Richard Reinsch (00:18):

Hello, and welcome to Liberty Law Talk. I’m Richard Reinsch. Today we’re talking with Professor Todd Zywicki, welcoming him back to Liberty Law Talk, a frequent guest, to discuss recent calls for reforms to the Senate in particular and to the Congress and what might restore that body to more vigor and greater political-institutional health. Todd Zywicki, a frequent guest on Liberty Law Talk, when last he was on we discussed the cartel of higher education in conjunction with a book Todd had just written with Neal McCluskey. Todd is an expert in bankruptcy law and consumer credit, among other specialties. He’s also an economist, he teaches, I mentioned at the Scalia Law School. And he’s also a Senior Fellow at the Cato Institute. Todd, you are also a star, I noted, at the Social Science Research Network. You are in the top 10% of most downloaded scholars on the Social Science Research Network, so congratulations.

Todd Zywicki (01:17):

Thank you.

Richard Reinsch (01:18):

Nice to have your work sought after. I was thinking about, Ben Sasse had this op-ed “Make The Senate Great Again,” that was in The Wall Street Journal earlier in September. And he listed a number of reforms to make the Senate work better. Sasse himself a scholar, PhD in history, I think from Yale. His first speech in the Senate was about the sort of underwhelming nature of Congress in its current operations. And he listed a number of reforms, some of which I thought were ho-hum, some seemed interesting. One, take cameras out of the Senate, out of committee hearings, abolish standing committees, I would actually argue the committee should be strengthened if you want to restore the vigor of the body. Pack the floor, meaning require attendance at debates so there’s a full house. Live together in dorms, and also sunset all agencies and departments. Give them a year left to operate and force the Senate to begin making laws again. So he understands the administrative branch dynamic there. Then also, and you’ve written on this, several law review pieces and debates and shorter pieces, “repeal the 17th Amendment” would be key. And he makes the point that it would allow the states to reenter national debate as states again. And that would sort of diffuse maybe the ongoing just ideology that percolates through the Senate. So what do you make of any of those proposals and then we’ll also focus on the 17th Amendment?

Todd Zywicki (02:47):

Well, more generally, all of them raise the same question, Richard, which is one of the things that Sasse is basically [inaudible 00:02:54] at with a lot of these things is that the process of electioneering has come to dominate the process of governing with respect to the Senate. And the great irony of that is that the original Senate was elected by state legislatures, and that was changed in 1913 with the 17th Amendment that moved to direct election of Senators. And I know we’re going to talk about this in detail, but in many ways what Sasse in coming back to rests on that foundation which is that the framers clearly had a design in mind for the Senate, which it would be fundamentally different from the House.

They hoped, and thought, it would be a body that would not be driven by electioneering. It would be driven by basically governing. Which is that the House was seen as the place where politicians would posture and do the things that politicians do in order to get votes and scramble for votes. But that the Senate, due to its longer term and the manner in which is was elected, would be different. And a lot of these things he talks about, like cameras in the room, the way in which the committee system is used to basically deliver benefits to special interests, all those sorts of things, in many ways are by-product of that same fundamental dynamic which is the adoption of direct election of Senators by the people in partisan elections is fundamentally incompatible, fundamentally contradicts, the idea that the framers had in mind for the Senate. And I think, in many ways, that’s what all these things are is a manifestation of that problem. And it’s not clear… We’ll talk about sort of what went awry and that sort of thing, but I think he’s right with a lot of that. And in many ways he’s trying to treat the symptoms of that and not just the causes.

Richard Reinsch (04:51):

Yeah. He also calls for extending the term to twelve years from six years, and prohibiting any political fund raising while the Senate is in session. So I think that fits your analysis, more treating symptoms. The thinking here, too, it seems to me that a fundamental problem as well, and James Buckley has a book on this, that he wants to amend the Constitution to prohibit the Congress from being able to just make sort of general grants to states. That it would have to be constitutionally tied. Appropriations would have to be a part of the delegated powers. And so it seems like he’s trying to limit, effectively, what they could do, another way of going at this. Thinking about the 17th Amendment, so you mentioned 1913. It was ratified, it provided for direct election of Senators. What’s the significance of that. I mean many people I think would say… Obviously there’s a democratic point there, but why would you argue that that remade the senatorial body?

Todd Zywicki (05:58):

Well, 1913 is, in many ways, the pivotal moment in American Constitutional history, in sort of the dawning of the Progressive Era and everything we’ve seen since. Which is, two things happened in 1913, which was not just the ratification of the 17th Amendment, but also the ratification of the 16th Amendment, providing for the income tax. So in many ways what we saw with those two back to back was that the 16th Amendment unleashed the taxing power of the government. And the 17th Amendment unleashed the spending power of the government and, in particular, the ability of the national government to easily provide to take those new funds and redistribute them to special interest groups in particular. And so if you look at it from that lens, essentially at that point the New Deal, which comes along obviously 25 or so years later, as kind of a mop-up operation, once you’ve basically set that structure in place for a more robust national government in terms of taxing and spending power.

one thing that’s often forgotten when we talk about the original Senate, was the idea of bicameralism. And the idea of having two bodies composed by different groups of constituents was designed to limit the power of interest groups.

We can go, and I think we will go into detail about the specific impact of the 17th Amendment, but what I think is significant and relates to Buckley’s comments that you noted, was that when it comes to Federalism specifically, the framers saw the election of senators by state legislature to essentially both be necessary and sufficient condition for preserving constitutional federalism. And the magic expression here is Federalist 51, which is where everything comes back to Federalist 51. Which is Madison’s view that in order to preserve the Constitution, the interests of the man must be aligned with the Constitutional rights of the place. The interests of the man must be aligned with the Constitutional rights of the place. Which is to say that if you want federalism to be preserved as a Constitutional value, the view of the framers was you have to make the self interest, the political self interest of the representative be aligned with promoting that Constitutional value. What Senators care about is being Senators.

And being a politician is a competitive business. And so, what you have to do is basically make sure that if you’re a Senator that you’re responding to your constituents. And if your constituents are state legislatures and state legislators, that’s a very different constituency from the general public. And that’s what the framers understood and that’s what the framers were trying to do. Which, to some extent, was done imperfectly, because, as we all know, some kind of mechanisms of direct election arose during the nineteenth century. But I still think it had an impact, even with some of the mechanisms of direct election that arose. I think, when I look at the historical record, it looked like a lot of these things we talk about, unfunded mandates and a lot of the real incursions of the federal government on the states, just don’t seem to be there. And I don’t think they would be there to the same extent even if the prior 17th Amendment Senate was an imperfect vessel for preserving federalism.

Richard Reinsch (09:17):

Auxiliary precautions in Federalist 51. That’s a phrase that I think sticks with me as I think about problems in our current federal government. So the House, obviously, two years directly tied to the people. The Senate would have been tied, was tied, to state legislatures appointing the two senators to represent their state. And the auxiliary precaution meaning two different bodies elect those two branches. And that being crucial because it’s not just a majoritarian, two bodies representing majoritarian interests. Could you talk more about that, what was the significance there?

Todd Zywicki (10:00):

Yeah. And the framers, obviously it was kind of a genius structure, right? Which is, two houses elected by different constituencies for different terms. We also have a president who’s going to be indirectly elected. That didn’t last very long. We still have the vestige of the electoral college, but we do not actually have electors. And we had judges who would basically be appointed for life, right? And the idea was, was this machine in which these different hubs selecting the members of the federal government by different mechanisms would bring certain incentives to what they were doing in that the system as a whole would be more than just the individual pieces.

If you look at the Senate specifically, there were two basic goals here. Which the first was kind of recreate a House of Lords. Which is, as I mentioned, the idea was the House would be the place in which people did politics, retail politics. The qualifications were younger, the terms were shorter, and they expected that there would be direct accountability on the House. The Senate was obviously modeled, to some extent, after the House of Lords in Britain. And the idea was that the Senate would be the place for people who are accomplished in life. Qualifications were that they had to be older, 30 rather than 25. And the idea would be that very distinguished people would be selected to serve in the Senate. Not only career politicians, is what’s ended up happening, but accomplished lawyers, business people, military heroes, people of stature, who were turned off by the idea of House and all the electioneering in the House. And they would be chosen for character, judgment, and prudence, and that sort of thing. Which is I think also one of the reasons why they gave to the Senate special responsibilities like with respect to treaties and the like that they didn’t give to the House.

That idea of the Senate as a House of Lords was, to some extent, true. Because it did allow people like Daniel Webster to move in and out of the government. A lot of those people we know during the 19th century would kind of rotate in and out of the government, kind of returning when they were needed. Whereas one of the big things that’s happened is now the Senate is basically just full of career politicians. Which has changed the dynamics, I think, of the Senate itself. The second important thing about the Senate that you allude to is the structural piece. Which is, it’s supposed to be two things. One, preserve federalism, as we talked about a little bit. But the second one is to bring this notion of bicameralism that you mentioned.

And bicameralism is the idea of having two houses that are designed to pass laws in different way. So as to, as the framers clearly understood, mitigate the power of faction, what we would call special interests today. And the idea is that through bicameralism interest groups would have more difficulty influencing the government, and the public interest would prevail by having two bodies selected by different groups. And that’s one thing that’s often forgotten when we talk about the original Senate, was the idea of bicameralism. And the idea of having two bodies composed by different groups of constituents was designed to limit the power of interest groups. And now, when you make the two bodies more or less identical, it eliminates some of those brakes and some of those checks on interest group factionalism as Madison called it.

Richard Reinsch (13:22):

Now I know, just thinking through all this right now, it’s been a part of center right conservative thinking in this country. And it’s now at a fever pitch with anger at elites or distrust of elites. Thinking about this system where state legislatures would appoint people to represent their state in the original design, couldn’t that also lead, though, to a system of elites bargaining with elites and distributing spoils? As opposed to say a more popular check that we currently have? I mean, I guess, I’m sort of thinking how would it work now that the ideology is really switched? Of course, progressive thinking has switched where states now very much want to be a part of receiving rents from the federal government. I think what, I would say most states, 20% of their… What they receive from the federal government probably equals 20% of their annual budget, if not more. What do you think about that?

Todd Zywicki (14:16):

That’s exactly the criticism that’s been expressed. And it’s not just from conservatives now. That was exactly the argument that was made beginning in the late 19th century when people started beating the drums for direct election, the muckraking newspapers, the populist newspapers, deeming the Senate of the late 19th century and early 20th century, the millionaire’s club. And, of course, if you go back and read the Federalist Papers the Senate was one of the things that the anti-Federalist’s found most obnoxious for precisely this reason.

Was that what the framers saw as a feature, this sort of House of Lords, the anti-Federalists saw as a bug, right? And they genuinely were concerned about this notion that the long terms and lack of political accountability would make the Senate into this elite group. But again, if we go back to Federalist 51, what does Madison say is the challenge? If angels were to govern men, no government would be necessary. But if we’ve got men running the government we have this trade off. In the first place the government must be powerful enough to control the governed.

And in second place it must be obliged to control itself. Which is, there’s this tension inherent in our Constitution between limiting the power of faction and limiting the power of democracy. Which is the point about the government being able to control the governed, which is why they thought in terms of an indirect elected president, an indirect elected Senate for long terms, and, of course, an independent judiciary that would be protected from the accountability of the democratic process and all that. But at the same time, the concern about elitism, which is to say that if you create independence to resist factionalism you run the risk that the governors become the faction unto themselves and basically end up running the government for themselves. And, of course, the exact same criticism you hear about the Senate is what conservatives say about the judiciary. Which is that the unaccountable, unelected judiciary basically imposes their own views on society without any direct accountability.

The framers answer was that we want to have all of that, right? That’s why they thought of all of those four groups, four different bodies, interacting in some way that would bring different perspectives and that sort of thing. But you raise exactly the right point, which is a concern, it’s a concern that was present… And I have to say one funny story was a few years ago after I wrote my article in the National Review on the 17th Amendment. A blogger for the American Constitution Society said, “Well, Zywicki just hates democracy, and he wants to get rid of democracy.” And so I wrote back, and I said, “Oh, so you’re in favor of direct election of judges?” And that was the end of the debate, he never responded, right? Which is the last…, But it’s the same logic. Either you’re for direct, you’re for election of judges or you’re against it, right? But basically that’s the argument the framers were putting on the table.

Richard Reinsch (17:30):

When I asked that question, too, and I was thinking of Michael Greve’s The Upside-Down Constitution, which is an interesting book for a number of reasons. One of which is the way he talks about competitive federalism as opposed, to say, the sharing of power. But the ways in which Federalism is supposed to create this baseline and the states have to compete against it. and that’s been endlessly corrupted in the 20th century where states now use the federal government as a way to prevent competition amongst themselves. But they haven’t totally, they haven’t been completely successful yet. Greve describes other systems, Argentina, talks about the German system, whereby elites are able to use federalism to just endlessly divide spoils.

And he says in our systems that hasn’t happened in that way yet because of this, the representational principle of the federal government can actually touch individuals and represent individuals. I guess that’s why I thought about that. And it seems what’s ultimately being preserved by the U.S. Senate, and this is why Progressives hate it as a body. And many times we hear this common refrain, why should Wyoming cancel California? There’s 200,000 people in Wyoming or something, and California has millions. And also California is just way more culturally important so far than Wyoming. But the point being though, the Senate, each state is still equal in the Senate. And to me I would argue that’s ultimately what matters. What do you say to that?

Todd Zywicki (19:00):

It does seem to matter, but whether it’s what ultimately matters I’m not sure. I mean, obviously, that has some effect, and in many ways that tradition lives on in terms of that decentralization effect. Let me say first, I think that Greve’s book is pretty much the most brilliant book I’ve ever read on the Constitution.

urban machines in the cities wanted direct election because they knew that they could influence elections more, as opposed to having to go through state legislators, which were tilted before redistricting in favor of rural interests, before Baker v. Carr and those cases.

Richard Reinsch (19:18):

It really is.

Todd Zywicki (19:19):

Most of us, by the time we reach 40 or so we rarely fundamentally change our minds about things. Greve’s book fundamentally changed the way I think about the Constitution, from sort of a more pure state’s rights view to a more inter-state view, and sort of understanding the balance between the federal and state governments. So I think it’s really important. And what I will say is I think that the way in which the Senate originally operated, or operates throughout the 19th century, was in many ways more consistent with Greve’s view, right? Which is to say that when you look at the history of the 19th century what you see is, by and large, the federal government did what the federal government was supposed to do, and the state government did what the state government was supposed to do. Which is, the states provided most of the services as was expected.

And the federal government did the things that they’re basically expected to do. Which is they did interstate improvements, they made it possible to create networks, preserving the interstate common market. And in times of crisis, the government would expand to pass a bankruptcy law when they needed bankruptcy law, to wage war when they needed war. But what also happened is during the 19th century we don’t really see this ratchet effect that Robert Higgs points out, where the federal government expands to meet a crisis, it would then to retrench to back where it was. The first time we really see a ratchet effect in American history is after World War I. And maybe it was an ideological view, maybe it was inevitable. But I find it hard to believe that it was purely a coincidence that the ratchet effect first appears during World War I.

And then during that exact same period, in the teens and into the twenties, which where we first start to see the first real expansion of the national government in terms of delivering rent seeking type legislation and redistributing wealth to discreet groups. Which in the government, and, of course, that time, blows the lid off as you move into the New Deal. And a lot of what the growth of the federal government has been since that period is primarily in wealth redistribution systems. For entitlements, subsidies, and rent seeking type things, using the tax code as a vehicle for redistributing wealth. Which, now may have just been inevitable, because of technology and ideological change.

But I think that changing the manner in which the Senate was composed created more of the conditions for this cartel federalism that Greve talks about than was otherwise the case. Maybe it hasn’t gone all the way for the reasons you talk about, about each state having equal representation, but I think it did increase the propensity for that to happen. The growth of the federal government, in particular the growth of the federal government in terms of providing rent seeking or special interest type legislation.

Richard Reinsch (22:20):

When you look, and you know the history very well leading up to the ratification, so you know the debates and everything that were going on, a question that I have, why would the states give up that power? That, to me, is an interesting question.

Todd Zywicki (22:33):

Yeah, that’s always the interesting question. And there’s some fascinating history here that my former colleague David Schleicher has gone into, that has really made me rethink a lot of this. Which is to say that I think that the way in which the structure of the Congress, Article I, was originally designed, with an indirectly elected Senate, still has a lot of virtues and had a lot of virtues. But my enthusiasm for that particular mechanism has been tempered a bit over time by reading David’s work. Which is, what David says, is that during the 19th century, especially under the influence of Jackson, that earlier in American history than might be appreciate, parties basically overwhelmed the Madisonian structure. And we see that now, right?

We see that in things like the farcical impeachment processes we’ve seen both for Trump and Clinton, which turned out to be partisan in their voting. I won’t say they were equally partisan in their initiation. But that process, and a lot of these processes, are received during the Noel Canning case where the Democrats in the Senate actually endorse the power of the President to call that, to basically declare them as being in recess, right? Which you’ve kind of reached the Madisonian nightmare of being overwhelmed in many ways by partisan political influences. And what Schleicher says is that happened during the 19th century more than I, at least, necessarily appreciated. Which is that parties overwhelmed the structural influences, and that over time, the Senate elections placed a pretty strong influence over state legislative elections. That state legislative elections more and more became a proxy for Senate elections. So his argument is that, to some extent, state legislatures may have been frustrated by the fact that the national elections, rather than being indirect they basically became vehicles, right, electors for their senator. And so I think that probably explains some of it, which is that this separation didn’t necessarily work that well.

I think some of it also deals with the fact that interest groups, national interest groups, a lot of interest groups wanted the 17th Amendment. They wanted direct election. National interest groups who wanted more regulation of interstate commerce in order to cartelize their industries, like the railroads. Labor unions wanted it. Urban machines were strong components, ironically, right? Because people claimed that the Progressives were against urban machines.

But urban machines in the cities wanted direct election because they knew that they could influence elections more, as opposed to having to go through state legislators, which were tilted before redistricting in favor of rural interests, before Baker v. Carr and those cases. So I think it was probably a combination of interest group influences pushing for direct election to be able to influence the power of the federal government to give them rents. And perhaps some of this frustration that Schleicher points out among the state politicians at having their futures tied, to some extent, to senators who they didn’t control. Or they couldn’t control their election very well.

Richard Reinsch (25:55):

It’s funny, I was thinking, you mentioned Baker v. Carr. I was thinking even state legislatures, in a sense, kind of had a feature like the Senate, in the sense of rural interests were able to counterbalance large cities. If you think about Illinois, if you walk into the Illinois legislature the Chicago delegation must surely overwhelm everything that goes on there.

Todd Zywicki (26:16):

Yeah.

Richard Reinsch (26:17):

Maybe to the detriment of the state. I certainly noticed that when I worked in the state legislature before going to law school.

Todd Zywicki (26:23):

Sure.

Richard Reinsch (26:24):

There’s also a call now, even to abolish the Senate. Not a call, but you see people, they’ll make these, or to change it’s composition in some form. Or to add states. And, of course, that gets back into partisan politics as well. That point of the parties overwhelming the process is well taken. And it does make it seem as if separation of powers can’t do its full work. Thinking about this question, the original role of the Senate and it being lost, how many states were actually holding popular, or at least allowing sort of a popular canvas to exist, and then the legislature would actually have to choose from that, or would commit to choose from that?

Todd Zywicki (27:14):

Yeah, by the time of the 17th amendment, I think a majority of states had some degree of popular election. Which is that they would either have candidate chosen, been party primaries, and then the state legislature would choose their senators. Or, what they have is something called the Oregon plan, which was a system in which people running for state legislatures could have a statement appear on the ballot where they’d be required for a statement to appear on a ballot. Where they would say, yes, I will endorse the people’s vote, or, no, I will not endorse the people’s vote. And essentially what they then would havewhat would be legally a straw poll of voters. Where they would not create a binding vote for one candidate or the other, but that they would create basically a non-binding vote that state legislators would agree to endorse. And I think some states may have just required the state legislatures to do that.

One bogus criticism of the Senate prior to the 17th Amendment was the argument, which the facts are true but the causal relationship is false, which prior to the 17th Amendment there were periods in which states had vacancies in the Senate, that they failed to select a Senator. And this would often be the case in which the two legislatures of the state were controlled by different parties or by different factions, right? So think about, during that period, the Western states in which you had essentially a three party system. Where you had Populist Republicans as well as traditional Republicans and Democrats.

So it was the case that some states sometimes would fail to select a senator. I think that’s a largely a sideshow for two reasons. Which is the first reason in that most states did that once, or maybe twice, and didn’t do it anymore. So most states learned their lesson and they fixed the process. The more important reason I think was that there was a federal law passed, I think it was in the 1860’s, that required state legislators to select senators by a majority vote. They were not allowed to select by a plurality vote. And, as we know now, a lot of Senate elections, the person who’s chosen is selected by a plurality vote. Pretty much any time you have a robust third party you have somebody selected who gets less than 50% of the vote. So that deadlocks problem could have been eliminated simply by eliminating that federal law. And so that’s something that’s often criticized about the 17th Amendment, which is beside the point.

Richard Reinsch (29:57):

The corruption point is made as well. That seems interesting, and you point that out in one of your pieces. Or you make that point several times, that corruption was the allegation, wide spread in state legislatures, over who would they pick potentially. But, of course, you increase dramatically money in politics, political partisanship, when you go to the direct elections. And I guess, in a way, the corruption point blends into a progressive point. Which was this idea of getting a clean politics in a sense of there is, politics is politics, and wherever you try to eliminate it, it just goes somewhere else.

Todd Zywicki (30:34):

Yeah, that’s right. This is one, I laughed when you were saying it. Because I was just having a little kind of back and forth on Facebook the other day with a very prominent conservative person who was talking about, oh, the corrupt Senate prior to the 17th Amendment, criticizing Sasse’s view. And the great irony here is well, first, corruption wasn’t that common. There were certainly cases of corruption then, there are cases of corruption now. But you put your finger exactly on the point, Richard, which is it’s kind of comical for somebody to say that they passed the 17th Amendment to get rid of special interests influence over the Senate. As if we don’t have any special interests influences over the Senate nowadays when they have to raise tens of millions of dollars in order to run an election.

Maybe it doesn’t involve just repealing the 17th Amendment. Maybe it’s trying to bring back a lot of the virtues that the original Senate was trying to bring. Which is to create a more deliberative, more insulated body, that’s more responsive to structural concerns of states, strengthen the process of bicameralism and the like.

So I think that’s kind of a sideshow or sort of a unicorns and fairies approach to politics to say that we’ve gotten rid of special interest influence in this fashion. We’ve probably changed the types of interest groups. As I said, for example, the current system has probably made urban machines more powerful but also changes the composition of the interest groups that tend to be able to have economies of scale to lobby directly to the federal government. It’s probably increased the influence of urban oriented interest groups relative to rural groups, or even, we talked about earlier. But it’s kind of silly I think to say the 17th Amendment eliminated special interest influence in government.

Richard Reinsch (32:06):

Yeah. Thinking here, also, just the notion, the Progressive notion, this is a Progressive amendment, is another point made about this as well, the Progressive ideology being… But of course other Progressive ideas didn’t make it into the Constitution through Amendment, like having referendums or a recall or things like that. And part of a lot of state constitutions now feature those devices. So we get the direct election of senators being a Progressive advance, direct election I guess being the point over all they wanted to make there. Has that resulted, though, in better state representation? Or it seems as we’ve been discussing, what it’s resulted in is something like more ideology or party polarization in many ways.

Todd Zywicki (32:52):

That’s why I take an interest in this Richard. I think we’re kidding ourselves, or I’m kidding myself, if thinking that somehow or another we’re going to actually repeal the 17th Amendment. Democracy seems to be democracy, which is to say that once you give people the power it’s unlikely that they’re going to give it back. Why I think that it’s so useful to talk about and think about the 17th Amendment in the original Senate for this reason of… And this is where I put my professor hat on. Which is what I want people to think about and talk about is what is the Constitution, what should it look like, and what were they trying to accomplish?

The framers, as Franklin famously said, created a Republic if you can keep it. They did not create a democracy. They created a system where the purpose of government was preserve individual liberty and to restrict the power of factions. Meaning the power of organized interest groups to commandeer the power of the government to enrich themselves at the expense of the general public. Those were the goals. It wasn’t to create a democracy. Which I think the lesson we can learn from the history of the Senate and the history of the 17th Amendment is why does structure matter?

Why does it matter, the incentives we create for various political actors in this trade off between independence and accountability to do their job? How does different aspects of the government get together? And I think this kind of, in many ways, bring us back full circle to where we started with Ben Sasse’s proposition. And your point a moment ago, where we talk about people wanting to abolish the Senate. And I think what Sasse is really asking us to think about is what is the Senate’s value proposition? If all the Senate is, is a smaller number of people than the House of Representatives, but has the same degree of partisan conflict and sort of goofiness that we see in the House, why have a Senate? And I think what Sasse is basically saying to his fellow senators as much as anybody is, look guys, our days are numbered. If we’re going to basically just be like the House then our days are numbered. We’re not proving our value here to the people, we’re just a more elite version of the House.

And I think what he’s trying to push at with all these other reforms, of making the body more deliberative, making the body less partisan, making the body less responsive to special interests, is I think what he’s basically trying to say. Let’s think about what, and maybe also then trying to increase the influence of the states. And I think what his real point is, is let’s think about, if we’re going to have a Senate, what should its functions be? And maybe it doesn’t involve just repealing the 17th Amendment. Maybe it’s trying to bring back a lot of the virtues that the original Senate was trying to bring. Which is to create a more deliberative, more insulated body, that’s more responsive to structural concerns of states, strengthen the process of bicameralism and the like. And I think that’s maybe the bigger picture here is what studying this and thinking about this history can tell us about Constitutional structure and what is necessary to preserve individual liberty and restrict the power of interest groups and factions.

Richard Reinsch (36:16):

Just think about being a Senator. And you know that your origination point is your state legislature and could also be your ending point. And how would you act if that were true, versus, how do you act now? Are you this sort of hyper political animal who wants to not be shaped by the institution but to take Yuval Levin’s arguments here. You’re not going to be shaped by the institution, you’re going to stand on top of the institution, and use it to promote your interests or your ideology or whatever your agenda might be. You’re probably more likely to work within the system. I mean I would think, because you’re appealing back to people who themselves have a certain stature in their states and are watching you.

Todd Zywicki (36:59):

It’s a great point. And Vikram Amar wrote an article many years ago that’s related to your point, Richard. And I alluded to this earlier, which is one of the big changes since the 17th Amendment is that the Senate has, in fact, become a body for career politicians. Which is that, prior to the 17th Amendment, where states, they couldn’t recall senators, but it was quite common that there would be more rotation in office. Senators might rotate through the Executive Branch, or rotate in and out of the private sector over time. And that perspective has been lost, right?

The Senate now is a body of career politicians, and he documents this fact that there is less rotation in office. And there’s something important in that. Maybe it’s good, maybe it’s bad. But it definitely changes what you do, I think, if, as you said, maybe you go back to being a state politician after two terms. Maybe you go back to being a private citizen after two terms. Or maybe you rotate through the Executive Branch and then you go back to the Senate. That gives you another perspective, right? Where nowadays, as for example, we just learned in Alabama from Senator and Attorney General Sessions. Nowadays basically if you leave the Senate there’s a good chance you’re done, right? If you join the Executive Branch you’re pretty much done at that point and you’re not likely to go back into elected politics basically because some other incumbent will have taken your seat. And maybe that’s good, maybe that’s bad, but it’s definitely a change from what the normal is during a period of indirect election.

Richard Reinsch (38:32):

And maybe we can end on this. It’s where we started, in thinking about the composition of the government. If you think about, say, you had said the House of Lords. Or maybe thinking France, the old, the three estates before the revolution. They all had represented, distinct groups, within their countries. And, of course, the problem in America is there is no elite, landed elite. There’s no established interest in that capacity. There’s no established church. So what are you, in fact, representing? That’s sort of, I think, a question. And so when you’re putting together the government you’ve got to think about who it’s representing, how it’s representing them, what it’s going to be? In addition to what it’s going to be doing, how it’s going to be limited? And answering that questions I think is the House, the people, Senate, the states. The President is not going to be elected by a majority vote, but is supposed, the original idea being a deliberation in the Electoral College. And those are the key points, it seems to me, that we’ve occluded, or attempted to bury, in the current arrangement.

Todd Zywicki (39:36):

I think that’s right. And this is the suggested, that the framers had the right idea in my view, when they originally structured the Senate. Which is, what they understood that they were trying to do is create a body that would provide a bicameral check that would be slower moving, that would be less accountable to the people, and would be a vehicle for representing the states as states. And I think what we ended up learning during the 19th century was even though that was the ends that they had in mind, the means that they chose were imperfect. And in particular, a general question that we all remember from our high school civics class, which is the framers did not count on the rise of parties, and the way in which parties would change this whole dynamic. And, in many ways, change the dynamic involving the Senate.

And so I think one of the lessons we can learn from this is, and when you look at the debates on the 17th Amendment, it’s pretty clear at the time, in my view, they did not believe that they were essentially killing Federalism. They essentially thought that Federalism was so woven into the fabric of American life that they could tinker with this one system of accountability in the way in which Senators were selected and Senators would keep on going the same way. And I think what they found out was that they forgot the lesson of the framers. So I think one of the things I take away from this is I think the way the Senate was originally chosen turned out to be an imperfect vehicle for what the framers were trying to accomplish.

But what that leads me to think is well, if Federalism is still a value, if bicameralism is still a value, what other changes should we have? For example, should the courts be more aggressive in enforcing Federalism? And this is a point that Scalia, among others, basically said. Was that the framers did not build in a lot of other ways enforcing Federalism because they assumed the Senate would protect Federalism. But if we rip that means out, that notion of the Senate as a vehicle for protecting Federalism, for reasons unrelated to wanting to change the fundamental division of power between the federal and state governments. Maybe this idea the courts have largely deferred to the political process with respect to Federalism, maybe we need to reconsider that as well, right? Maybe we need to consider other types of proposals that people have talked about. Like easier ways for states to be able to propose things to Congress, for example. Or ways for states to over-rule, as a group, incursions by the federal government, a lot of these sorts of things that were automatically done when states could elect their state legislatures, but now are not really vehicles for them to protect themselves within the overall structure.

Richard Reinsch (42:20):

Well, Todd, thank you so much for discussing your scholarship and thinking on the original intent of the Senate, and now the 17th Amendment. Appreciate it so much.

Todd Zywicki (42:31):

Well, thank you Richard, and thanks for this stimulating discussion.