This is the ninth installment of Constitutional Accountability Center’s new series, ‘Strange Brew: The Constitution According to the Tea Party,’ exploring the Tea Party’s erroneous claims about the Constitution’s text and history.  Click here to view previous posts from this series.
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by Elizabeth Wydra, Chief Counsel, Constitutional Accountability Center

Somewhat surprisingly, even in the curious world of the Tea Party, several Tea Party Senate candidates have been asking people to vote for them precisely because they want to take away the people’s right to vote for them.  In other words, they are running on a platform that includes a call to repeal the 17th Amendment to the Constitution, which shifted the selection of U.S. Senators from the state legislatures to direct election by voters.   Such a repeal proposal is foolhardy—and not just because it banks on the rather ridiculous proposition that voters will turn out to vote to support taking away their right to vote.

It seems unlikely that voters will go for it.  “We the People” have passed six amendments expanding the right to vote, and the entire thrust of our constitutional history is toward expanding our democratic process, not taking choices away from voters.  But the movement to repeal the 17th Amendment is serious enough that the New York Times devoted an editorial piece to the issue, noting:
Allowing Americans to choose their own senators seems so obvious that it is hard to remember that the nation’s founders didn’t really trust voters with the job. The people were given the right to elect House members. But senators were supposed to be a check on popular rowdiness and factionalism. They were appointed by state legislatures, filled with men of property and stature.
Under the original Constitution, U.S. Senators were chosen not by the people, but by state legislators. Article 1, Section 3 of the Constitution provided that “the Senate of the United States shall be composed of two Senators from each state, chosen by the legislature thereof, for six years; and each Senator shall have one vote.” The 17th Amendment, ratified in 1913, was part of a wave of progressive constitutional reforms that sought to make the Constitution, and our nation, more democratic.  It gave Americans the right to vote directly for their Senators, thereby strengthening the link between citizens and the federal government.  (Whether Senators have been more or less able to serve as a check on “popular rowdiness” since adoption of the 17th Amendment is debatable, but considering that the Tea Party has the rowdiest party on the block right now, it is surprising that they would advocate returning to a more restrained, aristocratic vision of the Senate.)

Proponents of repealing the 17th Amendment argue that returning the selection of U.S. Senators to state legislatures would enhance states’ rights and increase the role of the states in the federal government.  But the Constitution’s strongest protection of federalism lies in the structure of the Senate, which explicitly builds in representation of the states themselves and secures two votes in the Senate for each state.  Those structural protections remain.

It is also worth remembering why the 17th Amendment was ratified in the first place: to prevent corporate corruption in the political process and place the responsibility of electing U.S. Senators directly in the voters’ hands.  The selection of U.S. Senators by state legislatures was viewed as particularly susceptible to corporate corruption because special interests could pay off state lawmakers to vote a certain way in Senate contests.  Supporters of direct election of Senators by the people believed that it would be more difficult for corporate interests to “bribe” a large group of individual voters than a small group of identifiable legislators.

The concern over corporate influence in elections was more pressing after the Civil War and the growth of industry in the United States.  As political leader William Jennings Bryan explained late in the 19th Century, the problem of corporate political influence had grown since the time of the Founding, and required new regulation.  In arguing for direct election of senators, he said:
We all recognize that there is a reason for the election of Senators by a direct vote today that did not exist at the time the constitution was adopted. We know that today great corporations exist in our States, and that these great corporations, different from what they used to be one hundred years ago, are able to compass the election of their tools and their agents through the instrumentality of Legislatures, as they could not if Senators were elected directly by the people.
26 Cong Rec. 7775 (1894).

President Theodore Roosevelt also directly answered the Tea Party’s point about states’ rights, explaining in his 1905 message to Congress that “corporate organizations are now so large” that “supervision can only be effectively exercised by a sovereign whose jurisdiction is coextensive with the field of work of the corporations – that is by the National Government.”

Corporations have grown vastly since Roosevelt spoke these words, and the problem of big-money political influence in senatorial and other election contests is just as pressing, if not more pressing, now than when the 17th Amendment was ratified.  The Supreme Court’s ruling this past January in Citizens United v. FEC has only exacerbated the problem by putting corporate political activities on equal footing with individual Americans’ civic participation and giving the green light to corporations to overwhelm the political process with general treasury funds.  Repealing the 17th Amendment and allowing special interests to target state legislators in order to buy the U.S. Senator of their choice would only make matters worse.