On May 12, 1912, the Seventeenth Amendment, replacing indirect election of the U.S. senators by state legislatures with direct election by the people, was approved by the Congress; it was quickly ratified by the requisite three-fourths of the state legislatures in less than eleven months and declared to be a part of the Constitution on May 31, 1913. 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 36 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.
By altering how the Senate was elected, the Seventeenth Amendment 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 protect the interests of states as states and to oppose measures that would transfer what The Federalist No. 39 called the “inviolable and residuary sovereignty of the states” to the federal government. This understanding was perfectly captured during the Connecticut Ratifying Convention by Oliver Wolcott, who noted that “[t]he Constitution effectually secures the states in their several rights. . . . The Senate, a constituent branch of the general legislature, without whose assent no public act can be made, are appointed by the states, and will secure the rights of the several states” (http://www.constitution.org/rc/rat_ct.htm). The consequences of the ratification of the Seventeenth Amendment on federalism, however, went completely unexplored, and the people, in their desire to make the Constitution more democratic, inattentively abandoned what the framers regarded as the crucial constitutional means for protecting federalism.
| 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.
Four factors explain why the states would be so eager to ratify an amendment that removed the principal structural means of protecting the original federal design and the interests of the states as states. The first was legislative deadlock over the election of senators brought about when one party controlled the state assembly or house and another the state senate. From 1885 to 1912, there seventy-one such legislative deadlocks, resulting in seventeen senate seats going unfilled for an entire legislative session or more. (Deadlock was most evident and embarrassing in Delaware; it was represented by only one senator in three Congresses and was without any representation at all from 1901 to 1903.) These protracted deadlocks often led to the election of “the darkest of the dark horse” candidates, occasionally deprived the affected states of representation in the Senate, always consumed a great deal of state legislative time that was therefore not spent on other important state matters, and powerfully served to rally the proponents of direct election.
A second factor was the political scandal that resulted when deadlocks were occasionally loosened by the lubricant of bribe money. Two of the most infamous cases involved the elections of Montana Senator William A. Clark in 1899 and Illinois Senator William Lorimer a decade later. Clark confessed to a “personal disbursement” of over $140,000 (over $3.2 million in 2005 dollars) to the legislators of Montana and resigned his seat during floor deliberations of a unanimous Senate committee report recommending his expulsion on the grounds that he was not “legally elected” since over half of his majority in the state Senate (eight of fifteen) had been obtained through bribery. Lorimer, a dark-horse candidate acceptable to both parties, was elected in 1909 by a bipartisan coalition in the Illinois legislature, thereby breaking a protracted stalemate; however, a year later, the Chicago Tribune broke the story of how four state legislators were bribed to change their vote on his behalf, and in 1912, nearly halfway through the completion of his term, Lorimer was expelled by the Senate. Instances of bribery and corruption were, in truth, few in number. Of the 1,180 senators elected from 1789 to 1909, corruption was proved to be present in only seven cases. Nonetheless, these instances were much publicized and proved crucial in undermining support for the original mode of electing senators.
A third factor, closely related to the second, was the growing strength of the Populist movement and its deep-seated suspicion of wealth and influence. It presented the Senate as “an unrepresentative, unresponsive ‘millionaires club,’ high on partisanship but low in integrity” (Kyvig 1996, 209). In the House, proponents of direct election proclaimed a need to “awaken . . . in the Senators . . . a more acute sense of responsibility to the people.” And in the Senate, they proclaimed the Senate to be “a sort of aristocratic body—too far removed from the people, beyond their reach, and with no especial interest in their welfare” (“Election of Senators”).
When Populism waned, Progressivism waxed in its place, providing a fourth (and perhaps the decisive) factor: the Progressives believed in “the redemptive powers of direct democracy” and were convinced that the cure for all the ills of democracy was more democracy. Their goal was, as Woodrow Wilson proclaimed in his 1912 campaign book The New Freedom, for government to be not only “of, by, and for” the people, but also “through the people” (Wilson, 1913, 55).
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, in contrast with their legislatively elected predecessors, have fewer family ties to Congress, 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. Behaviorally, House members are now more likely to seek a seat in the Senate and to do so with less tenure in the House. And, institutionally, the states are now more likely to have a split Senate delegation, and the Senate now more closely matches the partisan composition of the House.
Jay S. Bybee, “Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment,” Northwestern University Law Review 91 (1997): 500–72; Sara Brandes Crook and John R. Hibbing, “A Not-So-Distant Mirror: The Seventeenth Amendment and Congressional Change,” American Political Science Review 91 (December 1997): 845–53; “Election of Senators,” House Reports, 50th Cong., 1st Sess., No. 1456, 2. 663; “Fragment of the Debates in the Convention of the State of Connecticut on the Adoption of the Federal Convention,” January 4, 1788; David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995 (Lawrence: University Press of Kansas, 1996); William H. Riker, "The Senate and American Federalism," American Political Science Review 49: 2 (June 1955): 452-469; Ralph A. Rossum, Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy (Lanham, MD: Lexington Books, 2001); Woodrow Wilson, The New Freedom: A Call for the Emancipation of the Generous Energies of the People (New York: Doubleday, 1913); and Todd J. Zywicki, “Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and Its Implications for Current Reform Proposals,” Cleveland State Law Review 45 (1997): 165–234.
Ralph A. Rossum
Last Updated: 2006