Essay:Why the US Senate still represents the States post-17A

The United States Senate, as we know, consists of two senators for each state, elected by direct popular vote. This was not always the case; before the 17th Amendment (adopted 1913), they were elected by the state legislatures.

Many Americans believe this situation should be changed: Some believe that senators should be indirectly elected by State Legislatures once again, while others think each State should have a number of senators proportional to its population.

Arguments against repealing the 17th Amendment

Many proponents of 17A repeal base their opinions on the idea that "the House represents the people; the Senate represents the states".

On its own, this statement is uncontroversial – in every federal country with a bicameral legislature (With the exception of India and Canada) one house has directly-elected members assigned to the federating units based off their population, while the other represents each federating unit as such.

This representation of the federating unit as such can be accomplished in two ways: either by a house composed of delegates of the federating units' governments, or a house composed of an equal number of members for each federating unit selected independently from the federating units' governments.

However, as used by 17A repeal advocates, this statement contains three unspoken implications, all of which are incorrect:–

1. the only way to represent states as such in a federal legislature is by a house composed of delegates of the federating units' governments;
2. before the 17th Amendment, the US Senators had a mandate tied to that of the state governments, making the former delegates of the latter;
3. the fact that, after the 17th Amendment, US Senators have a mandate separate from that of the state governments, makes the US Senate a defective body unable to represent the states.

Senators were never delegates of the State governments

U.S. Senators have always had an independent mandate, even before the 17th amendment. A quick comparison with the German Bundesrat, commonly presented as an example of a house of state government delegates, reveals why:

The US Senate before the 17th amendment

The Bundesrat

Selection method: Senators were elected by the State Legislatures. It was up to each State Legislature to determine how the State's Senators were elected; however, the federal Congress had the (optional) right to prescribe standards all states must comply with: for example, in the 1860's, Congress mandated an absolute majority of votes was required to elect senators, unless a supermajority was provided by state law. Degree of State Involvement: Moderate to high. The State Legislatures had great latitude in elaborating the selection method beyond the generic requirement for election by the State Legislature; so great, in fact, that even before the passage of the 17th amendment, twelve states have already passed laws that effectively made Senate elections direct – the vote in the State Legislatures was taken on one candidate only, selected beforehand via popular vote. However, State Legislatures were not forbidden from electing a Senator from outside their membership (unless they imposed such a restriction on themselves), and Senators were outright prohibited from simultaneously serving as state legislators.

Selection method: The Minister-President (equivalent to Governor) of each State is automatically one of its Bundesrat members. The rest of the State's members are designated by the Minister-President and must simultaneously be members of the state cabinet. Degree of State Involvement: Very high. Members of the Bundesrat are simultaneously high-ranking executive officials in their respective states by definition.

Term and recall: Senators served for a six-year term. State governments had no ability to recall Senators mid-term. Degree of State Involvement: Low to nonexistent. A Senator's term was not tied to the term of the State Legislature which elected him, and State Governments could not force Senators out of office unilaterally.

Term and recall: The Minister-President is automatically a Bundesrat member as long as he holds office. The rest of the State's members have no fixed terms, and serve only as long as the Minister-President wishes. Degree of State Involvement: Very high. A Bundesrat member's term is tied to his term in the state cabinet; moreover, the Minister-President can recall the State's other Bundesrat members at any time.

Capacity for independent action: Each Senator has one individual vote in the Senate. State Governments had no ability to instruct Senators how to vote. Degree of State Involvement: Low to nonexistent. A Senator was a freely-acting agent who could do as he pleased in the course of legislative work, even if this went against the wishes of his State's Government. A State Government had no ability to compel Senators to toe its line.

Capacity for independent action: Members of the Bundesrat are simultaneously high-ranking executive officials in their respective states by definition. A state's delegation in the Bundesrat must vote unanimously – in fact, the votes are not individual votes of delegates but are common to the entire delegation, and are all cast by one delegate (the stimmführer), typically the Minister-President. Degree of State Involvement: Very high. A State's Bundesrat delegation and its Government are one and the same; it cannot be independent of itself, or go against its own wishes.

for the following reasons:

• A Senator's term was six years before the 17th amendment (and remains so today), rather than being tied to the term of the State Legislature which elected him.
• Before the 17th amendment, the State Legislatures had no power to recall Senators.
• Before the 17th amendment, the State Governments had no power to issue binding instructions to Senators.

From these reasons, we can clearly conclude that the link that existed between the State Governments and the Senators before the 17th amendment was very weak: while Senators were elected by the State Legislatures, that was all the role State Governments had regarding the State's Senators., and the Senators were free-acting agents who held their terms in their own right.

Let's compare this situation to that of the

To quote/paraphrase the Venice Commission's report on Finland's Constitution, when it considered the question submitted to it on whether direct presidential elections there should be abolished due to the massive reduction in presidential powers relative to the Prime Minister and the cabinet:

"Experience proves that it is very difficult, not to say impossible, to countermand a system of election by direct universal suffrage. It would be difficult to explain to the [American] citizens, who have elected their [Senators] since [1917], that this power is to be withdrawn from them. No one will want to take the political responsibility for such a step."

since the Senate is directly elected, each state should be represented in it proportionately to its population.

Arguments against proportional apportionment of Senators

It ignores the Senate's raison d'étre

...would make the Senate a smaller House of Representatives. There have been — and there still are — bicameral legislatures organized that way; Interwar Czechoslovakia had a Senate that was essentially a smaller Chamber of Deputies, which was one of the factors in why the current Czech Senate has a distinct electoral system and term.