Interview with Professor David Schleicher

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 Schleicher is a law professor at Yale Law School and is an expert in election law, land use, local government law, federalism, state and local finance, municipal bankruptcy, and urban development. His work has been published widely in academic journals, including the Yale Law Journal and the University of Chicago Law Review, as well as in popular outlets like The Atlantic and Slate. The transcript of this interview has been lightly edited for clarity.

Clay Skaggs: We know there are a lot of theories as to why the 17th Amendment came about, and we know you have an interesting one. Why do you think it came about? Was it because of the nationalization of party issues or was it an increasing call for democracy?

Professor David Schleicher: So, like any epochal political change it has many parents. There are a lot of forces that come together to create something like a constitutional amendment. It was a heady time during this period when the form of government was very much on the table; you saw across lots of types of governments and lots of types of change in the form of government. This is the period when you see cities moving from directly elected mayors to counsel manager systems. You saw the fights over one-house legislatures like you see in Nebraska. You saw all sorts of big debate about the proper form of government in a way that’s kind of hard to imagine these days. But one aspect of this debate was a worry about the problems of state legislatures. This had a couple of dimensions. A lot of the public debate was about corruption in state legislatures. State legislatures were seen as kind of owned by monopolies. That’s the traditional story people tell about the 17th Amendment, the idea that it would take senatorial elections away from the smoke-filled rooms and into the light of general elections. 

What my scholarship has added to this is that there was something else going on. There was an increasing realization that senatorial election by state legislatures had eclipsed state politics. In the period leading up to the rise of the movement for direct election you start seeing something called the public canvas. This is a situation in which candidates for Senate would run on behalf of their state legislative candidates. Famously Abraham Lincoln and Stephen Douglas were running for Senate. You guys may yourself may have participated in Lincoln-Douglas debates. Well, they weren’t on the ballot. There are just a bunch of state legislators on the ballot who are then going to vote for them. They’re voting for Lincoln or Douglas expansion of slavery or not. This had a destabilizing effect on state politics in that what state legislators did was increasingly unimportant to their electoral chances. State democracy was in eclipse. This was something that people on the floor of the Senate put as one of the arguments, not the only argument, but among the arguments for direct election. It would allow voters and state elections to focus on whatever it is the state is doing. So again, think about that Illinois election. Chicago during that election is about to take off and become the fastest growing city in American history. Imagine you’re voting in 1858 for state legislature, knowing that you are going to choose between two legends, Lincoln and Douglas. Are you voting on who is most efficiently building the road between Chicago and Springfield? It’s a ridiculous idea, right? You’re voting on this big question of national politics. The fact that state legislatures were choosing senators meant that no one was paying attention to what it was state legislators did. Again, there were a lot of things going on, but that was one piece of the puzzle.

Michael Samaritano: In the 110 years since, we’ve seen many people praise the 17th Amendment and others decry it for its effects on federalism. It’s very tough obviously to distill the impact of the 17th Amendment when you have all these other changes going on in that period. But, to the extent that you can, do you think that the 17th Amendment fulfilled its purpose, and what have been some of its other effects since?

DS: So, you could imagine the effect of the 17th amendment in two directions, one is on states and the other one is on the Senate. In terms of its effect on states, state legislative politics and state politics generally have been dominated by national politics to a great deal today. So, the 17th amendment surely didn’t save state politics from their infection by national politics. Again, if you’re voting for a state legislator today, you’re largely doing so because of your support for President Trump or President Biden. I think [a repeal of the 17th amendment] would make it worse for what it’s worth. And I think that there’s at least some suggestive evidence to why that’s the case.

But on its effect on federalism, it didn’t save state legislatures. Political scientists call this effect of federal politics on state politics making state elections second order. The degree of how second order state elections are has changed over time. So, it’s not a single path between now and more than a hundred years ago. The second thing you could look at is the effect it’s had on the Senate. Again, here it’s a little less than perfectly clear, not just because a lot of other things were going on, but because states had effectively gotten rid of the 17th Amendment before the constitutional amendment. Not all of them, but a lot of them got rid of it either through the public canvas and then most dramatically by what is called the Oregon system, which was a system in which state legislators were effectively bound to support the winner of a non-binding referendum. 

When you combine all these things together, it’s a little hard to see what the effect is. The one big thing it did do is that state legislatures were wildly not equipopulational. This is before Baker versus Carr and Reynolds versus Sims, which required legislative districts to be equipopulational or roughly so, that is to say, to have the same number of people in each district. In the period before the 17th Amendment, this gave a huge advantage to the rural districts because the rural seats had way more state legislatures than they had people. In states that hadn’t adopted something like the Oregon system, this gave a huge advantage to politicians supported by rural voters. Notably, for instance, Douglas wins the 1858 Senate election. But Lincoln probably got more votes. It’s a little hard to tell, but it seems like more voters supported Lincoln than supported Douglas.

Those are the two things it did. Did this, with the 17th Amendment, have the intended effects? Well, its effects are a little hard to see mostly because it had ceased to exist before it was formally changed by a constitutional amendment.

CS: Definitely. I want to ask you about the second-degree nature of state legislatures and state politics. You said there were multiple forces responsible for the change over time in the degree of their second-degree nature. What are some of those other forces?

DS: I’d say a small percentage of the reason is something that’s a lot like the 17th Amendment. State legislatures still controlled districting. This cycle, the state legislatures are going to do a whole bunch of redistricting of congressional seats. If you care about Congress, more than you care about state legislatures, you’re going to vote in order so that they can gerrymander and make that party win. But the bigger effects are that voters just don’t know very much about state legislatures. The little information they have is party endorsement. So ask yourself, do you know who your state legislator is? Seriously.

Most people have no idea who their state legislators are and they don’t know anything about what’s going on in the state legislature. This is itself a product of a few forces. One is, probably the most notable, the change in the media environment. People read the New York Times or watch Fox News or whatever. Those are national media. We’ve seen a huge decline in local media. This has meant a huge decline in attention to state and local politics. There are other forces, but that’s one of them. Another big one is the kind of increasing tribalization of the parties, in the sense that Democrats and Republicans hate each other and don’t want their kids to marry each other.

This makes focusing on what the state legislature is doing seem a little bit beside the point. All of these forces have conspired together to make state legislatures lower second order than they used to be. I think that repealing the 17th Amendment would be icing on the cake. Occasionally state politics becomes important enough or people will be famous enough that people will burst through. You can see this in the fight in Wisconsin over labor union rights that caused a huge number of people to storm the state capitol. It became such a big story and was such a big deal that the next state legislative election seemed to have some kind of independent, responsive features.

And further in state politics, we see that governor races often have these independent features. The governors themselves are somewhat famous. So you can see in Massachusetts, which has had a Democratic legislature for more than a hundred years, and it’s not close, but it has had Republican governors all the time because the Republican governors can be famous enough to kind of break through the party. To sum this up, state legislative elections today are extremely second order. This has been caused by a variety of forces about both national politics and about the kind of media environment.

MS: One of the other criticisms that’s often brought up among those who support a repeal for the 17th Amendment is that it obscures the original purpose of the Senate as being this kind of aristocratic check on the House, and it makes it instead just a smaller House that has more media attention. And I’ll throw this in with the repeal question. Do you think that is a valid criticism? And do you think that a repeal would have any effect on this or that at this point the role of the Senate is already set in stone?

DS: I think a repeal would have nearly no effect on who served in the Senate. It will have an effect on which party wins the elections, but in terms of the quality of officials, are we going to start electing philosopher senators or something? No. And the reason is that you’d see the public canvas emerge basically immediately, and the candidates would choose the state legislators rather than the other way around, and the state legislators would increasingly look like the electoral college. So you would run with a slate of state legislators in the state legislative primary, and everyone would be associated with them. So, I think, if anything, what you’d see is the turning of state legislators into pure agents of senators, and particularly hacking types.

Maybe they would choose philosophers, but I think the effect on who served in the Senate would be pretty small. I think the effect on who wins the Senate elections would be enormous. So, this is the reason why I think most people who support a repeal of the 17th Amendment do so If they’re honest with themselves. It would seem to be a huge benefit for Republicans. The reason this is the case is that it is a universal cross-national phenomenon that the left-wing party is extremely dominant in big cities. This is true in New York. It’s true in Los Angeles. It’s true in London. It’s true in Paris and so on.

The effect of this is not only that the left-wing party in all of those cities is dominant, it’s extremely dominant. So you see 90/10 districts or that kind of thing inside cities. The effect of this is that if you have geographically defined districts, as opposed to a proportional representation system, you don’t need to be an evil mastermind doing gerrymandering to do this. If you just drew square districts it would result in extremely one-party dominant districts and then in all the other districts, you see a spread. So the effect of this is that Republicans do much better in districted elections than Democrats do.

And this is true by the way, again, in England, and any other country that uses districts as well. The effect of more left-leaning people moving into cities in extreme densities or staying in cities is that state legislatures are better for Republicans or better for the right-leaning party than a popular vote system is, and by a pretty large margin. Then if you throw on top of that gerrymandering, it can be really, really big differences. And to the extent that we chose senators through state legislative districts, this would be a huge gain for Republicans. The Senate itself is not a very lowercase ‘d’ democratic institution because of the differences between states, and it has a pretty substantial lean towards Republicans as a result of the states allocating senators. Moving to state legislative choice of senators would make that lean extraordinarily large. If you like that kind of thing, then I could see why you’d support a state legislative appointment on the grounds that it’s good for one team. 

As a matter of kind of institutional design or democratic theory, it’s kind of hard to see the justification that way. We oughtn’t create institutions that insulate them from preferences especially that do so in a slanted way. You could imagine institutions that are designed to isolate from preferences in a time lag sort of way, which the Senate also has of course, through its six year terms. But it’s not. It’s very hard to justify an institution that would have that large a political bias.

CS: Speaking of districting and having a positive effect for one party, I’m curious to hear your views on the Electoral College. I know the last couple of elections there’ve been calls to repeal the Electoral College. How do you think it compares with the 17th Amendment?

DS: In terms of the ways it can nullify majority preference, the Electoral College is a small problem relative to other institutions. The Electoral College is, as far as I’m concerned, a basically indefensible institution. There’s no real sense to it. We’ve long moved towards an understanding of presidential elections as national, and the defenses people give for the Electoral College are, I think, pretty late. So it’s like, otherwise people would just focus on big cities as if Philadelphia wasn’t a big city or Houston in Texas is now the textbook competitive state. Isn’t a big city. It makes no sense. It’s not like candidates campaign in Wyoming or Vermont. It has a relatively modest effect. It happens to be the case that in the last couple of elections, the Electoral College bias has resulted in a winner who didn’t win the popular vote.

And that’s bad. But compared to the internal bias created by the Senate or even the House, it’s actually a less biased institution and can flip pretty easily. There have been periods in the last 20 years where the Electoral College has been good for Democrats. It’s a little more variable in its party lean, whereas the Senate is extremely biased towards rural areas and currently that is the effect of being extremely biased towards Republicans. The House is a little biased towards Republicans because of this districted effect that I talked about. The electoral college is quite stupid. But in terms of its effect on majoritarianism, if you think of majoritarianism as a value and you could have other values, it is less bad than the existence of the US Senate, and it is much less bad than the existence of the US Senate with the repeal of the 17th Amendment. You get to a period where the Senate would be extremely far away from majority preference, and that’s not a healthy place for a democratic institution.

MS: Speaking of these changes you’d like to see to what you perceive as an antiquated system, what would be one amendment that you would pass if you had complete control? Would it be the abolition of the Electoral College, or would it be something else?

DS: Good question. I don’t know. I don’t if I could pick one. If the problem is the allocation, the US Senate itself is a huge problem. You can’t do that through amendment. It is a hard question. I’d have to think a little bit harder about it. You could imagine thinking that the right answer is something of a completely different type of reform. I think you could make a case for a constitutional right to vote being an amendment, but I don’t know. One of the great lessons you get from studying the role of academics in politics is that we’re pretty decent at commenting on things, but you shouldn’t trust us as political leaders. It doesn’t end well often. So, I don’t have an answer.

CS: One final question is with this recent election, we saw the results of the election end up in the hands of the Senate, and we saw seven senators object without evidence for voter fraud. Some people say that if it wasn’t directly elected, the Senate would be less prone to democratic whims, and maybe this would not have happened. Do you think that’s a valid argument at all?

DS: So, no. It’s not like they’d be independent of democracy. They have to come from somewhere, they’d be responsive to someone. There was a debate early in the history of the Senate about whether state legislatures should have the power of instruction, whether the state legislature should have the power to send instructions saying “You must vote yes or you must vote no.” Okay, they rejected this in the constitutional design. And this left the states with actually little control over senators overall, pre- and post-17th Amendment. The senators have six-year terms. They can do as they please. So they’re more independent of popular opinion than the House in that way. But it is a mistake to think that appointees are independent. Again, they’d be up for reelection just of a different type if you repeal the 17th Amendment. In some people’s imagination they just go before the state legislators and the state legislature would deliberate.

But of course, what they would do is they would run and get their candidates elected to state legislature. So, again, it would be rubber stamped on. And further, one of the things that I think is funny about this is that there’s a huge question in political science about whether independent officials just follow the election returns also. There’s a debate: is the Supreme court a majority institution? People go back and forth. It’s not super clear. So, in this context that you gave, would they have been more or less likely to certify the results of the presidential election? You could tell a story going in either direction. Maybe they’re being whipsawed by their primary voters, and that’s why they voted against certification of what was clear. Or maybe if they didn’t have to face voters, they would’ve said “YOLO, I wish Trump won” and they would’ve done it. Who knows. Once you start at any specific, it’s a little hard to game out. Other than the creation of this political bias and this effect on state legislatures, the Senate would probably be pretty similar to what we see today.

CS: Awesome. That’s all we have. Thanks so much for your time.

MS: Thank you.

DS: Thanks guys.