Amendment XVII to the U.S. Constitution

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The Seventeenth Amendment in the National Archives

The Seventeenth Amendment (Amendment XVII) to the United States Constitution established direct election of United States Senators by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which senators were elected by state legislatures. It also alters the procedure for filling vacancies in the Senate, allowing for state legislatures to permit their governors to make temporary appointments until a special election can be held. Under the original provisions of the Constitution, senators were elected by state legislatures; this was intended to ensure that the Federal government contained representatives of the states, and also to provide a body not dependent on popular support that could afford to "take a more detached view of issues coming before Congress."^[1] However, over time various perceived issues with these provisions, such as the risk of corruption and the potential for electoral deadlocks or a lack of representation should a seat become vacant, led to a campaign for reform.

Reformers tabled constitutional amendments in 1828, 1829 and 1855, with the issues finally reaching a head during the 1890s and 1900s. Progressives, such as William Jennings Bryan, called for reform to the way senators were chosen. Elihu Root and George Frisbie Hoar were prominent figures in the campaign to maintain the state legislative selection of senators. By 1910, 31 state legislatures had passed motions calling for reform. By 1912, 239 political parties at both the state and national level had pledged some form of direct election, and 33 states had introduced the use of direct primaries. With a campaign for a state-led constitutional amendment gaining strength, and a fear that this could result in a "runaway convention", the proposal to mandate direct elections for the Senate was finally introduced in the Congress; it was passed on May 13, 1912, ratified by the states within a year and formally declared an amendment to the Constitution on May 31, 1913 by Bryan, in his role as Secretary of State, becoming the Seventeenth Amendment.

Critics of the Seventeenth Amendment claim that by altering the way senators are elected, the states lost any representation they had in the Federal government and that this led to the gradual "slide into ignominy" of state legislatures,^[2] as well as an overextension of Federal power and the rise of special interest groups to fill the power vacuum previously occupied by state legislatures. In addition, concerns have been raised about the power of governors to appoint temporary replacements to fill vacant senate seats, both in terms of how this provision should be interpreted and whether it should be permitted at all. Accordingly, noted public figures have expressed a desire to reform or even repeal the Seventeenth Amendment.

Text

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.^[3]

Background

Original composition

James Wilson, the only member of the Constitutional Convention who supported electing the United States Senate by popular vote.

Originally under the Constitution, each state legislature elected its state's senators for six-year terms.^[4] Each state, regardless of size, is entitled to two senators as part of the Connecticut Compromise between the small and large states.^[5] This contrasted with the House of Representatives, a body elected by popular vote, and was described as an uncontroversial decision to make; James Wilson was the sole advocate of popularly electing the Senate and his proposal was defeated 10–1.^[6] There were many advantages to the original method of electing senators. Prior to the Constitution, a federal body was one where states effectively formed nothing more than permanent treaties, with citizens retaining their loyalty to their original state. However, under the Constitution the states were subordinated to a central government; the election of senators by the states reassured Antifederalists that there would be some protection against the swallowing up of states and their powers by an ever-expanding Federal government,^[7] providing a check on the power of the Federal government.^[8]

Additionally, the longer terms and avoidance of popular election turned the Senate into a body to "temper" the populism of the House. While the Representatives existed in a two-year direct election cycle, the senators could afford to "...take a more detached view of issues coming before Congress."^[1] State legislatures also retained the theoretical right to "instruct" their senators to vote for or against proposals, giving them both direct and indirect representation in the Federal government.^[9] The Senate also provided formal bicameralism, with the members of the Senate and House responsible to completely distinct constituencies; this helped defeat the problem of the Federal government being subject to "special interests."^[10] Members of the Constitutional Convention also saw it as an equivalent to the House of Lords, containing the "better men" of society; it was hoped that they would provide more coolness and stability than the House of Representatives due to the senators' status.^[11]

Issues

According to Jay Bybee, those in favor of popular elections for senators felt that there were primarily two issues caused by the original provisions: legislative corruption and electoral deadlocks.^[12] In terms of corruption, the general feeling was that senatorial elections were "bought and sold", changing hands for favors and sums of money rather than because of the competence of the candidate. Between 1857 and 1900, the Senate investigated three elections over corruption. In 1900, for example, William A. Clark had his election voided after the Senate concluded that he had bought eight of his fifteen votes in the Montana legislature. However, Bybee and Todd Zywicki believe this concern was largely unfounded; there was a "dearth of hard information" on the subject,^[13] and in over a century of elections, only 10 were contested with allegations of impropriety.^[14]

Electoral deadlocks were another issue. Because state legislatures were charged with deciding who to appoint as senators, the system relied on them being able to agree. Some states could not, and thus delayed sending representatives to Congress; in a few cases, the system broke down to the point where states completely lacked representation.^[15] Between 1891 and 1905, 46 elections were deadlocked, in 20 different states;^[14] in one extreme example, a Senate seat for Delaware went unfilled from 1899 until 1903.^[16] The business of holding elections also caused great disruption in the state legislatures, with a full third of the Oregon legislature choosing not to swear the oath of office in 1897 due to a dispute over an open Senate seat. The result was that the legislature was unable to convene for 53 days, and was forced to disband and call a new election.^[16]

Zywicki again argues that this was not a serious issue. Deadlocks were a problem, but they were the exception rather than the norm; many legislatures did not deadlock over elections at all. Most of those that did in the 19th century were the newly-admitted western states, which suffered from "inexperienced legislatures and weak party discipline...as western legislatures gained experience, deadlocks became less frequent." While Utah suffered from deadlocks in 1897 and 1899, they became "a good teaching experience," and Utah never again failed to elect senators.^[17] Another concern was that when deadlocks occurred, state legislatures found themselves unable to conduct their normal business; James Christian Ure, writing in the South Texas Law Review, notes that this did not in fact occur. In a deadlock situation, state legislatures would deal with the matter by holding "one vote at the beginning of the day—then the legislators would continue with their normal affairs".^[18] There was also a feeling that state legislative elections themselves had become dominated by the business of picking senators, with legislators elected based on their intentions in senatorial elections rather than their opinions on local issues.^[19]

Calls for reform

William Jennings Bryan, who campaigned for the election of U.S. senators by popular vote

Calls for a constitutional amendment regarding Senate elections started in the early 19th century, with Henry R. Storrs in 1826 proposing an amendment to provide for popular election.^[20] Similar amendments were tabled in 1829 and 1855, with the "most prominent" proponent being Andrew Johnson, who raised the issue in 1868 and considered the idea's merits "so palpable" that no additional explanation was necessary.^[21] The 1860s also saw the first major Congressional disputes over the issue, with the House and Senate voting to veto the appointment of John P. Stockton to the Senate due to his approval by a plurality rather than a majority. In reaction, the Congress passed a bill in July 1866 that required state legislatures to elect senators by an absolute majority.^[21]

By the 1890s, support for the introduction of direct election for the Senate had substantially increased, and reformers^[who?] worked on two fronts. On the first front, the Populist Party incorporated the direct election of senators into its Omaha Platform, adopted in 1892.^[22] In 1908, Oregon passed the first law that based the selection of U.S. senators on a popular vote. Oregon was soon followed by Nebraska.^[23] Proponents for popular election noted that ten states already had non-binding primaries for Senate candidates,^[24] in which the candidates would be voted on by the public, effectively serving as advisory referenda instructing state legislatures how to vote;^[25] reformers campaigned for more states to introduce a similar method. On the second front, reformers worked towards a constitutional amendment, which was strongly supported in the House of Representatives but initially opposed by the Senate - Bybee notes that the state legislatures, who would lose power if the reforms went through, were supportive of the campaign. By 1910, 31 state legislatures had passed resolutions calling for a constitutional amendment allowing direct election, and in the same year ten Republican senators who were opposed to reform were forced out of their seats, acting as a "wake-up call to the Senate".^[26]

Reformers included William Jennings Bryan, while opponents counted respected figures such as Elihu Root and George Frisbie Hoar amongst their number; Root cared so strongly about the issue that, after the passage of the Seventeenth Amendment, he refused to stand for re-election to the Senate.^[12] Bryan and the reformers argued for popular election through highlighting perceived flaws with the existing system, specifically corruption and electoral deadlocks, and through arousing populist sentiment. Most important was the populist argument; that there was a need to "Awaken, in the senators...a more acute sense of responsibility to the people," which it was felt they lacked; election through state legislatures was seen as an anachronism that was out of step with the wishes of the American people, and one that had led to the Senate becoming "a sort of aristocratic body - too far removed from the people, beyond their reach, and with no special interest in their welfare".^[27]

Hoar replied that the people were both a less permanent and a less trusted body than state legislatures, and that moving the responsibility for the election of senators to them would see it passing into the hands of a body that "[lasted] but a day" before changing. Other counterarguments were that renowned senators could not have been elected directly, and that since a large number of senators had experience in the House, which was already directly elected, a constitutional amendment would be pointless.^[28] It was also seen as a threat to the rights and independence of the states, who were "sovereign, entitled...to have a separate branch of Congress...to which they could send their ambassadors". This was countered by the argument that a change in the mode in which senators were elected would not change their responsibilities.^[29]

Adoption

Elihu Root, one of only three figures noted to have considered the impact of the Seventeenth Amendment on federalism during the debates over its adoption.

By 1912, 239 political parties at both the state and national level had pledged some form of direct election, and 33 states had introduced the use of direct primaries.^[30] 27 states had called for a constitutional convention on the subject, with 31 states needed to reach the threshold; Arizona and New Mexico each achieved statehood that year (bringing the total number of states to 48^[31]), and were expected to support the motion, while Alabama and Wyoming, already states, had passed resolutions in favor of a convention without formally calling for one.^[32] To avoid a "runaway convention", in which unexpected or damaging amendments could be considered, the proposal to mandate direct elections for the Senate was finally introduced in the Congress; on May 13, 1912 it passed in the Senate by a vote of 64 to 24, with 4 not voting, and passed in the House by a vote of 238 to 39, with 110 not voting. Within a year it had been ratified by three quarters of the states,^[33] and was declared part of the Constitution by Secretary of State William Jennings Bryan on May 31, 1913, becoming the Seventeenth Amendment.^[34]

Ralph A. Rossum, writing in the San Diego Law Review, notes that the debate over the amendment's adoption lacked "any serious or systematic considerations of its potential impact on federalism...The popular press, the party platforms, the state memorials, the House and Senate debates, and the state legislative debates during ratification focused almost exclusively on expanding democracy, eliminating political corruption, defeating elitism and freeing the states from what they had come to regard as an onerous and difficult responsibility. The only three exceptions were Root, Hoar and Representative Franklin Bartlett."^[35]

The states listed in the following table ratified the Seventeenth Amendment on the date listed. Delaware's ratification occurred nearly a century after the passage of the amendment:^[36]

The following states did not ratify the Seventeenth Amendment

• Utah (explicitly rejected amendment^[37])
• Alabama
• Florida
• Georgia
• Kentucky
• Maryland
• Mississippi
• Rhode Island
• South Carolina
• Virginia

Effect

With the passage of the Seventeenth Amendment, the Senate ceased being elected by state legislatures, replacing it with a system of popular election; the number of senators remained set at two per state.^[38] The Amendment also altered the process for filling vacancies: under the original constitutional provisions, state legislatures filled vacancies when a senator left office unexpectedly; the Seventeenth Amendment provides that state legislatures can grant governors the right to make temporary appointments, which last until a special election is provided to fill the seat. The power to call such an election can also be granted to the governor.^[39]

Impact

Jay Bybee, who wrote that the Seventeenth Amendment has led to the gradual "slide into ignominy" of state legislatures.

Judge Bybee has argued that the Amendment has led to the gradual "slide into ignominy" of state legislatures, with the lack of a state-based check on Congress allowing the Federal government to supersede states.^[2] This was partially fueled by the senators themselves; he writes in the Northwestern University Law Review:

Politics, like nature, abhorred a vacuum, so senators felt the pressure to do something, namely enact laws. Once senators were no longer accountable to and constrained by state legislatures, the maximizing function for senators was unrestrained; senators almost always found in their own interest to procure federal legislation, even to the detriment of state control of traditional state functions.^[21]

Rossum, concurring, gives the New Deal legislation as an early example of the expansion of federal regulation.^[40] Ure agrees, saying that not only are senators now free to ignore the needs of their state, "they have incentive to use their advice-and-consent powers to install Supreme Court justices who are inclined to increase federal power at the expense of state sovereignty."^[41] Donald J. Kochan, for an article in the Albany Law Review, analyzed the effect of the Seventeenth Amendment on Supreme Court decisions over the constitutionality of state legislation. He found a "statistically significant difference" in the number of cases holding state legislation unconstitutional before and after the passage of the Seventeenth Amendment, with the number of holdings of unconstitutionality increasing sixfold.^[42]

As well as a decline in the influence of the states, Ure also argues that the Seventeenth Amendment led to the rise of special interest groups to fill the void; with state legislators replaced as the Senate's electorate by citizens, who were individually less able to monitor the actions of their senators, the senate became more susceptible to pressure from interest groups, who in turn were more influential due to the centralization of power in the Federal government; an interest group no longer needed to lobby many state legislatures, and could instead focus their efforts on the Federal government.^[43] Zywicki agrees with this, but attributes the rise in the strength of interest groups partially to the development of the US economy. The 20th century shifted economic growth to an interstate level, and with the rise of the financial power of a national rather than state-based market, the gains available to those who could tap into the market through the political process increased.^[44]

A comparison of the likely electoral results for the Senate if the Seventeenth Amendment had not been passed showed that it had "an immediate and dramatic impact on the political composition of the U.S. Senate"; if the Seventeenth Amendment had not been passed, the 1916 Senate elections, which saw the Democrats retain control of the Senate, would have actually seen the Republicans gain political control with 53 seats.^[45] Similarly, the Republican Revolution of 1994 would never have happened; instead, the Democrats would have controlled 70 seats in the Senate to the Republicans' 30.^[46]

Interpretation

In Trinsey v. Pennsylvania,^[47] the United States Court of Appeals for the Third Circuit was faced with a situation where, following the death of Senator H. John Heinz III of Pennsylvania, Governor Robert P. Casey had provided for a replacement and for a special election that did not include a primary.^[48] A voter and prospective candidate, John S. Trinsey Jr., argued that the lack of a primary violated the Seventeenth Amendment and his right to vote under the Fourteenth Amendment.^[49] These arguments were rejected by the Third Circuit, which ruled that the Seventeenth Amendment does not require primaries.^[50]

Another subject of analysis is whether statutes restricting the authority of governors to appoint temporary replacements are constitutional. Vikram Amar, writing in the Hastings Constitutional Law Quarterly, claims that Wyoming's requirement that its governor fill a senatorial vacancy by nominating a person of the same party as the person who vacated that Senate seat violates the Seventeenth Amendment.^[51] This is based on the text of the Seventeenth Amendment, which states that "the legislature of any state may empower the executive thereof to make temporary appointments". The amendment only empowers the legislature to delegate the authority to the governor and, once that authority has been delegated, does not permit the legislature to intervene. The authority is to decide whether or not the governor shall have the power to appoint temporary senators, not in what fashion he should do so.^[52] Sanford Levinson, in his rebuttal to Amar, disagrees. Levinson argues that rather than engaging in a textual interpretation, those examining the meaning of constitutional provisions should interpret them in the fashion that provides the most benefit, and that legislatures being able to restrict gubernatorial appointment authority provides a substantial benefit to the states.^[53]

Advocacy for reform

Due to the controversy over the impact of the Seventeenth Amendment, there has been advocacy for both reform and repeal of the Seventeenth Amendment. With the commencement of the Obama Administration in 2009, four sitting Democratic senators left the Senate for executive branch positions: Barack Obama (President), Joe Biden (Vice President), Hillary Rodham Clinton (Secretary of State), and Ken Salazar (Secretary of the Interior). Controversies developed about the successor appointments made by Illinois Governor Rod Blagojevich and New York Governor David Paterson. This created interest in abolishing Senate appointment by the governor.^[54] Accordingly, Senator Russ Feingold of Wisconsin and Representative David Dreier of California proposed an amendment to remove this power; Senators John McCain and Dick Durbin became co-sponsors, as did Representative John Conyers.^[54] The Tea Party movement has been at the forefront of the campaign to repeal the Seventeenth Amendment entirely, arguing that it would protect states' rights and reduce the power of the Federal government.^[55]

References

Bibliography

• Amar, Vikram David (2008). "Are Statutes Constraining Gubernatorial Power to Make Temporary Appointments to the United States Senate Constitutional Under the Seventeenth Amendment?". Hastings Constitutional Law Quarterly (University of California, Hastings College of the Law) 35 (4). ISSN 0094-5617. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1103590. 
• Bybee, Jay S. (1997). "Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment". Northwestern University Law Review (Northwestern University School of Law) 91 (1). ISSN 0029-3571. http://scholars.law.unlv.edu/facpub/350/. 
• Gold, Kevin M. (1992). "Trinsey v. Pennsylvania: State Discretion to Regulate United States Senate Vacancy". Widener Journal of Public Law (Widener University School of Law) 2 (1). ISSN 1064-5012. 
• Hoebeke, Christopher Hyde (1995). The road to mass democracy: original intent and the Seventeenth Amendment. Transaction Publishers. ISBN 1560002174. 
• Kochan, Donald J. (2003). "State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional". Albany Law Review 66 (1). ISSN 0002-4678. 
• Levinson, Sanford (2008). "Political Party and Senatorial Succession: A Response to Vikram Amar on How Best to Interpret the Seventeenth Amendment". Hastings Constitutional Law Quarterly (University of California, Hastings College of the Law) 35 (4). ISSN 0094-5617. 
• Novakovic, Michael B. (1992). "Constitutional Law: Filling Senate Vacancies". Villanova Law Review (Villanova University School of Law) 37 (1). ISSN 0042-6229. 
• Riker, William H. (1955). "The Senate and American Federalism". American Political Science Review (American Political Science Association) 49 (2). ISSN 0003-0554. 
• Rossum, Ralph A. (1999). "The Irony of Constitutional Democracy: Federalism, the Supreme Court, and the Seventeenth Amendment". San Diego Law Review (University of San Diego School of Law) 36 (3). ISSN 0886-3210. 
• Tushnet, Mark (2010). The Constitution of the United States of America: A Contextual Analysis. Hart Publishing. ISBN 9781841137384. 
• Ure, James Christian (2007). "You Scratch My Back and I'll Scratch Yours: Why the Federal Marriage Amendment Should Also Repeal the Seventeenth Amendment". South Texas Law Review (South Texas College of Law) 49 (1). ISSN 1052-343X. 
• Vile, John R. (2003). Encyclopedia of constitutional amendments, proposed amendments, and amending issues, 1789-2002 (2nd ed.). ABC-CLIO. ISBN 9781851094288. 
• Vile, John R. (2010). A companion to the United States Constitution and its amendments (5th ed.). ABC-CLIO. ISBN 9780313380082. 
• Zywicki, Todd J. (1994). "Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment". Oregon Law Review (University of Oregon School of Law) 73 (1). ISSN 0196-2043. http://mason.gmu.edu/~tzywick2/Oregon%20Senators.pdf. 
• Zywicki, Todd J. (1997). "Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and its Implications for Current Reform Proposals". Cleveland State Law Review (Cleveland-Marshall College of Law) 45 (1). ISSN 0009-8876. http://mason.gmu.edu/~tzywick2/Cleveland%20State%20Senators.pdf. 

External links

• NARA - The National Archives Experience: Seventeenth Amendment