The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.
This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.
–Amendment XVII
On May 12, 1912, the Seventeenth Amendment, providing for direct popular election of the Senate, was approved by the Congress; the requisite three-fourths of the state legislatures ratified it in less than eleven months. Not only was it ratified quickly, but it was also ratified by overwhelming numbers. In fifty-two of the seventy-two state legislative chambers that voted to ratify the Seventeenth Amendment, the vote was unanimous, and in all thirty-six of the ratifying states the total number of votes cast in opposition to ratification was only 191, with 152 of these votes coming from the lower chambers of Vermont and Connecticut.
Although state ratification of the Seventeenth Amendment came quickly and easily, congressional approval of the idea of popular election of the Senate did not.
The first resolution calling for direct election of the Senate was introduced in the House of Representatives on February 14, 1826. From that date, until the adoption of the Seventeenth Amendment eighty-six years later, 187 subsequent resolutions of a similar nature were also introduced before Congress, 167 of them after 1880. The House approved six of these proposals before the Senate gave its consent.
By 1912, Senators were already picked by direct election in twenty-nine of the forty-eight states. As Senator William E. Borah said in 1911, “I should not have been here [in the U.S. Senate] if it [direct election] has not been practiced, and I have great affection [for this system].” What happened is that the people in most of the states gradually turned to nonbinding primary elections to select their Senator; state legislators promised to vote for the Senator that the people had selected in this “advisory” election. This “advisory” election had real teeth because many state laws provided that candidates for state legislator had to sign pledges (which were placed on the ballot) that they would promise (or refuse to promise) to vote for the U.S. Senate candidate that the people had selected in their nonbinding election. If the state legislative candidate refused to sign the pledge, the people would vote against him, and so the Senate gradually became populated with people who were, in effect, selected by popular, direct election.
The Seventeenth Amendment was approved and ratified, it was said, to make the Constitution more democratic, (a word which does not appear anywhere in the Constitution).
Progressives argued forcefully, persistently, and ultimately successfully that the democratic principle required the Senate to be elected directly by the people rather than indirectly through their state legislatures. By altering the manner of election, however, they also altered the principal mechanism employed by the framers to protect federalism. The framers understood that the mode of electing (and especially reelecting) Senators by state legislatures made it in the self-interest of Senators to preserve the original federal design and to protect the interests of states as states (see Article I, Section 3, Clause 1).
This understanding was perfectly encapsulated in a July 1789 letter to John Adams, in which Roger Sherman emphasized that “[t]he senators, being eligible by the legislatures of the several states, and dependent on them for re-election, will be vigilant in supporting their rights against infringement by the legislative or executive of the United States.”
In addition to its impact on federalism, the ratification of the Seventeenth Amendment has also had demographic, behavioral, and institutional consequences on the Senate itself. Demographically, popularly elected Senators are more likely to be born in the states they represent, are more likely to have an Ivy League education, and are likely to have had a higher level of prior governmental service. In other words, popularly elected senators are more likely to be creatures of the political elite.
The Seventeenth Amendment, ratified in 1913, provided for the direct election of United States Senators, replacing the original method that had left the choice to state legislatures. Previously, state legislatures could choose Senators and fill vacancies at any time during a regular or special legislative session. After the ratification of the Seventeenth Amendment, it was recognized that the expense and inconvenience of election by popular vote made it necessary to schedule elections for Senators at regular intervals. To avoid the hardship to a state suffering a lack of representation pending a regular election, the Seventeenth Amendment also provided for methods of election or appointment to fill any unexpired term. (Once more giving lie to the idea that popular election makes senators more responsive to the will of the electorate).
The language and history of the clause indicate that the states have the power to balance conflicting goals of a speedy popular election versus the state’s interests in conducting elections on a regularized basis so as to maximize voter participation and minimize administrative expense.
The clause does not define when a vacancy exists.
During the 2000 election, the people of Missouri knowingly voted for the deceased Mel Carnahan for Senator. The governor of the state declared this election to have created a vacancy, which he filled by appointing Carnahan’s widow, Jean Carnahan, and then issued a writ of election for 2002. It remains an open question, however, whether the voters can create a Senate “vacancy” by knowingly voting for an ineligible candidate and allowing the governor to fill the position with an individual of his choice, as opposed to simply declaring the votes to be improper or “spoiled” ballots.
Are there drawbacks to direct election of senators?
The late Justice Anton Scalia wrote: “The 17th Amendment has changed things enormously,” Scalia said. “We changed that in a burst of progressivism in 1913, and you can trace the decline of so-called states’ rights throughout the rest of the twentieth century.”
The 17th Amendment was added at the height of the progressive era, when the government started telling us how to live.
Former Sen. Zell Miller explained that “instead of senators who thoughtfully make up their own minds, as they did during the Senate’s greatest era of Clay, Webster and Calhoun, we now have many senators who are mere cat’s paws for the special interests.” George Will wrote in a 2009 column that “the Framers established election of senators by state legislators, under which system the nation got the Great Triumvirate — Henry Clay, Daniel Webster and John Calhoun — and thrived.”
“States’ Rights” however is a misnomer. Properly viewed, governments do not have “rights.” State governments, like the federal government, have powers, and they derive their just powers from the consent of the governed. The arguments for the amendment at the time revolved around “special interests”. By 1890, they owned the state legislatures. Railroads, banks, mining companies and other corporations showered state officials with free passes, gifts, and outright bribes.
In 1906, journalist David Graham Phillips scored a publishing sensation with The Treason of the Senate, an expose of corporate influence that gave rise to the term “muckraker.” Phillips wrote that “the Senate is the eager, resourceful, indefatigable agent of interests as hostile to the American people as any invading army could be.” That was because “a man cannot serve two masters. The Senators are not elected by the people. They are elected by ‘the interests.'”
It seems as if 112 years later not much has changed except one further unnecessary trashing of the Founders’ original vision.
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