Interview with Professor Todd Zywicki

On February 11, the Buckley Program hosted a Firing Line Debate on the direct election of senators between Professor Todd Zywicki and Professor David Schleicher. Professor Zywicki is a law professor at George Mason University’s Antonin Scalia School of Law, a Senior Fellow at the Cato Institute, and former Executive Director at the George Mason University Law and Economics Center. He served as Co-Editor of the Supreme Court Economic Review from 2006-2017 and as Editor from 2001-2002. The transcript of this interview has been lightly edited for clarity.

Clay Skaggs: Thanks so much for taking the time to speak with us today, Professor Zywicki.

Professor Zywicki: Thanks for having me.

CS: There’s a lot of debate over the reason for the 17th Amendment coming into being, with some arguing it was the result of democratization, and others arguing it was because of the increasing nationalization of partisan issues. Our first question is: what do you think the original purpose was for its ratification?

PZ: It’s an intriguing question, right? The reason it’s intriguing is that it was proposed and ratified by the states, which is to say that it wasn’t done through a constitutional convention. It was done first by two-thirds of the House and Senate, which means that the Senate voted for it and then it went to the states and three-quarters of the states voted to ratify it. So, there is kind of an anomaly here, which is, why did the states ratify something that seems to have taken their power away from them? There’s a couple of different stories that you’ll hear about tomorrow. One story is that it was just the forces of democracy and, basically, people demanded the right to vote for their senators.

There was a perception of the time that the Senate was very much out of touch and anti-democratic and that was not standing up well to the rising democratic forces of the late 19th Century and early 20th Century. Now, that argument has never been completely persuasive to me, mainly for the reason that a lot of states at the same time also adopted elections for judges. Yet, there’s never been any effort to try to elect federal judges. And so, maybe that’s just enough off of people’s radar that they think of it as different from the Senate. So, it might be partly democracy, but it doesn’t seem to explain why just the Senate and not other things were going on in the states, including initiative and referendum, which nobody has really pushed at the national level. 

So, that’s one theory. Professor Schleicher will tell you that he thinks that the states basically said good riddance, and that the state legislatures didn’t want to have their futures tied to the vicissitudes of senatorial elections. And so, they gave it up willingly because it was more trouble than it’s worth. I’ve hypothesized in some of my work that what else might’ve been going on was essentially special interest politics. Which is, the rise of the national economy brought with it a rise of national interest groups, such as labor unions and groups involving the railroads that were interstate in nature. There was a perception that interstate interest groups needed a federal government that would be more susceptible to providing beneficial legislation to those interest groups and that the Senate was blocking that, which was of course exactly what the purpose of the Senate was. It was to reduce the power of special interest groups. 

Another example on this is that, contrary to the myths about the Progressive Era, urban machines were big supporters of the 17th Amendment. Why? Because when senators were elected by state legislators, the state legislatures were malapportioned at that point, and rural districts had disproportionate interest in state legislatures, which meant that they had disproportionate influence in electing senators. Urban machines want as many things to be elected as possible because they could drive people to the polls to accomplish their goals. The desire of urban machines to increase democracy dovetailed in sort of a bootleggers-and-Baptists way with do-gooders who thought that elections would be good.

And the final thing was that there was a sense there were these stalemates in the states, that the States were incompetent at electing senators. It would be shown by these stalemates where seats were to remain unfilled for extended periods of time. I talk about this a lot in my research. I think that that chooses the wrong problem. The real problem was a federal law that was enacted in the 19th Century following the Civil War that required US Senators to be elected by a majority vote of their state legislatures. And, of course, when they passed the 17th Amendment, they also got rid of that, and it’s quite common now for politicians to be elected by plurality vote rather than majority vote.

So, it would have been very easy if senators could have been elected by plurality vote to fill those. I think it was that weird law that created the stalemates rather than the inability of the state legislatures to be able to do it. You asked what you thought was a very simple question, and I gave you four different hypotheses that might explain it, all of which might have something to do with all of it. The real question is why did the state legislatures surrender what most people would think of as being one of their plum powers?

Michael Samaritano: That’s a really excellent answer to that seemingly simple question. So, in the hundred years since these changes were enacted, what do you think the 17th Amendment’s overall effect has been on our politics and on the federalist structure that the Founders envisioned? And why should we care about that vision?

PZ: Yeah, that’s the right question. Distilling the actual effects of the 17th Amendment is a little bit tricky. Why? Because right after the 17th Amendment was enacted in 1912, we got World War One. World War One would probably have transformed the federal government regardless, but it really transformed in the light of the 17th Amendment. There’s a lot going on and isolating what was going on with 17th Amendment is hard to do. What we see after WWI is the first time in American history what Robert Higgs called the ratchet effect, which is that the federal government grew to meet the crisis. In the past the federal government would grow and then shrink back to its steady state level. For the first time, after WWI, the federal government grew and then stayed big. Then it grew again during World War Two and the Great Depression, and then grew again during the Civil Rights Era and grew again.

What we see in the post-17th-Amendment world is a ratchet effect on the sides of the federal government that we never saw before. That’s a correlation. It may be causal; it may not be. But it’s a correlation that strikes me as a plausible correlation. The second thing we see is that much of that growth in the federal government has been in handing out transfer programs and special interest legislation. It’s been basically redistributing money on the national level. Obviously, the first one is Social Security, but we also see our first agriculture subsidies bill right after WWI. We start seeing a lot of this pork barrel type stuff that the federal government now does sort of in its sleep. You can look at the latest bills we’re seeing now that are supposedly related to COVID relief. That’s a relatively rare phenomenon pre-17th Amendment.

The third thing that reinforced that was that the 16th and 17th Amendments went through at the exact same time. You can think of the 16th Amendment as basically opening the spigot for taxing, and the 17th Amendment opening the spigot for spending and regulation. The combination of those two together is what really does it. The 16th Amendment allows all this money to come in, and the 17th Amendment restricts a lot of the traditional limits on the federal government in order for the federal government to gauge and fund redistributive programs. Whether you think that’s a feature or a bug is a different question.

Obviously, that’s exactly what the Framers wanted to avoid. But, if you’re a new dealer, if you’re a Woodrow Wilson or FDR or Lyndon Johnson, that’s exactly what you want. You see the states as obstructionists to a powerful federal government doing what you want. It’s hard for me to believe that the 17th Amendment didn’t have some impact on the growth of the federal government and the activities of the federal government, although it’s hard to distill its precise effect. Combined with other things that were going on, it seems like it accelerated perhaps other trends and reinforced them.

MS: One of the criticisms of the reinstating of indirect election is that the primaries for these would, in effect, choose the same candidates as the popular vote. Do you see that as a valid criticism, and why or why not?

PZ: Yeah. That’s the standard argument, that the 17th Amendment was a mop-up operation. A lot of states had already adopted either direct primaries or direct elections in a straw poll sort of way, what they call the Oregon Plan. When you ran for state legislature a line would appear on the ballot. It was picked up by other States but Oregon invented it. You would pledge in your state legislative election: “Yes. I will support the people’s choice for the US Senate.” “No, I will not support it. I will use my own judgment.” The states had adopted a lot of democratic reforms, which adds credence to the idea that a lot of what this was about was just the tide of democracy.

But to my mind, it’s still raises the question then: all the 17th Amendment does is force states to adopt direct election that didn’t want to adopt it. Every state had the right to do it. What’s unusual about the 17th Amendment is that there’s these other states and we want to force them to adopt popular election, even if they don’t want it. This, in my mind, leads to the idea that there was a special interest thing going on here. It’s quite clear that there were economic interests that thought that they would get a better shake in Washington from a democratically elected Senate. Western farmers thought that especially.

Some of the empirical evidence I’ve found suggests that one of the things that was going on in this period was the West essentially had a three-party system: Democrats, Republicans, or progressive Republicans. What you saw was a lot more churning in their US Senate representation, depending on which parties were in control. Whereas the South, which is basically a one-party system, had a lot more seniority than other regions of the country. So, one possible explanation for why Wisconsin and Iowa cared how South Carolina elected its senators was to tie their own hands, but also to try to restrain the ability of a Southern state to send back the same senator over and over again through their machine. 

So, what I’ll say is this: do I ever think we’re going to repeal the 17th Amendment? Probably not. I think it would be a pretty good idea, but Professor Schleicher has convinced me that maybe it’s not as good as an idea as I originally thought it was. It wouldn’t be a panacea for everything, but what it is, is a way of recognizing and understanding the constitutional structure the Framers were trying to create with bicameralism and federalism, and the goals of preserving individual Liberty and frustrating special interest groups through different branches of the government.

And so, maybe they got this particular instrumentality wrong, but we can understand what they were getting at, which was trying to create a system of checks and balances where the States would have both the ability and the incentive to protect themselves from the federal government. It may be that they chose the wrong instrumentality. It may be that that’s not the best way to do it today. But it does point out that maybe we should think about whether there’s some other institutional arrangement we should adopt rather than trying to repeal the 17th Amendment, something that would give us some of those virtues of the 17th Amendment in terms of frustrating special interests and protecting the system of competitive federalism.

CS: One more question on the effects of the 17th Amendment. You mentioned the vision of the Framers. Many people argued that since senators had longer terms and they were not meant to be directly elected, they were supposed to act as an aristocratic check on the more democratic House. Has the 17th Amendment gotten rid of this system of checks? And with the filibuster, also, if we were to repeal it, would that further destroy this check?

PZ: Yeah. There were two goals of the 17th Amendment. One was the institutional one that we’ve been talking about, protecting a bicameral wisdom and federalism. There was also the point that you’re talking about, which is they also saw it as a sort of a British House of Lords. You have the minimum age requirement for the Senate which is five years older than for the House. It would be people who had achieved great distinction in business, military affairs, lawyers, farmers, big land owners, things like that. Basically pillars of stability, education and the like. They would cool the tempers of the House.

These would also be people who would be repulsed by the idea that they would have to go out and scramble for votes by basically electioneering. The idea would be, we’ll bring in these people who have great judgment and wisdom, and they will be the saucer that cools the coffee of the passions of the House. I think nowadays there’s still the filibuster, but in large, the Senate is pretty indistinguishable from the House. Most senators are former House members, pretty much almost all senators are career politicians. It’s pretty democratic.

It’s got a lot of democratic passions. Yeah, the terms are longer and it’s a little more deliberative, but this is basically what Ben Sasse was complaining about in his Wall Street Journal article: the Senate is, really, not that much more deliberative than the House. And it seems to get less and less deliberative all the time. I think they’re more alike now than they are different. And, that whole idea of direct election of senators in partisan elections raises a third point. We talked about the institutional, we talked about the House of Lords part of it. It seems like it did kind of work as a little bit of an aristocratic body in the 19th Century. Imperfectly, but they did have Clay, Calhoun, Webster and people like that. True Titans of the Senate.

But the third thing is this. The fatal mistake of the Framers, as we all know from our ninth-grade civics class, was the failure to foresee the rise of political parties and the way in which political parties have overwhelmed Madison’s Constitution. There are some peculiarities that we’re witnessing literally as we speak, in the way that powers are allocated in the federal government. So think about, for example, impeachments. If you imagine the Senate being indirectly elected without political parties, where people are chosen based on sort of their wisdom and probity and judgment, it actually makes sense to think about the Senate sitting as a jury, as a body of the whole judging the impeachment trial of a president. In a world in which you have a president who is more or less directly elected by a partisan election, because the Electoral College isn’t at all what they expected it to be, and senators who are directly elected in partisan elections, you get exactly what you’re seeing. Impeachment trials become a farce, whether it’s Trump or whether it’s Clinton.

The Clinton impeachment trial was a bit of a farce for opposite reasons from Trump, but the results are predetermined in this case because everybody understands that it’s more partisan politics. So, an interesting question would be: if the framers had known that senators would end up being directly elected in partisan elections, would they still have structured the impeachment power the way they do where senators sit as a jury to try a president or some other federal officer? And we don’t know. What we do know is that this model of impeachment looks a lot more plausible, makes a lot more sense, in the world that the Framers thought we were going to live in, rather than one we actually live in. Same with confirmations, too. It’s just like judicial confirmations. They make a lot more sense when you’ve got senators judging the qualifications and character and ability of judicial nominees rather than how they’re going to vote on Roe vs. Wade.

MS: Definitely. The real world looks a lot different than the Founders had envisioned. I think that one of the foremost ways in which we see that is the calls, since the past few elections, for the abolition of the Electoral College, which you touched upon. What do you make of these calls? Is there, perhaps, a way to make elections look more like the Founders envisioned them on the national scale? Or is that just a dream now?

PZ: The question now about changing the Electoral College is kind of an empirical question, as odd as that sounds. The arguments for and against the Electoral College now are largely practical, which is: What will be the impact on fraud? What would be the impact on people’s voices? What kind of democracy do we want? That sort of thing. The Framers built a machine of interlocking parts. What we’ve done over time is pulled pieces of that out.

What the Framers had in mind would be really four bodies of government, because you have to recognize that they thought of the legislature as being two distinct bodies. What you had was the presidency, the judiciary, the House and the Senate. The legislative branch, they said, would be the most powerful branch, so they wanted to divide it in half to basically reduce its power. It’s an interlocking machine. The president would be elected in this convoluted, indirect way through the electoral college, more or less on a national basis, but the people would not directly elect the president. It would be these electors who would choose who they thought was the best person. Judges would be nominated by the president and confirmed by the Senate, notably, as we were just talking about not by the House. It didn’t have to be that way. In a co-equal type of way for the judiciary, they could just as easily have had the Senate nominate and the president confirm, but they pretty clearly saw the judiciary as sitting between the legislative branch and the president, and both basically having an equal voice.

Judges would be nominated by the president, confirmed by the Senate, sit for good behavior, essentially for life. The House would be democratic in small districts with direct election. And the Senate would be this indirect mechanism filtered through the state legislatures for six-year terms. The idea is that you would have four different branches elected by different constituencies for different lengths of time (four years, two years, six years, life) chosen by different constituencies, all responsive to different types of incentives. Out of this clash of different interests, really meaning the different interests of the constituencies who selected them, you would get a better result than if everybody was elected or selected in the same way.

What we’ve done instead is, one after another, pulled pieces out of this in a piecemeal fashion. We take the Electoral College first. You take the Senate second. You have a vestige of the Electoral College, you have a vestige of the Senate. But now it’s kind of hard to figure out what exactly they are doing? Because they’re not doing their original purpose. Now you have to retrofit them. Now, we’ve just got a historical accident. Once you end up taking bits and pieces out of it, it’s just a historical accident, which may or may not have proven the test of time or may or may not fit within the larger framework. But it’s a different question than the original question. And that’s the question that arises now with the Electoral College. Whatever we’re doing with the Electoral College now is different from what the Electoral College really was. It may be that the Electoral College still makes sense for some reason or doesn’t make sense for some reason, but that’s a different debate from the one that the Framers were having. So that’s my long-winded way of not answering your question.

CS: You mentioned how impeachment trials have become very partisan. Recently, we had seven senators challenge the results of an election without much evidence. Do you think this is a result of the party system or is it a result of the Senate being more vulnerable to democratic whims because they’re directly elected?

PZ: Well, that particular incident is pretty clear. It’s primarily the result of the fact that the Democrats objected to the last three Republican presidential election winners with no evidence. So that’s literally just turnabout is fair play. As you probably know, in the 2000, 2004, and 2016 elections, the Democrats had no evidence there either, yet they objected to the election. We’ve got a whole other problem with this whole tit for tat problem between the parties, which everything turns into now.

I don’t understand why at this point they don’t get that that’s what’s going to happen. I think, personally, the understanding of those objections has been incorrect. The reason they, as I understand, objected was to conduct an investigation. Certainly the Cruz objection was to conduct an investigation as to what happened. I don’t know if that’s the best way to do it or not. It wasn’t just a blatant, frivolous objection like it was the last three times Democrats objected to certifying elections. I think that it’s pretty clear that partisan politics exacerbates that. I don’t know enough about the 1876 election, but based on what I know about that, it seems a lot like the 1876 election which ended up in the House of Representatives. I think a lot of it probably has to do with partisanship, probably as much as democracy, would be my guess.

MS: Final question, perhaps a fun one for a law professor. If you had absolute control over passing one amendment to the Constitution today, what would it be?

PZ: Great question. So as usual, I’m going to answer that in a roundabout way. I’ve toured the country for years now talking about the 17th Amendment. I’ve been interested in this since I was in graduate school for economics, sort of wrote my Master’s thesis on this topic 37 years ago. One thing I’ve discovered as I toured the country, is that almost everybody has some silver bullet constitutional amendment that’s going to save the country. The favorite seems to be they’re going to get rid of partisan gerrymandering. Somehow that’s going to save the country. It won’t. Other people have allowing the states to repeal something. Other people want to get rid of Citizens United.

Everybody has some constitutional amendment that saves the country. They’re good at explaining to you what the intended consequences are of that, and why it would make the world better. But as soon as you ask them, “What might be the unintended consequences of that? How might that change the system in ways you don’t like?” they’re sort of like, “hmm, I haven’t thought about that before.” If you look at the 17th Amendment, I think it’s a good example of something that had huge unintended consequences. People have to decide whether net, the unintended consequences are good or bad. When you look at the debates around the 17th Amendment, it is quite clear that they did not believe that they were doing something that could later be interpreted as killing federalism. Their view was that that federalism was so embedded in the fabric of America that they didn’t need little parchment barriers, like how senators were elected.

You can argue over the extent to which the 17th Amendment did that. But it’s quite clear that they did not expect that they were killing federalism. And they did. They got rid of the last vestige of federalism. So, you’d have to ask about the intended and unintended consequences. I think repealing the 17th Amendment might be a good one. I think a balanced budget amendment, to the extent it is enforceable, might be a good one that would also have unintended consequences. The larger point is, I’ve learned enough epistemic humility, and I’ve learned enough talking to other people who think they have a silver bullet where they haven’t thought through all the unintended consequences, that I’m very reluctant to advance my own candidates without giving it a lot of thought.

Not until I have sufficient degree of confidence, once all the intended and unintended consequences are added up, am I going to say, “I got that one right.” I guess that is another non-answer. It’s something I always think about. I tend to be a tinkerer on these things rather than a sweeping reformist, precisely from that perspective that it’s so hard to anticipate all the unintended consequences of changing one piece of the fabric, pulling on one string, and the way that might unravel in ways that we don’t anticipate later on.

MS: Yeah, it is definitely easier to foresee the good in changes than the bad.

PZ:That’s right.

CS: Well, we just want to thank you so much for your time and for your great answers.

PZ: Well, thank you guys. Good talking with you.