Exactly what productive purpose do law profs serve anyway
In a typical orgy of self-congragulatory masturbation by law professors, Volokh argues that John Dean is right on the 17th amendment. The argument is based in defending the Supreme Court’s decisions rolling back federalism.
Too bad that the deciding factor for the Court is ideology and not federalism or Volokh and Dean would have a case. But, as usual, neither has done a serious review of the literature with one of the better pieces available in Publius Summer 2000:
Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases
William R. Lowry and Brady Baybeck
Law professors are notoriously unable to handle the scientific method so this shouldn’t be a surprise. Or to look outside their narrow fields in the law for evidence. The authors demonstrate that the federalism cases are decided on by right-left ideology and that when one controls for that, federalism as an issue is not significant. Who’d a thunk it?
Volokh also makes the insinuation that moving Senatorial selection back to the state legislatures would solve campaign finance problems is amazingly divorced from reality. States, with a few notable exceptions, are far worse in monitoring campaign cash. The actual effect would be more likely to create insider candidates that are more beholden to organized interests. Peter Fitzgerald could never happen in such a system. Neither could Russ Feingold or John McCain or any other independent thinker in the Senate. If one wants to improve party discipline this is a good idea. However, it wouldn’t necessarily make the system any more friendly to states except in the awarding of pork. Mike Madigan, your US Senator—WOOOOOHOOOOOO!
Of course, given Mississippi has Democratic chambers, it would be a convenient way to dispose of Lott and Cochran.
Now to the core of the argument all one has to consider (which was done in while passing the 17th amendment) is what influences state legislators? Reelection and in achieving that they would seek to please organized interests. What a big improvement that would be! Maybe we can just start sponsoring the Midwestern Senators by ADM and add NASCAR like patches to their suits. Direct election at least provides an election to check the influence of organized interests. We see this rather frequently in Senatorial elections especially. This is why we generally see the Senate also take a middle road more often than the House. Electing Senators in State Legislatures ties them much closer to organized interests.
Much of the argument rests on what the framers originally wanted and little analysis is given to what such an institutional arrangement would produce in today’s environment. This is typical of right wing law professors. They simply don’t have the rigorous training of social scientists and historians. Instead they try and argue about the number angels on the head of a pin when they should be doing serious institutional analysis of reforms. Senators approximate the average of a state and so are center oriented for their state on average. State legislatures would not produce the same result generally, instead choosing candidates from the center of the party in power.
State legislature selection of Senators would also result in greater ties to interest groups because the average person doesn’t have a lobbyist, but the average organized interest does. It is great to argue pluralism will take care of this, but small disorganized groups are less likely to be potential swing votes, and hence less likely to have attention paid to them.
Finally, it is very doubtful that such a change would lead to more respect for federalism. State legislatures aren’t going to choose based on views of federalism, they are going to choose on what gets them reelected and that is how well the Senator is going to bring back pork for his or her supporters.
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