Yes, I totally agree with you, this's all a problem. Or, perhaps, several problems put together. How to fix it is another question, but we can all agree with what you've stated today: it's a problem!
No! This is fascinating! I've never seen this before! I've certainly been into Congress.gov looking at failed proposals from time to time, but obviously this is much easier, especially for old ones. Handy!
It's remarkable to me that they've been filing "repeal the 17th" amendments for 90 years, but not once proposed a replacement.
I think there's an amendment proposal in that database that addresses the deadlock aspect; it's from the 1930s and of course requires the 17th amendment be repealed.
Ok, I can't find anything from the 1930s, but I did find this, proposed by Mark Levin:
SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be chosen by their state legislatures as prescribed by Article 1.
SECTION 2: This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
SECTION 3: When vacancies occur in the representation of any State in the Senate for more than ninety days the governor of the State shall appoint an individual to fill the vacancy for the remainder of the term.
SECTION 4: Senator may be removed from office by a two-thirds vote of the state legislature.
Oh, I think it's bad - as you say, it'd restore all the old problems that led to the 17th Amendment! Which IMO would be at least as bad as the current problems.
I don't think it's *crazy* to think that the deadlocks problem could be resolved by a gubernatorial appointments fallback. I don't think it's true, but it is tempting in its simplicity, especially for constitutional text. (My idea is not simple.)
Regarding your footnote about Shields defeating Stonewall Jackson, worth noting is that there is some dispute about how much credit he should get for First Kernstown--while the plan was his, he was actually wounded the previous day by a shell fragment, and battlefield command went to Nathan Kimball.
Also of note is that the day of the battle, March 23, was a Sunday, and according to legend Jackson took the defeat as a sign from God and never again launched an attack on a Sunday afterwards. It's not really true, but it's a charming story.
Count me among those "pro-filibuster moderates." However, I think there are more than a "small handful" of such Republicans in the Senate. During his first term, Pres. Trump repeatedly called for the Senate Republican majority to end the legislative filibuster. He was repeatedly rebuffed.
Then-Senate Majority Leader McConnell gets the brunt of the blame (or praise) for this action, but the legislative filibuster was broadly supported by Republican members. And the legislative filibuster continues to have support. Just after the 2024 election, Senate Republicans (including some of Pres. Trump's allies) preemptively announced that they would not weaken the filibuster.
I do not see the current use of the filibuster as abusive. The filibuster effectively imposes a supermajority requirement to pass most major legislation. This is a good thing! Slim, temporary, and partisan majorities in Congress should not be able to radically overhaul our nation's laws. It is good that such consequential changes require broad, enduring, and bipartisan consensus.
I think the 1964 Civil Rights Act is a key example. You mention filibuster abuses during this period, and I am not well enough versed in the history to dispute you. Nonetheless, the Civil Rights Act ultimately passed the Senate with a 73-27 vote, comfortably above the two-thirds threshold for cloture required at the time. (The cloture vote itself was 71-29.)
While the Civil Rights Act was a highly contentious issue at the time, the issue has (more or less) been put to bed. To my knowledge, there have been no serious efforts to repeal the Civil Rights Act since its passage. Conversely, in a universe without the filibuster, a much different Civil Rights Act would have been passed, and I presume we would still be fighting about it today.
(I don't mean to imply that there is no dispute about the application of the Civil Rights Act itself. Notably, after 50 years of splits in the circuit courts, the Supreme Court recently had to step in to clarify that, yes, the protections of the Civil Rights Act apply the same to everyone equally.)
In this way, I see the filibuster as reducing political conflict, not raising it. Imagine if the fundamental character of our country's laws was determined every two years by a handful of House races in purple districts and Senate races in purple states. Note, this problem would be exacerbated by gelding the veto, as you suggest elsewhere. Decreasing the threshold for one party to exercise unilateral control increases the probability this happens.
Conversely, I do not think there is much value in the "cooling off" function. Suppose the Senate Democratic majority eliminated the filibuster at the start of Pres. Biden's term by lowering the threshold for cloture to a simple majority. I do not think the requisite 30 hours of "debate" would have dissuaded Senate Democrats from passing their key legislative priorities. Some examples:
• H.R. 1 (a hodgepodge of progressive priorities on "voting rights," campaign finance, etc.)
• H.R. 4 (federal takeover of elections)
• H.R. 5 (dramatic expansion of the scope of the Civil Rights Act)
• H.R. 6 (retroactive legalization of Pres. Obama's DACA program)
• H.R. 7 (criminalization of the "gender pay gap" as disparate-impact type discrimination)
• H.R. 51 (DC admitted as a state)
• H.R. 127 (federal licensing and public database of gun owners; bans ammo above .50 cal)
• H.R. 1522 (Puerto Rico admitted as a state)
• H.R. 1976 (socialized medicine vis a vis "Medicare for All")
Instead, Senate Democrats actually had to negotiate with Republicans on important issues. And it turns out, Republicans and Democrats were able to compromise on some controversial topics.
• No federal takeover of elections, but sensible reforms to the Electoral Count Act after Jan 6.
• No public database of gun owners, but some improvements to background checks, funding for mental health, funding for school safety, and guns taken away from domestic abusers.
• No inclusion of LGBT in the Civil Rights Act, but national recognition of same-sex marriages.
• No Green New Deal, but investment in U.S. infrastructure and semiconductor manufacturing.
Conversely, I think we see the negative consequences of the filibuster's absence in presidential appointments to the executive branch and the judiciary. Senate Democrats wanted to confirm radical appointments by Pres. Obama, Republicans were opposed, and Democrats nuked that part of the filibuster. As an exercise, come up with your five worst nominees confirmed during the Trump and Biden admins. Would they have gotten through a 60-vote cloture? Probably not.
I think we also see the negative consequences of the filibuster's absence in reconciliation bills, but this comment is already too long. I will leave it as a question to the reader whether they think it is positive or negative that one party can increase the deficit by trillions of dollars when, by luck of the election, that party happens to win the presidency and both chambers of Congress.
When people talk about eliminating the filibuster for some important purpose, I am reminded of the line you quoted from "A Man for All Seasons": "Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?" Or as Sen. McConnell said, "You’ll regret this, and you may regret this a lot sooner than you think."
Finally, as a minor and unrelated point, Congressional Republicans have "conferences" not "caucuses." E.g., I would write, "Republicans are restrained only by the small handful of pro-filibuster moderates left in their conference." I presume this distinction once meant something.
Interestingly, I *did* come across a footnote while researching this that drew a 19th-century distinction between "caucuses" and "conferences." I haven't seen this elsewhere, and the context isn't quite the same so it could be wrong or I might be misunderstanding it, but:
> Formally, both parties’ “joint caucuses” met preceding the legislative balloting for Senate, to nominate the parties’ choices to fill the vacancy. A strong distinction was made between a caucus of party members and a conference. At a caucus, anyone in attendance was bound to abide by the majority vote of the caucus. Anyone not in attendance was not bound. Absences were noted by the leaders and by the press, which attended and reported the deliberations and the roll call vote(s) on the nomination. Anyone who absented himself from the caucus without “good cause” was considered an insurgent or a bolter. Because of the heavy implications of meeting in caucus, it was often difficult to call caucuses whenever joint convention balloting became protracted. Therefore, party leaders would often call conferences, which were allowed to take votes on whether to support particular candidates, but without binding participants.
(from "Party Control and Legislator Loyalty in Senate Elections Before the Adoption of the 17th Amendment" by Charles Stewart)
How this evolved into today's "conferences" and "caucuses" is beyond me (as you correctly point out, I'm sloppy about the modern distinction), but I thought it was interesting anyway.
The only thing I was particularly inclined to disagree with you about was the future prospects of the legislative filibuster in a future Republican senate. I had been under the impression that the filibuster hung together in, say, the 115th Congress because Sens. Murkowski, Collins, McCain, and Graham (a member of the Gang of 14, despite his recent reinvention) supported it; that 2 or 3 others quietly supported it (Thune, Cassidy, maybe Alexander? Romney later of course); that McConnell backed it both to keep from exposing divisions in his caucus and because he genuinely thought it was long-term beneficial; and that the rest of the caucus toed McConnell's line because McConnell had earned their trust (and he sure had; the GOP public never respected the way he richly deserved).
But then I realized that my theory of the case was based on vibes, not facts; that you are *much* better positioned to know the truth than I am; and that I will therefore defer to your view of the Senate Republican Conference!
As to the rest, I share your terror of a Democratic majority unloosed from the filibuster. Your parade of horribles largely lines up with my own from a few years ago: https://decivitate.jamesjheaney.com/p/midterms-anything-could-happen). I do think that the use of the filibuster is an abuse, because it perverts the purpose and meaning of "ongoing debate." On the other hand, I think there's a better-than-plausible case to be made that the current abuse of the filibuster is a necessary adaptation to the breakdown of the Senate and its growing polarization. A Senate that isn't a cooling saucer and which has lost the character of consensus-building needs a blunt consensus-forcing mechanism, or the United States collapses into the mad partisan fits of parliamentary democracy (sorry, readers from the Commonwealth!). The filibuster fills that role, at least for now.
On the other hand, I also think it's a tactical error, here in 2025, for the Republicans to continue to protect the filibuster. (It was a closer call when Joe Manchin and Krysten Sinema were still in the Senate, and, as you describe, the gamble of counting on them did pay off.)
I think it was demonstrably a tactical error for the Gang of 14 to make their deal in 2005: Democrats got to keep Miguel Estrada and block a variety of Bush judges, and what the GOP got in exchange was... really very little, because Reid blew up the deal and shoved through all his nuttiest noms as soon as it became even mildly inconvenient for him. (I fumed about this a dozen years ago here, and mocked the Gang of 14 rather unkindly: https://ropersanchor.jamesjheaney.com/2013/11/22/no-republicans-have-not-blocked-82-obama-nominees/ ) In principle, I'm inclined to support the filibuster for all the reasons you mention, at least in our current Senate. In practice, with one party bent on destroying it, I think the filibuster is dead and that the GOP should reap the rewards of destroying it and passing a bunch of legislation before the other side inevitably does it to us. We will regret doing this -- McConnell's warning is exactly right -- but I think we will regret even more *not* doing it.
At root, though, I think the filibuster is serving this role because the Senate is broken. If we fix the Senate at the source, I think... well, I hope... that we would find the filibuster simply wouldn't be an issue anymore. (I suppose I am tipping my hand here that my proposal in a couple of weeks will be oriented toward increasing the proportion of moderates in the Senate overall.)
Thanks for the thoughtful comment! Always a pleasure to hear from you.
Interesting point on caucuses v. conferences! Yes, it is also my vague understanding that the distinction originally concerned binding v. non-binding internal votes. However, I do not remember where I read that, and the House and Senate Democratic caucuses don't seem to use that function today, so I am left confused.
You make a fair point: My comment glosses over some of the internal conference divisions over the filibuster during the first Trump admin. Moreover, the level of support for the filibuster varied by member, and surely involved both principled and practical motivations. I agree that Leader McConnell was the keystone.
I'll just point out that Republican Sens. Collins, Hatch, McCain, Murkowski, Wicker, Graham, Strange, Burr, Moran, Blunt, Rubio, Boozman, Tillis, Capito, Thune, Cassidy, Flake, Heller, Grassley, Portman, Alexander, Kennedy, Cochran, Sasse, Young, Roberts, Isakson, and Lee all signed a bipartisan letter to preserve the filibuster.
That's 28 members by my count, and represents a lower bound for Republican support. I suspect that others also supported the filibuster but did not want to pick a public fight with Pres. Trump. While many of these members have left the Senate, I think recent experiences have convinced Republicans to keep the filibuster.
Is this a game-theoretically optimal strategy? Left as an exercise for the reader.
Concerning whether the current use of the filibuster abusive, I would be happy with a constitutional amendment that puts the supermajority requirement on the bill's final passage, rather than on ending debate. I'm OK with things coming to a vote.
Maybe I've read too much Jim Buchanan, but I think that supermajority requirements are beneficial to protect minority rights and interests. You could "fix" the Senate, and I think I'd still want a supermajority requirement. Mob rule by deliberative moderates is still mob rule. Maybe you'll convince me otherwise in the next installment!
Likewise, thanks for your thoughtful response. Always appreciate chatting!
I think making the U.S. Senate function like the German Bundesrat would fix the problems. James, have you looked at how the Bundesrat works? It seems to work well to present the voices of the different German states in the German parliament.
The Bundesrat seems to be similar to the Continental Congresses and the Confederation Congress with each state (Land) represented by a delegation appointed by that state, with a set number of votes cast as a bloc by each delegation. The delegations are not free agents like US Senators and can be replaced at will.
Another thing to keep in mind about the Bundesrat is that it doesn't have an absolute veto over all legislation; it only has such a veto when the legislation impinges on the interests of the Lander. (Which has been expansively interpreted by the courts to be much larger than envisioned by the framers of the Basic Law.) It also can't veto the budget, I think.
(Its formula for apportioning votes to the various Lander also leaves much to be desired.)
It's also, as I recall, legally independent from the Bundestag and thus isn't properly comparable to an upper house in other legislative frameworks.
It is worth noting that Germany (like many other continental European systems) has a very party-focused electoral system (by design, rather than by accident). For instance, at the federal level, the electoral system was changed to prevent overhang and leveling seats by instead providing that if a party elected more local candidates in a Länd than their share of the party vote entitled them to have, the worst-performing winning local candidates would not receive a seat in the Bundestag, in effect eliminating local representation. (Twenty-three such candidates were not seated in the 21st Bundestag as a result.) Overhang and leveling seats hadn't been needed until 2005, when 16 were added, but then there were 24 in 2009, 33 in 2013, 111 in 2017 and 137 in 2021. (From a look, it seems that a major factor in this was the rise of the AfD, who first received representation in 2017, and have strong regional support in the former East Germany, disproportionate to their support nationwide.)
I know I have talked up Baden-Württemberg's system in the past (though now it is their former system, as in 2022 they changed to a two-vote closed-list system as seen in most other places that use MMP), and I still think it is good, but one detail I had failed to notice is that it was a one-vote system, not a two-vote system; you voted not for a local candidate and separately for a party but rather, in effect, only for a party, and the local candidate elected was that of whichever party received the most votes in the constituency. So there was no opportunity to vote for a local candidate who might buck their party on issues important to you (but not to the point where the party kicked them out), or for an independent candidate, while voting for a different party that was more in alignment with your values. That system is too party-focused for me, at least. A two-vote system that uses the pre-2022 Baden-Württemberg system for forming the list, however, would likely be a reform I'd support.
Another quirk of German electoral law is the exception from the electoral threshold (5%, abnormally high by MMP standards) for parties representing recognised national minorities (in Germany, these are Danes, Frisians, Sinti and Roma, and Sorbs); the South Schleswig Voters' Association (representing Danes and Frisians) elected a member to the 20th and 21st Bundestag and has had a presence in the Landtag of Schleswig-Holstein continuously since 1958. I do not know what aspects of German law preclude political games being played with the process of determining exactly what groups get recognised as such. (I am sure a mutual acquaintance of ours would insist that German political culture is simply inherently resistant to such chicanery without offering any actual legal basis for it.)
You really sold me on that years ago. It's still my preferred proportional system because of it. I keep assuming it's eventually going to come up in this series! Putting a "former" in front of it is gonna be a tough blow.
It's also mine, at least, as I said, if structured as a two-vote system instead of a one-vote system as they did it. I wish I knew the rationale for the change, but the only sources I can find are in German. (They also lowered the voting age to 16 while they were at it.)
At least the system has (more or less) been used in a real-world polity, so unlike some other proposals I've seen there's an example to point to of how well it worked (or didn't).
The "cooling saucer" story might not be real, but one that almost certainly is real is the description of the Senate of Canada as "ha[ving] the sober second-thought":
(What may be apocryphal about this is that Sir John A. Macdonald's use of the term "sober" was due to his being a notorious drunkard; he reportedly often showed up to the House completely sloshed, especially when in opposition in the mid-1870s when turfed out of power following the Pacific Scandal. Another possibly apocryphal tale is that Macdonald told Thomas D'Arcy McGee that since the Government could not have two drunkards, McGee would have to give up alcohol.)
While the Senate of Canada has near co-equal power with the House on paper (s. 53 of the Constitution Act, 1867 is one of the few limits), any attempt to actually exercise this power would result in popular demand for some sort of broad reform. Senators know full well that their role is to check the worst democratic excesses of the House, not to defeat legislation outright (this does not stop poison-pill amendments), and that stepping beyond this without very good reason will lead to calls for abolition (one major party supports this for self-serving reasons), or democratic legitimisation, generally through direct election (another major party supports this for self-serving reasons; the third major party tends to support the status quo for self-serving reasons) or maybe, if they are very lucky, only something like the Parliament Act 1911 (which almost nobody advocates for because, one, nobody knows about it, two, a comparatively modest reform of that sort would not sate the desire for democracy these days, and three, it doesn't serve the interests of any major partisan faction).
Consequently they play a delicate balancing act by attempting to ensure that any amendments that make it into legislation that actually passes are ones that are good and useful and generally not controversial, and that they don't actually block the House's legislation without extremely good reason. (To the point where the government will sometimes use the fact that the Senate has a legally separate legislative process to slip in provisions that they should have included in the version presented to the Commons but were precluded by procedural rules from adding later once this became apparent.)
(The monarch plays a similar balancing act, staying out of the way of democratic processes right up until only monarchical intervention can keep said processes functioning normally, with the possibility of monarchical intervention serving to keep political actors from straying outside the bounds of said processes. I think it no mistake that the model of parliamentary constitutional monarchy, in some form, has produced as many stable, more or less liberal democracies as it has while republican models, especially those founded on the US model, have proved far more brittle. One need only look at the history of democratic governance in Latin America to see this, though admittedly there are other factors at play there as well.)
As for the fast-moving democratic paroxysms to which parliamentary systems are sometimes subject, keep in mind that partisan electoral politics is a check on that! In majoritarian electoral systems, any legislation that is too odious to the opposition will be repealed once they take power (unless you stay in power long enough that it just becomes an accepted part of life and too much else is built around it to make it possible to repeal cleanly); this does have the effect sometimes observed that the first year or two of a new government is spent repealing all the previous government's most odious legislation rather than doing anything substantively new. In proportional systems, since most governments will be coalitions of some sort, it is often the case that each successive coalition will have some overlap with the previous (New Zealand may be an exception to this for assorted reasons), and consequently cannot fully repudiate the previous government's policies, which in turn means that any policy a government wishes to enact cannot be wholly opposed by whoever happens to be in opposition at the time, lest it be impossible to form a coalition following the next election. If the electorate agrees that the "parade of horribles" is truly horrible, then whoever takes power next will be able to move just as quickly to repeal it all as the enacting government was able to move to implement it.
I am, of course, interested to see whatever you do propose, but my inclination (which is, of course, influenced by the constitutional tradition I learned) is that these sorts of implicit checks serve to protect counter-democratic institutions much better than explicit, entrenched textual provisions ever could. (For instance, outside of a Corwin Amendment-style provision banning any amendment that would restore direct election of Senators, I am very curious to see how you propose to keep the People from, at least at some point, demanding that the democratic reins be handed back to them--or convincing them to give it up in the first place.)
Even if you return the Senate to a body appointed in some fashion by the state gvernments, you still would need to address and limit the influence of political parties. Otherwise, state legislature elections (or state governors if that's who does the appointing) just become proxies for US Senate selections like Lincoln-Douglas.
Kudos to you for recounting that history, however. I had assumed that the proxy system was more common and existed before 1858.
As my own contribution I propose a slight rewrite of the "Levin Amendment" presented by Epikouros as follows:
SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be chosen by their state legislatures as prescribed by Article 1, except that a two-thirds vote of each House of the Legislature shall be necessary for a choice.
Mandating a two-thirds vote should ensure that each Senator is acceptable to both political parties and (hopefully) reduce partisanship in the Senate. I could see that states might adopt a convention that its 2 Senators would be of different parties, but each party would still have to take part in the election of each Senator.
I'm sorry; the Democrats currently have a two-thirds majority in the New York and California state legislatures, as do the Republicans in Florida and Oklahoma. Some states are more partisanly-captured than you think.
I'm going to spoil the next installment a bit by posting, in toto, Footnote 7 from my current draft, illustrating your point in detail:
7. You’d be surprised by how many states have effectively single-party rule. Or maybe you wouldn’t be. Since I live in a closely divided state (our figure on this chart is 50.7%D/49.3%R), I am really taken aback that there are so many places in this great nation where a single party controls more than two-thirds of the seats. If the Seventeenth Amendment had succeeded in fully disconnecting state politics from federal, wouldn’t we expect to see more states that are red or blue at the federal level but more moderate internally? It seems that, even without the prompting of the Senate election, the People are still voting for state legislators based on the letter next to their name.
Alabama: 75%R
Arkansas: 83%R
California: 75%D
Connecticut: 70%D
Delaware: 71%D
Florida: 68%R
Hawaii: 88%D
Idaho: 83%R
Illinois: 68%D
Indiana: 80%R
Iowa: 68%R
Kansas: 78%R
Kentucky: 82%R
Louisiana: 72%R
Maryland: 72%D
Massachusetts: 88%D
Mississippi: 69%R
Missouri: 71%R
Nebraska: 67%R
New Hampshire: 67%R
North Dakota: 89%R
Ohio: 73%R
Oklahoma: 81%R
Rhode Island: 87%D
South Carolina: 74%R
South Dakota: 89%R
Tennessee: 82%R
Utah: 76%R
West Virginia: 94%R
Wyoming: 94%R
***
Now, that said, I don't think this is the death knell for Phil's idea. If a state party has achieved one-party control over a state to the extent that it has two-thirds of its state senate seats, they probably *should* get to dictate the U.S. Senator for that state.
There's no risk of proxy election there, because it's a one-party state; everybody knows in advance which party is going to elect the Senator regardless of who wins the swing districts, everybody knows the out-party has no hope even in a wave, so people can still vote their consciences on state issues without fear of affecting the U.S. Senate outcome.
A two-thirds requirement like what Phil suggests would still have the desired effect in swing states (which may be adequate) and (combined with certain other measures and safeguards) could still force compromise between moderate and extreme factions of the party even in one-party states, which probably still helps a little.
The biggest problem I foresee with Phil's amendment is that, under such strong constraints, the party that controls the governor's mansion will always intentionally force deadlock in order to give the governor the power to appoint a partisan extremist without compromise. Even if parties don't *deliberately* do that, a requirement that high would likely mean lots of deadlocks, which would be resolved by a partisan governor.
"It seems that, even without the prompting of the Senate election, the People are still voting for state legislators based on the letter next to their name."
You are correct, and this is the outcome I would expect as an economist.
Political parties are brands, and brands communicate information. A candidate's party affiliation tells me (with moderate confidence) their general views on taxes, healthcare, climate, immigration, gun control, etc.
Since everyone has limited time and attention, and it is extraordinarily unlikely that any individual vote sways the election, the strategy of "pull the lever for the candidates of the major party you agree with" makes sense.
This strategy will give correlated results across state and federal elections. One's political preferences at the state level generally mirror one's political preferences at the federal level. Hence, we see straight-ticket voting.
This strategy becomes even more sensible with high levels of polarization. Suppose a voter researches their party's senatorial candidate and finds that she is a total squish on (e.g.) abortion, however defined. Is there *any* chance that the opposing major party's candidate will be any better on abortion? Not in 2025. So, you vote for the squish and hope it works out.
(P.S., by "makes sense," I mean that the straight-ticket strategy is rational given one's preferences and constraints. Of course, rational may not be moral.)
I was certainly aware that some states were heavily partisan, but that many is dismaying. But in my defense, my proposal requires *both* houses of the legislature have a 2/3rd vote. At least in Ohio, the House has just shy of that number of Republicans. There may be other outliers,
The hold-put to the governor's choice is a real problem. My thought was thaty a gubernatorial appointment would last only until the next session of Congress -- 2 years or less-- but I wasn't sure how to write that up in Constitutional language.
Well, I have some Thoughts on defanging the gubernatorial deadlock threat by forcing the state legislature to reach a result much faster than 90 days -- even if the Constitution has to *beat* them into a true consensus candidate with a statistical hack. We'll have to see what you think about said Thoughts in a couple weeks.
"However, simply repealing it won’t do. Repeal the Seventeenth Amendment without replacement, and you just invite back all the ills that led to it in the first place. If all you do is put legislative election back into the Constitution, do you think you’d even achieve the goal of getting legislatures to elect their senators? Of course not! Half the states would immediately adopt something like the Oregon Plan, and, without good solutions to the problems that drove us there in the first place, the other half would soon follow."
This may be pedantic, but this is not what would happen. This is because to repeal the 17th Amendment, you'd need congress to pass it, and then 3/4 of state legislatures to approve the repeal. If 3/4 of state legislatures voted to repeal it, then you are not going to see 1/2 of them immediately bring it back via law.
I suppose, if the amendment is instead done by constitutional convention (the other way to get amendments, which has never been done before), then the state legislatures wouldn't be the ones necessarily approving it. However, as the constitutional convention still requires 2/3 of the state legislatures to call it, and then ratified by 3/4 of the conventions. In such a case, perhaps it could be going against the wishes of the state legislatures (perhaps the conventions ended up proposing things the state legislatures didn't originally want, and the conventions, which are not the legislatures themselves, ignored the state legislatures), but that would seem implausible, and in any event if there was enough general support to do all of this, 1/2 of states wouldn't be reverting to something else as soon as the Seventeenth Amendment were passed.
We would, however, very quickly see the sort of "proxy voting" that was a problem, where people vote for their legislators primarily based on the Senate candidates. The parties could theoretically TRY to go back to not choosing them until after the legislative elections in order to thwart this, but that would end about as soon as one of the parties realized that by letting the voters know their candidate ahead of time (and possibly giving the voters a role in choosing them in a primary), they'd be at an advantage, forcing the other party to follow suit.
The 21st Amendment was proposed by Congress and ratified by state conventions. This was done because state legislators were worried about being challenged by well-organised pro-prohibition activists should they vote to ratify even as general public sentiment had turned against prohibition. Thus Congress specified that state ratifying conventions be the method used.
Even then, that amendment makes it a violation of the federal Constitution to break state laws concerning transport and import of alcohol (but doesn't give Congress any enforcement powers about that). I don't know how many states kept prohibition laws on the books, though. It was probably just a provision to say "no this doesn't mean individual states also can't ban alcohol, this is returning jurisdiction over the question to them".
This site also goes into House apportionment, but it has a related article about the post-17th Amendment making states act as large electoral districts with Senators: https://thirty-thousand.org/blog/the-17th-amendment/
From note 5: ‘Many people describe a story as “possibly apocryphal” or “probably apocryphal.” This is, properly speaking, an oxymoron.’
Since we're being etymologically pedantic … historically speaking, an oxymoron something that is seemingly contradictory at a surface level, but the combination actually makes sense, sometimes in a deep or profound way, and sometimes to make a rhetorical point. Examples are ‘civil war’, ‘sweet sorrow’, ‘domestic violence’, ‘even odds’ and ‘deafening silence’.
In this sense, ‘possibly apocryphal’ is not an oxymoron. I’d barely even call it a contradiction. I’d say it’s unnecessary redundancy, like saying ‘possibly uncertain’ when you could say ‘uncertain’.
I wonder, have you used this resource to get inspiration for your amendment ideas? Link: https://amendmentsproject.org/
Yes, I totally agree with you, this's all a problem. Or, perhaps, several problems put together. How to fix it is another question, but we can all agree with what you've stated today: it's a problem!
No! This is fascinating! I've never seen this before! I've certainly been into Congress.gov looking at failed proposals from time to time, but obviously this is much easier, especially for old ones. Handy!
It's remarkable to me that they've been filing "repeal the 17th" amendments for 90 years, but not once proposed a replacement.
I think there's an amendment proposal in that database that addresses the deadlock aspect; it's from the 1930s and of course requires the 17th amendment be repealed.
Ok, I can't find anything from the 1930s, but I did find this, proposed by Mark Levin:
SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be chosen by their state legislatures as prescribed by Article 1.
SECTION 2: This amendment shall not be so construed as to affect the term of any Senator chosen before it becomes valid as part of the Constitution.
SECTION 3: When vacancies occur in the representation of any State in the Senate for more than ninety days the governor of the State shall appoint an individual to fill the vacancy for the remainder of the term.
SECTION 4: Senator may be removed from office by a two-thirds vote of the state legislature.
This is not my preference, but it's not bad. Credit to Levin for recognizing the problem!
Oh, I think it's bad - as you say, it'd restore all the old problems that led to the 17th Amendment! Which IMO would be at least as bad as the current problems.
I don't think it's *crazy* to think that the deadlocks problem could be resolved by a gubernatorial appointments fallback. I don't think it's true, but it is tempting in its simplicity, especially for constitutional text. (My idea is not simple.)
Regarding your footnote about Shields defeating Stonewall Jackson, worth noting is that there is some dispute about how much credit he should get for First Kernstown--while the plan was his, he was actually wounded the previous day by a shell fragment, and battlefield command went to Nathan Kimball.
Also of note is that the day of the battle, March 23, was a Sunday, and according to legend Jackson took the defeat as a sign from God and never again launched an attack on a Sunday afterwards. It's not really true, but it's a charming story.
TIL! Thanks!
James,
Count me among those "pro-filibuster moderates." However, I think there are more than a "small handful" of such Republicans in the Senate. During his first term, Pres. Trump repeatedly called for the Senate Republican majority to end the legislative filibuster. He was repeatedly rebuffed.
Then-Senate Majority Leader McConnell gets the brunt of the blame (or praise) for this action, but the legislative filibuster was broadly supported by Republican members. And the legislative filibuster continues to have support. Just after the 2024 election, Senate Republicans (including some of Pres. Trump's allies) preemptively announced that they would not weaken the filibuster.
I do not see the current use of the filibuster as abusive. The filibuster effectively imposes a supermajority requirement to pass most major legislation. This is a good thing! Slim, temporary, and partisan majorities in Congress should not be able to radically overhaul our nation's laws. It is good that such consequential changes require broad, enduring, and bipartisan consensus.
I think the 1964 Civil Rights Act is a key example. You mention filibuster abuses during this period, and I am not well enough versed in the history to dispute you. Nonetheless, the Civil Rights Act ultimately passed the Senate with a 73-27 vote, comfortably above the two-thirds threshold for cloture required at the time. (The cloture vote itself was 71-29.)
While the Civil Rights Act was a highly contentious issue at the time, the issue has (more or less) been put to bed. To my knowledge, there have been no serious efforts to repeal the Civil Rights Act since its passage. Conversely, in a universe without the filibuster, a much different Civil Rights Act would have been passed, and I presume we would still be fighting about it today.
(I don't mean to imply that there is no dispute about the application of the Civil Rights Act itself. Notably, after 50 years of splits in the circuit courts, the Supreme Court recently had to step in to clarify that, yes, the protections of the Civil Rights Act apply the same to everyone equally.)
In this way, I see the filibuster as reducing political conflict, not raising it. Imagine if the fundamental character of our country's laws was determined every two years by a handful of House races in purple districts and Senate races in purple states. Note, this problem would be exacerbated by gelding the veto, as you suggest elsewhere. Decreasing the threshold for one party to exercise unilateral control increases the probability this happens.
Conversely, I do not think there is much value in the "cooling off" function. Suppose the Senate Democratic majority eliminated the filibuster at the start of Pres. Biden's term by lowering the threshold for cloture to a simple majority. I do not think the requisite 30 hours of "debate" would have dissuaded Senate Democrats from passing their key legislative priorities. Some examples:
• H.R. 1 (a hodgepodge of progressive priorities on "voting rights," campaign finance, etc.)
• H.R. 4 (federal takeover of elections)
• H.R. 5 (dramatic expansion of the scope of the Civil Rights Act)
• H.R. 6 (retroactive legalization of Pres. Obama's DACA program)
• H.R. 7 (criminalization of the "gender pay gap" as disparate-impact type discrimination)
• H.R. 51 (DC admitted as a state)
• H.R. 127 (federal licensing and public database of gun owners; bans ammo above .50 cal)
• H.R. 1522 (Puerto Rico admitted as a state)
• H.R. 1976 (socialized medicine vis a vis "Medicare for All")
Instead, Senate Democrats actually had to negotiate with Republicans on important issues. And it turns out, Republicans and Democrats were able to compromise on some controversial topics.
• No federal takeover of elections, but sensible reforms to the Electoral Count Act after Jan 6.
• No public database of gun owners, but some improvements to background checks, funding for mental health, funding for school safety, and guns taken away from domestic abusers.
• No inclusion of LGBT in the Civil Rights Act, but national recognition of same-sex marriages.
• No Green New Deal, but investment in U.S. infrastructure and semiconductor manufacturing.
Conversely, I think we see the negative consequences of the filibuster's absence in presidential appointments to the executive branch and the judiciary. Senate Democrats wanted to confirm radical appointments by Pres. Obama, Republicans were opposed, and Democrats nuked that part of the filibuster. As an exercise, come up with your five worst nominees confirmed during the Trump and Biden admins. Would they have gotten through a 60-vote cloture? Probably not.
I think we also see the negative consequences of the filibuster's absence in reconciliation bills, but this comment is already too long. I will leave it as a question to the reader whether they think it is positive or negative that one party can increase the deficit by trillions of dollars when, by luck of the election, that party happens to win the presidency and both chambers of Congress.
When people talk about eliminating the filibuster for some important purpose, I am reminded of the line you quoted from "A Man for All Seasons": "Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?" Or as Sen. McConnell said, "You’ll regret this, and you may regret this a lot sooner than you think."
Finally, as a minor and unrelated point, Congressional Republicans have "conferences" not "caucuses." E.g., I would write, "Republicans are restrained only by the small handful of pro-filibuster moderates left in their conference." I presume this distinction once meant something.
Excellent article, as always!
Chris
Interestingly, I *did* come across a footnote while researching this that drew a 19th-century distinction between "caucuses" and "conferences." I haven't seen this elsewhere, and the context isn't quite the same so it could be wrong or I might be misunderstanding it, but:
> Formally, both parties’ “joint caucuses” met preceding the legislative balloting for Senate, to nominate the parties’ choices to fill the vacancy. A strong distinction was made between a caucus of party members and a conference. At a caucus, anyone in attendance was bound to abide by the majority vote of the caucus. Anyone not in attendance was not bound. Absences were noted by the leaders and by the press, which attended and reported the deliberations and the roll call vote(s) on the nomination. Anyone who absented himself from the caucus without “good cause” was considered an insurgent or a bolter. Because of the heavy implications of meeting in caucus, it was often difficult to call caucuses whenever joint convention balloting became protracted. Therefore, party leaders would often call conferences, which were allowed to take votes on whether to support particular candidates, but without binding participants.
(from "Party Control and Legislator Loyalty in Senate Elections Before the Adoption of the 17th Amendment" by Charles Stewart)
How this evolved into today's "conferences" and "caucuses" is beyond me (as you correctly point out, I'm sloppy about the modern distinction), but I thought it was interesting anyway.
The only thing I was particularly inclined to disagree with you about was the future prospects of the legislative filibuster in a future Republican senate. I had been under the impression that the filibuster hung together in, say, the 115th Congress because Sens. Murkowski, Collins, McCain, and Graham (a member of the Gang of 14, despite his recent reinvention) supported it; that 2 or 3 others quietly supported it (Thune, Cassidy, maybe Alexander? Romney later of course); that McConnell backed it both to keep from exposing divisions in his caucus and because he genuinely thought it was long-term beneficial; and that the rest of the caucus toed McConnell's line because McConnell had earned their trust (and he sure had; the GOP public never respected the way he richly deserved).
But then I realized that my theory of the case was based on vibes, not facts; that you are *much* better positioned to know the truth than I am; and that I will therefore defer to your view of the Senate Republican Conference!
As to the rest, I share your terror of a Democratic majority unloosed from the filibuster. Your parade of horribles largely lines up with my own from a few years ago: https://decivitate.jamesjheaney.com/p/midterms-anything-could-happen). I do think that the use of the filibuster is an abuse, because it perverts the purpose and meaning of "ongoing debate." On the other hand, I think there's a better-than-plausible case to be made that the current abuse of the filibuster is a necessary adaptation to the breakdown of the Senate and its growing polarization. A Senate that isn't a cooling saucer and which has lost the character of consensus-building needs a blunt consensus-forcing mechanism, or the United States collapses into the mad partisan fits of parliamentary democracy (sorry, readers from the Commonwealth!). The filibuster fills that role, at least for now.
On the other hand, I also think it's a tactical error, here in 2025, for the Republicans to continue to protect the filibuster. (It was a closer call when Joe Manchin and Krysten Sinema were still in the Senate, and, as you describe, the gamble of counting on them did pay off.)
I think it was demonstrably a tactical error for the Gang of 14 to make their deal in 2005: Democrats got to keep Miguel Estrada and block a variety of Bush judges, and what the GOP got in exchange was... really very little, because Reid blew up the deal and shoved through all his nuttiest noms as soon as it became even mildly inconvenient for him. (I fumed about this a dozen years ago here, and mocked the Gang of 14 rather unkindly: https://ropersanchor.jamesjheaney.com/2013/11/22/no-republicans-have-not-blocked-82-obama-nominees/ ) In principle, I'm inclined to support the filibuster for all the reasons you mention, at least in our current Senate. In practice, with one party bent on destroying it, I think the filibuster is dead and that the GOP should reap the rewards of destroying it and passing a bunch of legislation before the other side inevitably does it to us. We will regret doing this -- McConnell's warning is exactly right -- but I think we will regret even more *not* doing it.
At root, though, I think the filibuster is serving this role because the Senate is broken. If we fix the Senate at the source, I think... well, I hope... that we would find the filibuster simply wouldn't be an issue anymore. (I suppose I am tipping my hand here that my proposal in a couple of weeks will be oriented toward increasing the proportion of moderates in the Senate overall.)
Thanks for the thoughtful comment! Always a pleasure to hear from you.
Interesting point on caucuses v. conferences! Yes, it is also my vague understanding that the distinction originally concerned binding v. non-binding internal votes. However, I do not remember where I read that, and the House and Senate Democratic caucuses don't seem to use that function today, so I am left confused.
You make a fair point: My comment glosses over some of the internal conference divisions over the filibuster during the first Trump admin. Moreover, the level of support for the filibuster varied by member, and surely involved both principled and practical motivations. I agree that Leader McConnell was the keystone.
I'll just point out that Republican Sens. Collins, Hatch, McCain, Murkowski, Wicker, Graham, Strange, Burr, Moran, Blunt, Rubio, Boozman, Tillis, Capito, Thune, Cassidy, Flake, Heller, Grassley, Portman, Alexander, Kennedy, Cochran, Sasse, Young, Roberts, Isakson, and Lee all signed a bipartisan letter to preserve the filibuster.
That's 28 members by my count, and represents a lower bound for Republican support. I suspect that others also supported the filibuster but did not want to pick a public fight with Pres. Trump. While many of these members have left the Senate, I think recent experiences have convinced Republicans to keep the filibuster.
Is this a game-theoretically optimal strategy? Left as an exercise for the reader.
Concerning whether the current use of the filibuster abusive, I would be happy with a constitutional amendment that puts the supermajority requirement on the bill's final passage, rather than on ending debate. I'm OK with things coming to a vote.
Maybe I've read too much Jim Buchanan, but I think that supermajority requirements are beneficial to protect minority rights and interests. You could "fix" the Senate, and I think I'd still want a supermajority requirement. Mob rule by deliberative moderates is still mob rule. Maybe you'll convince me otherwise in the next installment!
Likewise, thanks for your thoughtful response. Always appreciate chatting!
I think making the U.S. Senate function like the German Bundesrat would fix the problems. James, have you looked at how the Bundesrat works? It seems to work well to present the voices of the different German states in the German parliament.
I suppose I'll just admit the Bundesrat is not the direction I'm going, but I do like a lot about German law and electoral systems in general!
The Bundesrat seems to be similar to the Continental Congresses and the Confederation Congress with each state (Land) represented by a delegation appointed by that state, with a set number of votes cast as a bloc by each delegation. The delegations are not free agents like US Senators and can be replaced at will.
Another thing to keep in mind about the Bundesrat is that it doesn't have an absolute veto over all legislation; it only has such a veto when the legislation impinges on the interests of the Lander. (Which has been expansively interpreted by the courts to be much larger than envisioned by the framers of the Basic Law.) It also can't veto the budget, I think.
(Its formula for apportioning votes to the various Lander also leaves much to be desired.)
It's also, as I recall, legally independent from the Bundestag and thus isn't properly comparable to an upper house in other legislative frameworks.
It is worth noting that Germany (like many other continental European systems) has a very party-focused electoral system (by design, rather than by accident). For instance, at the federal level, the electoral system was changed to prevent overhang and leveling seats by instead providing that if a party elected more local candidates in a Länd than their share of the party vote entitled them to have, the worst-performing winning local candidates would not receive a seat in the Bundestag, in effect eliminating local representation. (Twenty-three such candidates were not seated in the 21st Bundestag as a result.) Overhang and leveling seats hadn't been needed until 2005, when 16 were added, but then there were 24 in 2009, 33 in 2013, 111 in 2017 and 137 in 2021. (From a look, it seems that a major factor in this was the rise of the AfD, who first received representation in 2017, and have strong regional support in the former East Germany, disproportionate to their support nationwide.)
I know I have talked up Baden-Württemberg's system in the past (though now it is their former system, as in 2022 they changed to a two-vote closed-list system as seen in most other places that use MMP), and I still think it is good, but one detail I had failed to notice is that it was a one-vote system, not a two-vote system; you voted not for a local candidate and separately for a party but rather, in effect, only for a party, and the local candidate elected was that of whichever party received the most votes in the constituency. So there was no opportunity to vote for a local candidate who might buck their party on issues important to you (but not to the point where the party kicked them out), or for an independent candidate, while voting for a different party that was more in alignment with your values. That system is too party-focused for me, at least. A two-vote system that uses the pre-2022 Baden-Württemberg system for forming the list, however, would likely be a reform I'd support.
Another quirk of German electoral law is the exception from the electoral threshold (5%, abnormally high by MMP standards) for parties representing recognised national minorities (in Germany, these are Danes, Frisians, Sinti and Roma, and Sorbs); the South Schleswig Voters' Association (representing Danes and Frisians) elected a member to the 20th and 21st Bundestag and has had a presence in the Landtag of Schleswig-Holstein continuously since 1958. I do not know what aspects of German law preclude political games being played with the process of determining exactly what groups get recognised as such. (I am sure a mutual acquaintance of ours would insist that German political culture is simply inherently resistant to such chicanery without offering any actual legal basis for it.)
Nooooo! Not Baden-Württemberg!
You really sold me on that years ago. It's still my preferred proportional system because of it. I keep assuming it's eventually going to come up in this series! Putting a "former" in front of it is gonna be a tough blow.
It's also mine, at least, as I said, if structured as a two-vote system instead of a one-vote system as they did it. I wish I knew the rationale for the change, but the only sources I can find are in German. (They also lowered the voting age to 16 while they were at it.)
At least the system has (more or less) been used in a real-world polity, so unlike some other proposals I've seen there's an example to point to of how well it worked (or didn't).
The "cooling saucer" story might not be real, but one that almost certainly is real is the description of the Senate of Canada as "ha[ving] the sober second-thought":
https://macdonaldlaurier.ca/files/pdf/MLIConfederationSeries_MacdonaldSpeechF_Web.pdf
(What may be apocryphal about this is that Sir John A. Macdonald's use of the term "sober" was due to his being a notorious drunkard; he reportedly often showed up to the House completely sloshed, especially when in opposition in the mid-1870s when turfed out of power following the Pacific Scandal. Another possibly apocryphal tale is that Macdonald told Thomas D'Arcy McGee that since the Government could not have two drunkards, McGee would have to give up alcohol.)
While the Senate of Canada has near co-equal power with the House on paper (s. 53 of the Constitution Act, 1867 is one of the few limits), any attempt to actually exercise this power would result in popular demand for some sort of broad reform. Senators know full well that their role is to check the worst democratic excesses of the House, not to defeat legislation outright (this does not stop poison-pill amendments), and that stepping beyond this without very good reason will lead to calls for abolition (one major party supports this for self-serving reasons), or democratic legitimisation, generally through direct election (another major party supports this for self-serving reasons; the third major party tends to support the status quo for self-serving reasons) or maybe, if they are very lucky, only something like the Parliament Act 1911 (which almost nobody advocates for because, one, nobody knows about it, two, a comparatively modest reform of that sort would not sate the desire for democracy these days, and three, it doesn't serve the interests of any major partisan faction).
(Actually enacting any of these would be very difficult: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13614/index.do )
Consequently they play a delicate balancing act by attempting to ensure that any amendments that make it into legislation that actually passes are ones that are good and useful and generally not controversial, and that they don't actually block the House's legislation without extremely good reason. (To the point where the government will sometimes use the fact that the Senate has a legally separate legislative process to slip in provisions that they should have included in the version presented to the Commons but were precluded by procedural rules from adding later once this became apparent.)
(The monarch plays a similar balancing act, staying out of the way of democratic processes right up until only monarchical intervention can keep said processes functioning normally, with the possibility of monarchical intervention serving to keep political actors from straying outside the bounds of said processes. I think it no mistake that the model of parliamentary constitutional monarchy, in some form, has produced as many stable, more or less liberal democracies as it has while republican models, especially those founded on the US model, have proved far more brittle. One need only look at the history of democratic governance in Latin America to see this, though admittedly there are other factors at play there as well.)
As for the fast-moving democratic paroxysms to which parliamentary systems are sometimes subject, keep in mind that partisan electoral politics is a check on that! In majoritarian electoral systems, any legislation that is too odious to the opposition will be repealed once they take power (unless you stay in power long enough that it just becomes an accepted part of life and too much else is built around it to make it possible to repeal cleanly); this does have the effect sometimes observed that the first year or two of a new government is spent repealing all the previous government's most odious legislation rather than doing anything substantively new. In proportional systems, since most governments will be coalitions of some sort, it is often the case that each successive coalition will have some overlap with the previous (New Zealand may be an exception to this for assorted reasons), and consequently cannot fully repudiate the previous government's policies, which in turn means that any policy a government wishes to enact cannot be wholly opposed by whoever happens to be in opposition at the time, lest it be impossible to form a coalition following the next election. If the electorate agrees that the "parade of horribles" is truly horrible, then whoever takes power next will be able to move just as quickly to repeal it all as the enacting government was able to move to implement it.
I am, of course, interested to see whatever you do propose, but my inclination (which is, of course, influenced by the constitutional tradition I learned) is that these sorts of implicit checks serve to protect counter-democratic institutions much better than explicit, entrenched textual provisions ever could. (For instance, outside of a Corwin Amendment-style provision banning any amendment that would restore direct election of Senators, I am very curious to see how you propose to keep the People from, at least at some point, demanding that the democratic reins be handed back to them--or convincing them to give it up in the first place.)
Even if you return the Senate to a body appointed in some fashion by the state gvernments, you still would need to address and limit the influence of political parties. Otherwise, state legislature elections (or state governors if that's who does the appointing) just become proxies for US Senate selections like Lincoln-Douglas.
Kudos to you for recounting that history, however. I had assumed that the proxy system was more common and existed before 1858.
As my own contribution I propose a slight rewrite of the "Levin Amendment" presented by Epikouros as follows:
SECTION 1: The Seventeenth Amendment is hereby repealed. All Senators shall be chosen by their state legislatures as prescribed by Article 1, except that a two-thirds vote of each House of the Legislature shall be necessary for a choice.
Mandating a two-thirds vote should ensure that each Senator is acceptable to both political parties and (hopefully) reduce partisanship in the Senate. I could see that states might adopt a convention that its 2 Senators would be of different parties, but each party would still have to take part in the election of each Senator.
I'm sorry; the Democrats currently have a two-thirds majority in the New York and California state legislatures, as do the Republicans in Florida and Oklahoma. Some states are more partisanly-captured than you think.
I'm going to spoil the next installment a bit by posting, in toto, Footnote 7 from my current draft, illustrating your point in detail:
7. You’d be surprised by how many states have effectively single-party rule. Or maybe you wouldn’t be. Since I live in a closely divided state (our figure on this chart is 50.7%D/49.3%R), I am really taken aback that there are so many places in this great nation where a single party controls more than two-thirds of the seats. If the Seventeenth Amendment had succeeded in fully disconnecting state politics from federal, wouldn’t we expect to see more states that are red or blue at the federal level but more moderate internally? It seems that, even without the prompting of the Senate election, the People are still voting for state legislators based on the letter next to their name.
Alabama: 75%R
Arkansas: 83%R
California: 75%D
Connecticut: 70%D
Delaware: 71%D
Florida: 68%R
Hawaii: 88%D
Idaho: 83%R
Illinois: 68%D
Indiana: 80%R
Iowa: 68%R
Kansas: 78%R
Kentucky: 82%R
Louisiana: 72%R
Maryland: 72%D
Massachusetts: 88%D
Mississippi: 69%R
Missouri: 71%R
Nebraska: 67%R
New Hampshire: 67%R
North Dakota: 89%R
Ohio: 73%R
Oklahoma: 81%R
Rhode Island: 87%D
South Carolina: 74%R
South Dakota: 89%R
Tennessee: 82%R
Utah: 76%R
West Virginia: 94%R
Wyoming: 94%R
***
Now, that said, I don't think this is the death knell for Phil's idea. If a state party has achieved one-party control over a state to the extent that it has two-thirds of its state senate seats, they probably *should* get to dictate the U.S. Senator for that state.
There's no risk of proxy election there, because it's a one-party state; everybody knows in advance which party is going to elect the Senator regardless of who wins the swing districts, everybody knows the out-party has no hope even in a wave, so people can still vote their consciences on state issues without fear of affecting the U.S. Senate outcome.
A two-thirds requirement like what Phil suggests would still have the desired effect in swing states (which may be adequate) and (combined with certain other measures and safeguards) could still force compromise between moderate and extreme factions of the party even in one-party states, which probably still helps a little.
The biggest problem I foresee with Phil's amendment is that, under such strong constraints, the party that controls the governor's mansion will always intentionally force deadlock in order to give the governor the power to appoint a partisan extremist without compromise. Even if parties don't *deliberately* do that, a requirement that high would likely mean lots of deadlocks, which would be resolved by a partisan governor.
But I think these problems are solvable.
Hopefully!
"It seems that, even without the prompting of the Senate election, the People are still voting for state legislators based on the letter next to their name."
You are correct, and this is the outcome I would expect as an economist.
Political parties are brands, and brands communicate information. A candidate's party affiliation tells me (with moderate confidence) their general views on taxes, healthcare, climate, immigration, gun control, etc.
Since everyone has limited time and attention, and it is extraordinarily unlikely that any individual vote sways the election, the strategy of "pull the lever for the candidates of the major party you agree with" makes sense.
This strategy will give correlated results across state and federal elections. One's political preferences at the state level generally mirror one's political preferences at the federal level. Hence, we see straight-ticket voting.
This strategy becomes even more sensible with high levels of polarization. Suppose a voter researches their party's senatorial candidate and finds that she is a total squish on (e.g.) abortion, however defined. Is there *any* chance that the opposing major party's candidate will be any better on abortion? Not in 2025. So, you vote for the squish and hope it works out.
(P.S., by "makes sense," I mean that the straight-ticket strategy is rational given one's preferences and constraints. Of course, rational may not be moral.)
Fair points. Footnote 7 is therefore making a cheap shot. I'm going to go revise it!
I was certainly aware that some states were heavily partisan, but that many is dismaying. But in my defense, my proposal requires *both* houses of the legislature have a 2/3rd vote. At least in Ohio, the House has just shy of that number of Republicans. There may be other outliers,
The hold-put to the governor's choice is a real problem. My thought was thaty a gubernatorial appointment would last only until the next session of Congress -- 2 years or less-- but I wasn't sure how to write that up in Constitutional language.
Well, I have some Thoughts on defanging the gubernatorial deadlock threat by forcing the state legislature to reach a result much faster than 90 days -- even if the Constitution has to *beat* them into a true consensus candidate with a statistical hack. We'll have to see what you think about said Thoughts in a couple weeks.
"However, simply repealing it won’t do. Repeal the Seventeenth Amendment without replacement, and you just invite back all the ills that led to it in the first place. If all you do is put legislative election back into the Constitution, do you think you’d even achieve the goal of getting legislatures to elect their senators? Of course not! Half the states would immediately adopt something like the Oregon Plan, and, without good solutions to the problems that drove us there in the first place, the other half would soon follow."
This may be pedantic, but this is not what would happen. This is because to repeal the 17th Amendment, you'd need congress to pass it, and then 3/4 of state legislatures to approve the repeal. If 3/4 of state legislatures voted to repeal it, then you are not going to see 1/2 of them immediately bring it back via law.
I suppose, if the amendment is instead done by constitutional convention (the other way to get amendments, which has never been done before), then the state legislatures wouldn't be the ones necessarily approving it. However, as the constitutional convention still requires 2/3 of the state legislatures to call it, and then ratified by 3/4 of the conventions. In such a case, perhaps it could be going against the wishes of the state legislatures (perhaps the conventions ended up proposing things the state legislatures didn't originally want, and the conventions, which are not the legislatures themselves, ignored the state legislatures), but that would seem implausible, and in any event if there was enough general support to do all of this, 1/2 of states wouldn't be reverting to something else as soon as the Seventeenth Amendment were passed.
We would, however, very quickly see the sort of "proxy voting" that was a problem, where people vote for their legislators primarily based on the Senate candidates. The parties could theoretically TRY to go back to not choosing them until after the legislative elections in order to thwart this, but that would end about as soon as one of the parties realized that by letting the voters know their candidate ahead of time (and possibly giving the voters a role in choosing them in a primary), they'd be at an advantage, forcing the other party to follow suit.
The 21st Amendment was proposed by Congress and ratified by state conventions. This was done because state legislators were worried about being challenged by well-organised pro-prohibition activists should they vote to ratify even as general public sentiment had turned against prohibition. Thus Congress specified that state ratifying conventions be the method used.
Even then, that amendment makes it a violation of the federal Constitution to break state laws concerning transport and import of alcohol (but doesn't give Congress any enforcement powers about that). I don't know how many states kept prohibition laws on the books, though. It was probably just a provision to say "no this doesn't mean individual states also can't ban alcohol, this is returning jurisdiction over the question to them".
This site also goes into House apportionment, but it has a related article about the post-17th Amendment making states act as large electoral districts with Senators: https://thirty-thousand.org/blog/the-17th-amendment/
From note 5: ‘Many people describe a story as “possibly apocryphal” or “probably apocryphal.” This is, properly speaking, an oxymoron.’
Since we're being etymologically pedantic … historically speaking, an oxymoron something that is seemingly contradictory at a surface level, but the combination actually makes sense, sometimes in a deep or profound way, and sometimes to make a rhetorical point. Examples are ‘civil war’, ‘sweet sorrow’, ‘domestic violence’, ‘even odds’ and ‘deafening silence’.
In this sense, ‘possibly apocryphal’ is not an oxymoron. I’d barely even call it a contradiction. I’d say it’s unnecessary redundancy, like saying ‘possibly uncertain’ when you could say ‘uncertain’.
</pedantry>