Tennessee’s Frank Niceley proposed getting rid of the 17th amendment and the House Speaker called such bills coming from the “fringe”. But here’s what and why the founding fathers made this part of the Constitution like they did. The House was voted by the people and the Senate by the State legislators for the reasons explained below:

The Founding Fathers knew that in order to ratify a Constitution and preserve the fledgling United States, it was essential that the states have representation in the new Federal government. The legislative branch would be split; the people represented by the directly elected members of the House of Representatives, and each state represented by two officials appointed by the state legislatures. In the new system, the House would represent the people and the Senate would represent the states. Without a federalist system of divided, enumerated, and checked powers between the federal and state governments, no union would be possible – the states, wary of potentially losing their sovereignty to an all-powerful government, would back out, and the world’s most free and prosperous nation would never have become a reality.

According to the Founders’ vision, so long as the U.S. senator served the state’s interest, the senator would remain in power. This way, the upper house could focus on their business, not encumbered by the elections of their lower house counterparts.

But in the early 20th Century, Progressives argued that the federalist arrangement in place fostered corruption and excessive special interests in the Senate. Ignoring the original intent of the Constitution and under the cover of “democracy” (we are in fact a constitutional republic, not a democracy), the federal government quickly ratified the 17th Amendment, establishing the direct election of U.S. senators. States no longer had any representation in Washington, and the amendment paved the way for even more corruption and special interest influence.

Today, we have a Senate that regularly passes legislation contrary to the interests of the states, thanks to the moral hazard introduced by the 17th Amendment. Perhaps most residents in your state opposes national healthcare, but both of your senators voted in favor. Why not? They can’t be recalled at moment’s notice by the state legislative branch, like they could 100 years ago. All they have to do is get enough votes from their citizens – or perhaps enough voter fraud – and they are safe for six years. Missouri may not want Obamacare and Wyoming may not want tough new gun control laws, but thanks to the 17th Amendment, the state’s hands are tied.

What if the 17th Amendment was repealed?

Currently, there are 52 Democrats, 46 Republicans, and two Independents, both of whom caucus with the Democrats. But in state legislative branches there are 51% Republicans and only 46% Democrats – nearly an exact opposite of the party makeup of the U.S. Senate. And that doesn’t include the non-partisan unicameral Nebraska state legislature; it isn’t a stretch to suggest that a state that virtually always sends Republicans to Washington would somehow depart from the trend.

Below is a map displaying the party makeup of the 50 states and how they are represented in the U.S. Senate. The varying shades of red and blue signify the % of majority control, either Republican (red), or Democrat (blue). Click here or on the image to see the full-size version.

Current makeup of U.S. Senate

Now, another map – this time red represents a Republican delegation, blue Democrat (or Democrat/Independent as both Independent senators caucus with the Democrats), and purple for a split D/R delegation. Click here or on the image to see the full-size version.

Current makeup of U.S. Senate

It is likely in a state like Hawaii – with over 90% Democrat majority control of the state houses – would have two Democrat U.S. senators. But few states have such a strong majority control. If the 17th Amendment were to be magically repealed today, returning selection to the states, it is highly probable that states would appoint senators according to party makeup of the state legislatures. A state with more Democrats would be more likely to appoint more Democrats and vise-versa. A state that was more balanced would be forced to compromise and would be more likely to have a split delegation. It is unlikely that South Dakota, a state whose voters elected nearly 80% Republicans, would only appoint one Republican senator. And it is also unlikely that a state like Michigan, where nearly two out of every three state legislators are Republican, would somehow appoint both senators from the minority party.

My theory is that if the 17th Amendment were repealed, states with 67% majority control of the state legislature or more would likely appoint two senators from the majority party, and states with less than 67% majority control would have insufficient leverage and be forced to moderate, nominating one member from each party. Non-partisan Nebraska, with all Republican officials, will stay Republican in this experiment, and both Independent senators are not a factor since they already caucus with the Democrats anyways.

Below is my proposed results, considering the makeup of the U.S. Senate and all 50 state legislatures in January 2013. Click here or on the image to see the full-size version.

Proposed makeup of U.S. Senate

According to the hypothesis, Republicans would gain an astonishing 12 seats from Democrats, a strong majority at 58 versus the Democrats’ 40. There are many factors that are not accounted for in this study, such as voter fraud, the varying platform and history of each politician, media coverage, etc. But regardless of the varying and impossible-to-predict factors in a system with millions of voters, the overall premise remains: that the stronger majority control a state legislature has, the more likely it is that the state will appoint a member of the majority party. Even if only half of the seats predicted actually change hands, the Republicans would still gain control of the Senate – 52 seats to the Democrats’ 46.

Corruption must be checked and the Senate should do the bidding of the state – not the special interests. But a constitutional republic is a rule of laws, not a rule of men, as is a democracy. The Founding Fathers – who had a far greater intelligence than today’s politician – dedicated one half of the legislative branch to the states for good reason. By repealing the 17th Amendment, we would restore the federalist system that kept Americans free and prosperous.

Chris Carter
Director, The Victory Institute