The Right's Weird Campaign to End Elections for Senators

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It was quite a year for Senate campaigns. Voters in Alaska may have elected the first write-in candidate to win a Senate seat since 1954. Connecticut smacked down Linda McMahon, the onetime CEO of the World Wrestling Entertainment, and Louisianans handily re-elected a moralizing supporter of abstinence-only education who apologized for his "serious sin" after his telephone number was found in the phone records of the "D.C. Madam."

Who could possibly want to stop the fun? Supreme Court Justice Antonin Scalia, for one, and a bunch of Tea Party Republicans. They have added their voices to a curious campaign: a call to repeal the 17th Amendment, which gave the people the right to vote directly for their Senators.

In an appearance this month at a Texas law school, Justice Scalia said that he favored changing Senate selection back to how it was done before the 17th Amendment was enacted. "We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states' rights throughout the rest of the 20th century."

Mike Lee, Utah's new Republican Senator, has called passing the 17th Amendment a "mistake," and the unsuccessful Republican nominee for Senate in Colorado, Ken Buck, was for repeal before he was against it. Lee and Buck were both Tea Party–endorsed, and for many Tea Party activists, opposition to the 17th Amendment is an important article of faith.

In their view, the framers of the Constitution knew exactly what they were doing, and we should not deviate from the plan. The problem is that, while there's no denying the framers produced one of mankind's greatest creations, an immensely subtle and enduring blueprint for governing a free land, they also got some things terribly wrong — many of them around the subject of who could cast a ballot. The framers wrote slavery into the Constitution and prohibited slaves from voting. They also denied women the vote. And they allowed the states to disenfranchise poor people by imposing property qualifications.

Legislative selection of Senators was one more notable item on this list of mistakes — another way in which the founders were unwilling to trust the American people as a whole to choose their government. The founders' motives were partly to increase states' rights, as Justice Scalia said, and partly pure elitism. Letting legislators do the choosing, James Madison argued in "Federalist No. 62," had the virtue of "favoring a select appointment."

The main driving force for reforming that provision, starting in the mid-1800s, was the widespread perception that the selection of Senators was rife with corruption and special-interest politics. The case of Montana's William A. Clark caused particular outrage. In 1900, his Senate colleagues determined that he had given over $100,000 in bribes to members of the legislature that chose him. He quit when his colleagues were on the verge of voting him out.

In the progressive era, the campaign to amend the Constitution gained force. The reformers argued that direct election would clean up a corrupt institution and make it more responsive to the people. When defenders of the status quo insisted the people could not be trusted to choose their Senators, William Jennings Bryan, the populist icon, responded that "if the people of the United States have enough intelligence to choose their representatives in the State legislature . . . they have enough intelligence to choose the men who shall represent them in the United States Senate." In 1913, the 17th Amendment was adopted by a substantial margin.

The best argument against repeal can be seen any day of the week in any state capital — just take a close look at how state legislatures work. Special interests and well-heeled lobbyists call the shots, and state legislators are notorious for not seeing the bigger picture. In 2007, when New York's legislature had to choose a new state comptroller, after the incumbent was forced to resign, they made clear they would only select a fellow legislator. The legislature's unwillingness to seriously consider an outsider suggests just how undemocratic legislative selection would likely be.

As flawed as elections seem today — and as influenced as they are by special interests — legislative selection would be far worse. If repeal of the 17th Amendment would hand the Senate over to the moneyed interests and insiders, then why does anyone support it? Quite possibly for that very reason, special interests have been on a fierce campaign to increase the already outsized role they play in politics and government.

There has only been one pesky problem: the voters. Wealthy candidates, and candidates backed by wealthy people, often win, as Florida Governor-elect Rick Scott proved this year — but they also often don't. Republican (and former eBay head) Meg Whitman spent over $160 million, more than $140 million of it her own money, running for governor of California — and lost. McMahon spent considerably more in relative terms, about $97 a vote — far more than her Democratic opponent — and also lost.

Repealing the 17th Amendment would prevent the little people — in other words, the voters — from having their say. Which is exactly why it is so important to keep it.

Cohen, a lawyer who teaches at Yale Law School, is a former TIME writer and a former member of the New York Times editorial board. Case Study, his legal column for, appears every Wednesday