdivisions beneath/parallel to a stronger central government was settled (or should have been) by the American Civil War. (Because any States' Rights people who read this apparently have trouble with the bleeding obvious: the States' Rights side conclusively lost at gunpoint, the end.)

    The more complicated questions, I think, are (a) whether states still have rights after Reconstruction and if so what are they and (b) if states do still have rights, whatever they might be, how does direct election of Senators by citizens of a state weaken those rights? After all, one might suggest that the residents of a state are just as capable of selecting their Senators as a state Governor or legislature, unless, of course, one is predisposed (as so many of the Founders were) to mistrust direct democracy in general. After all, what the Framers were really up to in creating a bicameral congress was trying to balance their preferrence for rule by educated elites with a fear that those elites would succumb to becoming tyrants, while simultaneously balancing their fears of mob rule against idealistic notions of citizen participation. (Along those lines, what may be most disingenuous about the "repeal the XVIIth" crowd is that they're not likely to just admit that they secretly think career politicians and local leaders have special qualifications for leadership not shared by the rabble.)

  7. John,

    I tried to word it carefully above, but I was also trying to avoid details, and I see where I ran afoul of your research...let's see if we can find common ground here. I definitely agree that state *governments* have interests, and I agree with your institutional approach to the behavior of state governments. But that doesn't necessarily mean that *states* have interests. It is true that groups within states have interests, and (as in your border example) the state governments will of course act to advocate for those interests, but I'm not really convinced that those are best thought of as state interests, in the way that, say, mass transit or housing would be city interests. But I'd be happy to hear your response.

  8. Seconding Bob, and adding on - this just means that whatever faction in a state which would select a Senator would have their interests served, and their bank accounts fattened.

    I'd file ending direct election of Senators with "states' rights" in general - it's a right-wing fantasy, because they figure it'd give them goodies.

  9. Eric: "The more complicated questions, I think, are (a) whether states still have rights after Reconstruction and if so what are they and (b) if states do still have rights, whatever they might be, how does direct election of Senators by citizens of a state weaken those rights"

    Good point - the 'direct election' people are really supporting the state *governments*, not the states.

  10. Yeah...we might just be getting tripped up by terminology. I use the unwieldy phrase "state-governmental interests" to mean the "corporate" preferences of the state (usually around intergovernmental finance and authority), which differ from the views of dominant interest groups within a state, and perhaps also from the views held by the citizens or the electorate of a state. We also seem to be agreeing that the notion of "interests" is more accurate than "rights".

    Indirect election of senators is also complicated by the possibility of divided government within a state. If the governor and one or both houses of the state legislature were held by different parties, the direct election of senators might look a lot less like the unitary antifederalist voice of the sovereign state government being funneled through a senator and more like a good old fashioned political power play. Plus, if all the senators are doing is serving as the messenger of the legislature, why have more than one senator? (or, let states have as many senators as they like, but give them only one vote--like under the Articles of Confederation).

  11. John,

    OK, I think we've narrowed this a lot. We agree that states don't have rights, and we agree that state governments have interests (unwieldy? I suppose, but sounds accurate to me).


    I agree that the Civil War settled the issue as a practical matter, but disagree that it changed things (other than through the 14th Amendment). I'd say, instead, that the Civil War rejected the challenge to the original Constitutional idea of the relationship of the Feds, the States, and the people. Remember, the Constitution was authored (according to the text) by We the People, not -- as in the previous gov't -- by the states.


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