The Seventeenth Amendment and the censure of Donald Trump

Sen. Rand Paul’s (R-Ky.) procedural maneuver challenging the jurisdiction of the Senate over a former president pretty much squelched any chance of convicting Donald Trump at his upcoming impeachment trial. Only five of the Senate’s 50 Republicans voted against Paul’s motion, making it highly unlikely that Democrats can attract the 17 Republican votes necessary to disqualify Trump from ever again holding a federal office. While asserting that the Senate indeed has jurisdiction – and with 55 votes in hand – the Democratic leadership will still proceed with the trial, but they can also see the writing on the rollcall. Key Democratic senators are therefore discussing the idea of censuring Trump as a fallback position. Even a censure resolution, however, will require 60 votes.

If there is any chance of picking up the necessary 10 Republican senators, it will be thanks to the Seventeenth Amendment to the U.S. Constitution. Before the Seventeenth Amendment was ratified in 1913, U.S. senators were chosen by their state legislatures. Now, of course, they must run in popular elections, and that can exert a moderating influence that has been all but eliminated in the House of Representatives. Only 10 Republicans – out of 211 – voted to impeach Trump in the House of Representatives. But five of 50 GOP senators – double the rate in the House – have already indicated a willingness to convict him. It is therefore still conceivable that enough Republican senators will put party affiliation aside and ultimately vote to censure the former president.

Extreme polarization and extensive gerrymandering have led to intense partisanship in many House delegations. As districts have become dependably safe, incumbents worry much more about primary challenges than general elections. Primaries, especially in off-years, typically have low turnouts that attract only the most committed voters. For Republicans, that means the primary electorate skews sharply to the right. We’ve ended up with extremists such as Georgia’s Marjorie Taylor Greene and Colorado’s Lauren Boebert, both of whom defeated staunchly conservative opponents who were still insufficiently right-wing for primary voters.

Senators, in contrast, must run in state-wide general elections, appealing to independents and swing voters. Winning the Republican primary does no good for candidates who are too radical for the broader electorate, as we have often seen in otherwise red-leaning states. Ask Kelly Loeffler (Georgia, 2020), Martha McSally (Arizona, 2018 and 2020), Roy Moore (Alabama, 2018), Todd Akin (Missouri, 2012), Richard Mourdock (Indiana, 2012) and Sharron Angle (Nevada, 2010).

The tempering effects of the general election are not inevitable. There will always be senators such as Ted Cruz (R-Texas) and Josh Hawley (R-Mo.). But we can thank the Seventeenth Amendment for placing a limit on that sort of overweening zealotry. The original Constitution’s rationale for legislative selection, under Article I, was that it would protect state sovereignty from encroachments by the new federal government. Perhaps it played such a role in the early days of the republic.

But that was before the emergence of political parties, the 24-hour news cycle and most significantly, surgically precise gerrymandering. Today, the legislatures in many states belong solidly to a single party, perhaps even more so than congressional delegations. Wisconsin, Michigan, Pennsylvania, and North Carolina all have elected Democratic governors, with the popular votes almost equally split in presidential elections, and yet, their legislatures are powerfully dominated by Republicans. In Wisconsin, for example, Democrats have won three of the most recent statewide elections, but the gerrymandered legislature favors Republicans by a huge margin of 80-50. If such firmly entrenched majorities were today empowered to choose U.S. senators, they would exercise the same strongly partisan prerogatives that have pushed GOP House members so disproportionately to the right.

The Progressive-era drafters of the Seventeenth Amendment were concerned about the capture of state legislatures by special interests, which in those days meant bankers, industrialists and holdover robber barons from the Gilded Age. Popular elections were seen as the way to place control of the Senate in the hands of the people. Unfortunately, there has been another capture today in many GOP dominated state legislatures: Primaries are the only meaningful elections, with candidates vying to outflank each other on the right.

In contrast, the Seventeenth Amendment has exerted a restraining influence in the Senate. Numerous Republican state legislators, and 126 House of Representatives members, submitted amicus curiae briefs in Texas’s bizarre Supreme Court lawsuit seeking to overturn the results of the 2020 presidential election. Not a single U.S. senator joined them. After the insurrectionist mob sacked the Capitol building, 139 Republican representatives still voted to reject the electoral votes of Pennsylvania or Arizona, about two-thirds of their caucus. Only seven of the 50 GOP senators did the same.

There has been a movement among conservatives to repeal the Seventeenth Amendment, but we need it now more than ever. After he lost the 2020 election, Trump believed, not without some reason, that Republican state legislatures would certify alternative electoral slates to keep him in the White House. Can there be much doubt that senators beholden only to those same state legislatures would vote for acquittal, if only out of self-interest?

Steven Lubet is Williams Memorial Professor at the Northwestern University Pritzker School of Law and the author of “The ‘Colored Hero’ of Harpers Ferry: John Anthony Copeland and the War against Slavery.”