Elmer’s Glue for the fractured republic

Repealing the 17th Amendment could fix a few things. You gotta start somewhere

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I was going to write a full post on the impeachment trial, but I can’t. It’s too dispiriting and infuriating. Besides, other people who know more stuff than me have smarter things to say. Recommendations at the end of this post.

I’ll delve into a question I got: Is the impeachment trial constitutional?

Short answer: yes, because a majority of senators said it is. They set the rules.

Longer answer: yes, because, as these constitutional scholars explain in a Jan. 21 letter, the Constitution doesn’t give public officials a free pass if they commit impeachable offenses on their way out the door. 

From the letter:

If an official could only be disqualified while he or she still held office, then an official who betrayed the public trust and was impeached could avoid accountability simply by resigning one minute before the Senate’s final conviction vote,” they noted. “The Framers did not design the Constitution’s checks and balances to be so easily undermined.

The House impeached Donald Trump while he was president. Mitch McConnell refused to allow Trump to be tried as president by refusing to reconvene the Senate before Jan. 20.

It’s both sad and pathetic that Trump probably won’t be convicted. The timeline House impeachment managers laid out Wednesday stunned me. Trump seemed perfectly OK letting a mob lynch his vice president for refusing to violate the Constitution and not count electoral votes.

But most GOP senators would rather protect their phony-baloney jobs than defend our constitutional order.

(Sidebar: The Constitution also says the chief justice shall preside over impeachment trials of presidents. But Trump is out of office, so the “honor” goes to the president of the Senate (either the VP or the president pro tem). The Senate should have asked John Roberts or another federal judge to handle this one. Kamala Harris was never going to have her fingerprints on this proceeding, and Pat Leahy is too far gone to preside competently.)

What about the 17th Amendment?

Senators have to worry about protecting their phony-baloney jobs because they must face voters. As Donald Trump or a variation of Trumpism continues to loom over Republican Party politics, then GOP officials who refuse to toe the Trumpist line will face primary challengers who do.

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So enough of them will vote to acquit, saving their hides (and political careers) and leaving an option for Trump to run in 2024 — which … would delay the pro-Trump senators from a run for the White House for another four years. Maybe they’re angling for Cabinet positions or seats on the Supreme Court or Fox News gigs. Who knows?

Repealing the 17th Amendment might rein in the cravenness. It’s “the only major [constitutional] change to the structure of Congress.” Before 1913, senators were chosen by state legislatures. The Founders wanted state governments to keep the feds in check. As Madison argued in Federalist 62, having legislatures pick senators would enhance state leverage over the national government. Other Founders, including George Mason and Wendell Pierce, said appointment would inspire healthy tensions between the House (elected by voters) and Senate (chosen by legislatures). Read more from the National Constitutional Center here

Populists and Progressives didn’t like it.

Populists wanted the people to decide who sits in both federal legislative chambers. Progressives wanted to weaken state control over Washington. So here we are. Here we will stay. The 17th isn’t going anywhere.

But had the 17th Amendment never been enacted — or had it somehow disappeared Jan. 1, 2021 — what might have changed?

The big one: Republican senators up for re-election in 2022 wouldn’t be looking at primary challengers. They could, as McConnell has suggested, vote their consciences. Without question, they’d have to figure out what their legislatures preferred, and if voting to convict was the same as a ticket home. Several senators who’ve said they’re retiring — especially Pat Toomey of Pennsylvania and Rob Portman of Ohio — might stick around longer. Senators would have a different constituency to satisfy.

The larger effect: A healthy rejiggering of the relative standing of the states and the federal government. State legislatures immediately would become more relevant, because they would pick U.S. senators.

People would be much more likely to pay attention to what their elected state officials are doing and who’s representing them. Good. Oddly, this would make the selection of senators much more democratic, if indirectly so. The individual voter has more influence over their local state senator or representative, who then would choose the two people sitting in Washington.

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The downside? Some legislatures are nutty, ineffectual, or both. One of the most effective populist arguments against the appointment of senators was that the candidates were chosen secretly, in the proverbial smoke-filled room, by party hacks.

But voters could prevent or mitigate this development. They could insist on some level of transparency — a nominating committee, public debates, involvement of local party committees, or others. They could hold legislators accountable if they botched the job.

Voters might be more empowered and engaged in this process than they are in what’s happening now. It’s a lot easier to genuinely engage with a state lawmaker than a U.S. representative or senator.

Would it reduce the amount of money in politics? No idea. I don’t really care, so long as money paying for express advocacy (“Vote for/against Senator Fussmucker”) continues to be disclosed. My guess is some money would flow to campaign groups trying to influence legislators to pick favored candidates, and more would go directly to legislative races.

While there may be a populist appeal in getting rid of the 17th, I’m not a populist. I believe in limited, constitutional government that protects individual rights. Separation of powers. The rule of law. Federalism. The past century has both enhanced and undermined these concepts.

It’s why I consider repealing the 17th “Elmer’s Glue” rather than, say, Gorilla Glue or something stronger.

Our democratic republic is fractured. This might prevent additional damage, and maybe persuade others that more durable repairs are possible. 

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Other reading:

Jonah Goldberg: https://thedispatch.com/p/impeachment-is-about-statesmanship

Dan McLaughlin: https://www.nationalreview.com/2021/01/a-reply-to-the-federalist-on-impeachment-and-mob-rule/

Keith Whittington: https://www.lawfareblog.com/can-former-president-be-impeached-and-convicted

Jonathan Adler: https://reason.com/volokh/2021/02/10/trumps-attorneys-misrepresent-kalts-scholarship-on-late-impeachments/

Ilya Somin: https://reason.com/volokh/2021/01/11/why-impeachment-should-proceed-even-if-it-cannot-be-completed-until-after-trump-leaves-office/