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Thursday, January 16, 2020

Impeachment and the Direct Election of U.S. Senators

My thanks to Prawfsblawg for permitting me this guest writing stint. As a long-time reader, I have enjoyed others’ insights and now hope to contribute a few worthwhile nuggets during the next few weeks.

What type of impeachment trial can we reasonably expect in a Senate constituted by directly elected senators? As other commentators have observed (e.g. Jonathan Adler and Carissa Byrne Hessick), Alexander Hamilton anticipated the possibility that the House process could degenerate into a partisan food fight where House members, laying all merits aside, rush to defend or rise to oppose, a President along party lines. Nonetheless, Hamilton thought the Senate, constituted as a court of impeachment, would act as "a tribunal sufficiently dignified, or sufficiently independent" to save the process from a crassly partisan fate ruled by political bosses.

The impeachment of a President entails different political calculations than impeachment of a judicial officer, and the case of presidential impeachment probably more sorely tests the procedure's limits than the relatively lower stakes of a U.S. district court judge. It's unsurprising that many judicial impeachments, say, of an Alcee Hastings, a Walter Nixon, or a Thomas Porteous, occasion little partisan fanfare.

In contrast to lower court impeachments, we are about to witness a presidential impeachment trial where the Senate majority leader has publicly pledged “total coordination” with the White House Counsel’s office to kill the Trump impeachment. And House leadership, recognizing that reality, stalled transmitting the articles and attempted to secure an agreement on how the trial should proceed in the Senate. Political prognosticators regularly consult the Cook Senate Race report to guess which senators might be peeled away from the GOP majority and which Democratic senators might feel pragmatically obliged to side with Republicans due to close races. Notwithstanding oaths, senators today have strong structural incentives to behave as partisans, disappointing Hamilton's expectation of a sufficiently dignified, sufficiently independent process.

When Hamilton wrote Federalist No. 65, he didn't know that in the late 19th century, Oregon and other states would informally adopt popular direct election of U.S. senators by straw poll popular elections or that in 1913 we would formalize and lock in direct senatorial election with the 17th Amendment. As Todd Zywicki has explained (Hein online subscription required), this change had important consequences for bicameralism by making both chambers subject to direct election.

Importantly, direct election means the relevant voting audience is no longer a body of roughly 120 state legislators, conveniently gathered in a single location for a senatorial vote. Instead, voting is done by (rationally) politically ignorant voters who only variably show up to vote. Moreover, successful direct election campaigns now must reach millions of dispersed voters through costly campaigns. And these campaigns facilitate contributors gaining significant influence over their senatorial candidates. Of course, several indirect election pathologies, including corruption, were offered to justify direct election, but the direct election remedy entailed substantial tradeoffs.

My posts, while acknowledging a range of views about the 17th Amendment and its probable effects, will question skeptically whether the benefits were really worth the changes in how the Senate today discharges its constitutional functions.

Posted by T. Samahon on January 16, 2020 at 08:00 AM in Constitutional thoughts, Current Affairs, Law and Politics | Permalink


An excellent start to what I anticipate will be a very informative series. Ingrained partisan politics in a process where it was not meant to be. And, of course, the first comment is completely biased and partisan.

Posted by: Dr. Peter Traber | Jan 26, 2020 5:08:26 AM

The unfortunate reality is that those senators pledging fealty to President Trump are quite willing to sacrifice the authority of the Senate as defined in Article to the Executive Branch.
If the sensationalist headlines associated with Lev Parnas's allegations are true, those same senators have sacrificed their dignity and their honor to maintain their diminished power.

Posted by: Paul Sonnenfeld | Jan 16, 2020 7:19:36 PM

Even Brookings has admitted that the 17th Amendment was a mistake: https://www.brookings.edu/research/the-100th-anniversary-of-the-17th-amendment-direct-election-of-senators-a-promise-unfulfilled/

Brookings is loathe to admit that any progressive policy is/was bad, so when they turn against a progressive idea you know it's gone sideways. Long story short, the 20th century progressives got played for fools by the railroads and political machines.

Posted by: thegreatdisappointment | Jan 16, 2020 4:07:40 PM

A good post. I add that the trend in the past decade or two, of U.S. Senators using their Senate seat as a launch pad for Presidential campaigns, is an offshoot and intensification of this development, as well as the increasing contentiousness of judicial confirmation hearings. Had George W. Bush been impeached in, let's say, January 2007, it's hard to imagine Senator John McCain voting to convict or Senator Barack Obama voting not guilty given looming presidential campaigns.

Posted by: RComing | Jan 16, 2020 3:40:17 PM

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