Repeal the 17th Amendment to Emphasize Local Political Decisions

The 17th Amendment destroyed the link in America’s federalist system. As it stands, the states and the federal government operate in parallel. There’s no meaningful interaction between the two.

Public commenters frequently bemoan America’s chronic low voter participation rate. There are some valid points to their criticism: the average voter participates in general presidential elections, but is less likely to participate in primaries or midterms and is even less likely to participate in special elections. (53.4% of eligible voters participated in the 2018 midterms, a figure notable because participation rose for the first time in recorded history all demographic categories. By contrast, roughly 60% of eligible voters participated in the 2016 general election, a number that is lower than normal.) But midterms, to some extent, and primaries, to a much greater extent, shape general presidential elections.

Presidential elections are shaped by the political topography shaped by the years intervening elections. The rhetoric of a minority party is different than that of a majority party. Majority parties have the advantage in the policy war: it’s easier to lay claim to major policy victories and their positive downstream effects. Minority parties arguably have the advantage in the rhetoric war: the emotional freneticism of resurgent power is for many people a more powerful motivator than simply holding one’s position.

The dominant policy issues of the day also shape elections. For Republicans, the 2012 election was primarily about repealing the Affordable Care Act. In the primary debates great deal of time and internecine squabbling was dedicated to determining which candidate could best command moral authority in the campaign to overturn the law. (Republicans would realize, belatedly, that it was not Mitt Romney.)

Down ballot elections and midterm elections affect general elections, yet the discussion surrounding voter participation rates occurs in a vacuum. State participation rates are useful primarily because they are the organizational unit relevant to federal elections; the United States does not have national elections.

Yet, politics that occurs at local levels affects federal elections. Maine played an important and historical role in the 2016 election. For the first time, it split its electoral vote (Maine and Nebraska are the only states that have the ability to do this): three votes went to Hillary Clinton and one vote from Maine’s Second Congressional District went to Donald Trump.

Now, one vote may not seem like much, but given the thin margin by which Trump prevailed in the electoral college the old adage “every vote counts” holds true.

In this election Maine also had an important ballot question that likely drove voter turnout and helped Trump win that electoral vote. Question 3 would have required a background check for gun sales and transfers of ownerships between non-licensed firearms dealers. Effectively, this would have meant that anyone who wanted to give a gun as a gift or pass one between family members would have had to receive a background check. In the culture of Maine — particularly rural and largely wild Northern Maine — this was a big deal. Ads running in the state in support of Question 3 were also funded, to the tune of nearly $6 million, almost exclusively by Michael Bloomberg’s Everytown for Gun Safety. To many people in Maine, this looked like a bid by outsiders who didn’t understand the state’s culture to meddle in and usurp the state’s sovereignty over its own affairs.

Ultimately, the question failed to pass. But the counties which helped defeat the measure are interesting: because they’re also the same counties in District 2 that helped split Maine’s electoral college votes and secure a victory for Trump. Androscoggin, Aroostook, Franklin, Kennebec, Oxford, Penobscot, Somerset and Washington Counties all voted against Question 3 and voted for Trump. Of the Democratic counties, only four voted against Question 3.

Chart from Ballotpedia: https://ballotpedia.org/Maine_Background_Checks_for_Gun_Sales,_Question_3_(2016)

It’s impossible to prove, of course, because voters’ motivations are diverse, complex and ultimately not captured by numeric data, but there is a strong correlation here that suggests anger over Question 3 drove voter turnout in Northern Maine and bolstered in-state support for Trump, resulting in him receiving a historic electoral vote.

This is evidence that local issues shape national elections. So, why does the media focus on national elections and presidential races in particular? Logically, if passion about controversial local ballot questions motivates voters, these races are more important to the outcome of national elections than whatever meaningless and platitudinous drivel candidates spew in their stump speeches. Most of their sweeping reforms are unactionable anyway, as legislative power lies exclusively with Congress.

To that end, why isn’t more media attention focused on Congressional races, particularly in the midterms? The president is elected every four years, but members of Congress and one-third of the Senate are elected every midterm race. This means 468 members of the legislative body that everyday makes laws that affects the lives of Americans, or 87% of Congress, is up for election every time there’s a federal election.

Yes, fewer people vote in off-year elections and special elections. But, as Maine’s 2016 election results demonstrate, state and local issues clearly can get people out to vote. They clearly can influence federal elections. They should be at the forefront of national political discussion. But they’re not. Voter participation plummets in special elections at state and local levels when there are no federal candidates on the ballot. Why does the average voter care more about the president than the federal or local legislators whose decisions directly affect his life?

One possible answer may be related to the passage of the 17th Amendment. The direct election of Senators, which the 17th Amendment established, is notable because it bastardized the structure of America’s government. When states appointed Senators, states were represented in Congress and had a way to voice their interests at the federal level, which is important because America is, foundationally, a republic and states are constituent members of the polity, just like people.

The original language of Article I, Section 3 of the Constitution gave state legislatures the power to choose senators. And that makes members of state legislatures a heck of a lot more important.

The 17th Amendment destroyed the link in America’s federalist system. As it stands, the states and the federal government operate in parallel. There’s no meaningful interaction between the two because states have no means to lobby on behalf of their interests on the federal level. The 10th Amendment has been abrogated. In 2017, Trump and his Republican allies in Congress tried to make the case that the MacArthur Amendment made the American Healthcare Act federalist. Why? It allowed state governors to seek a waiver from several of the bill’s mandates — including the mandatory essential health benefits all plans are required to have and the stipulation that insurers cannot charge more for those with pre-existing conditions. But there was a catch — states had to demonstrate they would fund high-risk pools to ensure that the elderly and those with pre-existing conditions did not suffer economically.

This is not federalism: this is the federal government allowing states to act freely only so long as they adhered to guidelines. The 10th Amendment declares the powers not delegated to the federal government are reserved for the states and the people, respectively. It does not say that the powers not delegated to the federal government are reserved for the states and people so long as the federal government approves of the way they are exercising them. Federalism does not include a veto.

Yet, absent any ability for the states to protest against this in Congress, there’s no real way for the states to fight the federal government. The Supreme Court’s ever-expanding interpretation of the Commerce Clause almost guarantees that their ruling will bolster the federal government’s powers.

No wonder, then, federal elections have subsumed the national political debate. With the balance of powers upset on the federal level — and federal politics dominating the media landscape — citizens are not exposed to a positive example of state and local government in action.

Returning to the appointment of Senators by state legislators would not only give states their voice back in the national political dialogue, it would reassert the importance of local government. When one’s local legislators are influencing not only politics on a local level, but politics on a federal level too, they suddenly become among the most important actors in government. And when people care more about the weight of the decisions made by their state legislatures, the chances are they’ll care more about other decisions made by their state legislatures: and maybe the federal legislature as well. A better understanding of the policy making process can do nothing but empower citizens, and hopefully inspire them to be more active.

In a federalist system, politics begin at home. Elections are only one of the tools of representative government: the interest of people in daily political affairs — of engaging in dialogue with elected officials and participating in civic actions — form the bulk of the toolbox of representative government. But these tools will go rusty if the only example of government action people see revolves around the federal government, and the actions of the president in particular.

For the sake of efficacy, citizens need to understand that there is a relationship between state and federal elections: that energy in one’s community is translated on the federal stage and that local elections can influence national ones. Repealing the 17th Amendment — and directly giving states back power to influence federal decisions — is the best way to re-establish this link and show voters that what they do in their communities has broader impact.

Founder, The Subversive Scrivener. Writer. Thinker. Intransigent ideologue. Radical individualist. Talent fully developed is the highest moral good.

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