Constitution Daily

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The controversy over the direct election of Senators

April 8, 2016 by Jonathan Stahl

 

Today marks the 103rd anniversary of the ratification of the 17th amendment, which fundamentally altered the way that United States Senators are elected. The amendment, which invalidated Article 1, Section 3’s mandate that U.S. Senators were to be elected by state legislatures, empowered the electorate to pick  Senators based on a statewide popular vote.

SenateLink: Read The 17th Amendment

A crowning achievement of the Progressive movement and a departure from the vision of the Founding Fathers, the ratification of the 17th amendment has a rich history and is salient today as recent critiques of the amendment have been attracting attention in the national media.

At the Constitutional Convention in 1787, the Founders were guided by, among other powerful ideas, the fear of the potentially tyrannical, harmful powers of a democratic majority. The proposal that United States Senators should be elected by state legislatures, rather than democratic majorities, was inspired by this fear and was exceedingly popular among the delegates, becoming one of “the few non-controversial decisions reached by the Convention.”

Only James Wilson pushed back against Article 1, Section 3, and he fought for the direct election of Senators, but after the finished Constitution was sent to the states hardly any criticism was launched about the provision.

In 1826, 87 years before the eventual ratification of the 17th amendment, the first proposal to change to a popular vote system was introduced in the House of Representatives. The amendment failed to gain traction nationally, but interest in the idea was revived as a potential solution to what those in the Progressive movement saw as systemic problems with the United States Senate.

Activists pointed to high-profile cases of bribery of state legislators in exchange for Senate seats, the anti-democratic power of party machines in the selection of Senators; extended seat vacancies because legislatures were unable to select a Senator; and other dysfunctional features of Senate elections that they pinned on the selection process. By the 1880s, national support for a change to the popular election of Senators was growing, with the proposal being especially popular in western states, which had a tradition of valuing direct democratic participation.

Progressive reformers realized by the beginning of the 20th century that the proposed amendment had little chance of being ratified through congressional action under the current circumstances. They turned their attention to the states and convinced state legislatures to pass resolutions calling for an Article V convention, which could be held if two-thirds of the states called for one. As more and more states passed bills calling for a convention, Congress felt pressure to act and sent the 17th amendment to the states for ratification in 1912.

It took less than a year for three quarters of the states to ratify the amendment, with Connecticut being the 36th to pass it on April 8th, 1913. The 17th amendment was one of many Progressive legislative and constitutional victories in 1913, along with the ratification of the 16th amendment (which legitimatized the federal income tax), and the passage of the Federal Reserve Act, which created the national central bank that exists today.

The debate over merits of the 17th amendment and whether it mitigated or exacerbated the problems it aimed to fix is not over, however, and has been reinvigorated in recent years by conservative critics.

These critiques are motived by what commentators see as a trampling on states rights and an unchecked expansion of federal power that was caused by the 17th amendment. The detractors who are calling for a repeal of the amendment, like right-wing radio talk show host Mark Levin, assert that the current electoral set up ensures that Senators are more influenced by the wants and needs of special interests groups who fund their elections rather than the states and the electorate.

Other high profile conservative voices, like Senators Ted Cruz and Mike Lee, Governor Rick Perry, and the late Justice Antonin Scalia have expressed doubts about whether the 17th amendment has achieved its stated goals. Furthermore, in February 2016, the Utah State Senate, which refused to pass the amendment in 1913, passed a resolution calling on members of Congress to spearhead a repeal effort of the amendment.

These critiques have been challenged, however, with some remarking that a repeal would further erode federalist principles. These defenders of the status quo assert that a repeal would simply reduce state house and senate elections to proxy elections for United States Senators, and it would diminish local lawmaker’s incentives to focus on important local issues. And while Utah called for a repeal in February, other states, like Delaware, Maryland, and Rhode Island, have affirmed their support for the 17th amendment by ratifying it within the past five  years.

While some praise the 17th amendment as an enduring victory for democracy and good governance, others have mounted recent efforts to challenge that narrative. The 103rd anniversary of the ratification of the 17th amendment then should prompt further discussion about the amendment, and provide a historical perspective of what has become a hallmark American electoral institution.

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