Archive for the ‘Direct Election of Senators’ Tag

How We Ended Up with Direct Election   1 comment

I’m not a fan of the 17th Amendment, so this is a hard topic to discuss dispassionately. For now, I don’t wish to discuss the merits of direct election of senators, but rather the process that was used to bring it about. The merits or lack thereof are a different topic, which I will deal with later.

After the Civil War, members of Congress occasionally suggested that states apply for a convention for proposing amendments, but there was little campaigning for one. I’m going to suggest that the Civil War pretty much cowed most states, even the northern ones, from asserting their rights, by sending a clear message that the federal government would put down by force any attempts at state sovereignty.

The Civil War ended the United States of America, a federation of diversity governed from the people through the states to the federal government and forced us toward a one-size-fits-all top-down national government in which the states were afraid to speak up for their rights. Those rights did not go away; they simply were no longer exercised.

It was nearly 40 years (about a generation, interestingly) before there was a wide-spread outcry for a states-application-for-convention movement. Those who had not lived through the Civil War felt a bit more comfortable asserting states rights once more. The national government couldn’t have that and, more importantly, significant and powerful special interest groups could not allow it.

It was the turn of the 20th century. Mankind tends to embrace change at the start of centuries. The progressive movement was gaining speed. If you remember the history of the progressives, they were mostly “resort liberals” from the East Coast who thought America should emulate Europe. Forget that many Americans had left Europe to come here; we were supposed to bring Europe here so they couldn’t get away. Additionally, these know-it-alls believed (still believe) themselves to be of superior intellect and moral fiber compared to the rest of American society.

The original Constitution had specified that members of the House of Representatives were to be elected for two-year terms by those voters in each state who had “the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.” Because in nearly all states voting qualifications for the lower legislative chamber were fairly minimal, this rendered the House a very democratic institution – a creature of the people.

To balance that democratic influence with seasoning and stability and to give the states a role in federal governance, the Framers prescribed that two Senators be elected by each state legislature for six-year terms. I’m not conjecturing this. Read the Anti-Federalist Papers which includes the notes from debates at the 1787 Convention. This was a deliberate republican safeguard to provide balance against the inherent excesses of democracy. This method of election has been credited widely with producing, at least during the first half of the 19th century, a Senate of good quality and some Senators of outstanding quality. There were, however, at least three drawbacks to the system:

  • smaller electorates (e.g., state lawmakers) are easier to corrupt than larger electorates (e.g., the entire people). Although cases where candidates purchased Senate seats from state lawmakers were few during the early years, they multiplied after 1850.
  • the system was prone to deadlock. State legislatures sometimes had to ballot for months on end while their state remained underrepresented in Congress. A deadlock delayed the selection of New York’s senators in the First Congress, and the phenomenon became more and more common as time wore on. Between 1891 and 1905, there were 45 deadlocked senatorial elections in 20 different states. Deadlock often was broken by “stampeding” – last-minute election of a dark horse who no one previously had thought to be of senatorial material.
  • because people “voted” for a Senate candidate by voting for state legislators, federal and state issues became bundled, with state issues often entirely submerged, both among the voters (the Lincoln-Douglas senatorial race of 1858 is the most famous example) and among state lawmakers.

Allegedly to cure all of these ills, the progressives sought to move election of U.S. senators from the legislatures to the people of the several states. American historians, who tend to sympathize with the progressives, sometimes imply that direct election was the only possible corrective, and they sometimes depict the campaign as opposing idealistic progressive reformers to the “greedy corporations” that controlled a “Millionaires’ Club” of “plutocratic” senators. As is often the case in history, the truth is more complicated.

There were available remedies short of constitutional amendment. Article I, Section 4, Clause 1 of the Constitution provides as follows:

The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of choosing Senators.

 Although each state initially set its own election rules for both House and Senate, Congress was permitted to override those rules to a considerable extent. Thus, Congress could alter the “Manner of holding Elections” for senators within the state legislatures to specify procedures less subject to deadlock. For example, Congress could require that elections be conducted by joint votes of both legislative chambers. It could mandate that a winner need only a plurality rather than a majority of votes.

The Senate had the power, which it had occasionally exercised, to expel members for corruption. A constitutional amendment was not required to strengthen the relevant law or Senate rules. The worst abuses of the legislative election system were solvable without taking the election from the legislatures.

Congress enacted poorly-crafted regulatory legislation in 1866 to relieve the deadlock problem. The progressives used this as “proof” that a mere change in the law would not do.  The fact that Congress considered and rejected the plurality winner rule several times strongly suggests that progressives had more on their minds than corruption, deadlock and issue bundling.

What else might they have been after? Statistical research by historian John D. Buenker shows that the contest was not really between “idealists” and “plutocrats”. Buenker concludes that a key component in the coalition for direct election consisted of the big-city political machines, mostly (but not exclusively) Democrat. The urban bosses saw direct election as a way to amass greater shares of power for themselves and for the ethnic groups they represented.

In some states, the goal was more purely partisan – direct election was seen as a way to weaken Republican senatorial candidates while benefitting Democrats and Populists. For example, Rhode Island pitted urban-based Democrats, aided by a few Progressives and Republicans from similar constituencies against the rural and small-town-based Republican organization. Oh, wait … urban versus rural … oh, my.

More importantly, the progressives strongly favored augmenting federal power. Direct election would end state participation in Congress, and thereby facilitate federal incursion into areas of policy traditionally under state control – education, health, safety, food inspections, manufacturing, road construction, elections, parks, etc. All of this happened eventually, if not immediately.

Direct election enjoyed very high levels of popular support – perhaps even higher than the modern popularity of a balanced-budget requirement. Direct election seemed a viable way of attacking corruption and state legislative deadlock, just as a balanced-budget requirement is seen now as a way of imposing more fiscal restraint.

State legislators also appreciated the cause. Even though transferring senatorial elections to the voters would reduce the power of state lawmakers, most of those lawmakers had become thoroughly disgusted with deadlock, long periods without senatorial representation, and the overshadowing of state issues in state legislative elections. It was thought that states could focus on their own issues more.

The media did a wonderful job of popularizing the notion of direct election of Senators, so that the public broadly wanted this change. It’s unlikly that people fully understood what they were asking for. My grandmother’s father and uncle were involved in state politics in their home state and family archives suggest they were opposed to the change, but their constituents thought it was a GREAT idea.

Efforts to induce Congress to propose an amendment had proved fruitless. When the state application campaign began in 1899, the House of Representatives already had voted three times for such an amendment; the Senate killed it each time. The same thing happened again in 1900 and 1902. Most senators simply had no interest in altering the method of election that had elected them. A cause with overwhelming public support seemed permanently blocked in Congress, just as more recent causes with overwhelming public support, such as proposals for a balanced budget amendment and term limits, have been blocked in Congress. This might be a cautionary tale.

Advocates of direct election understood that Americans often have amended their Constitution not so much to change the fundamentals of the system as to restore or reinforce those fundamentals. Those advocates therefore cast their amendment in those terms. As the 1911 Senate Judiciary Committee report, recommending the 17th Amendment, said, social change required altering the mode of election, “not for the purpose of changing the fundamental principles of our Government, but for the purposes of maintaining the very principles which the fathers sought to establish.” America, it was said, is a democracy, but there’s this whole chamber in DC that is not elected by the people. We need to correct that.

Americans at the time of the direct election movement remembered most of their constitutional history, understanding that when applications from two-thirds of the states are received, Congress has no choice in the matter – it must call a convention. They also understood that state applications can limit the subject matter, but that the convention, not the states, actually drafts the amendment. States targeted their applications toward direct elections, while not purporting to dictate the amendment’s precise language.

On the other hand, there was enough constitutional amnesia that opponents were able to argue that a convention for proposing amendments was a “constitutional convention” which held an inherent risk of runaway. This appears to be the first time such beliefs were widely broadcast and some proponents played into their adversaries’ hands by referring to the assembly as a “constitutional convention.” The belief was not widely enough held to derail the movement.

The campaign began with various efforts to induce Congress to report an amendment of its own. Nebraska, Texas and Pennsylvania requested during the 1890s, while Georgia, Arkansas and Oklahoma formed committees to explore the issue in the first decade of the 20th century.

The Pennsylvania application form, which it sent on to other states, read:

Whereas, A large number of State Legislatures have at various times adopted Memorials and Resolutions in favor of election of United States Senators by popular vote; And Whereas, The National House of Representatives has on four separate occasions, within recent years, adopted resolutions in favor of this proposed change in the method of electing United States Senators, which was not adopted by the Senate;

And Whereas, Article V of the Constitution of the United States provides that Congress, on the application of the Legislatures of two-thirds of the several States, shall call a convention for proposing amendments, and believing there is a general desire upon the part of the citizens of the State of Pennsylvania that the United States Senators should be elected by a direct vote of the people Therefore, be it resolved … That the Legislature of the State of Pennsylvania favors the adoption of an amendment to the Constitution which shall provide for the election of United States Senators by popular vote, and joins with other States of the Union in respectfully requesting that a convention be called for the purpose of proposing an amendment to the Constitution of the United States, as provided for in Article V of the said Constitution, which  amendment shall provide for a change in the present method of electing United States Senators, so that they can be chosen in each State by a direct vote of the people.

Resolved, That a copy of this concurred Resolution, and application to Congress for the calling of a convention, be sent to the Secretary of State of each of the United States, and that a similar copy be sent to the President of the United States Senate, and the Speaker of the House of Representatives.

This carefully drafted form clarified that the legislature was applying formally for an Article V convention to consider only the particular subject matter of direct election of senators. This was consistent with the Founders’ expectations and it reassured others that the applying state did not seek to rewrite the entire Constitution. The approach of limiting the convention to a single issue also was familiar to state lawmakers since a single-subject rule commonly was (and still is) applied to state bills. The form properly named the assembly sought as a “convention … for the purpose of proposing an amendment,” rather than a “constitutional convention.”

Soon, there was a flood of similar direct-election applications based on the same principles as the Pennsylvania application. Minnesota, South Dakota, Washington, Oregon, Oklahoma, Louisiana all filed applications in short order. Despite some confusion sowed by the opposition, for the most part the organizers of the direct election application campaign remembered constitutional rules laid down by the Founders:

(1) single-subject applications were permitted and expected,

(2) applications could not actually draft the amendment, and

(3) the procedure was designed to make reforms that Congress would not undertake itself.

(4) an amendments convention was a gathering of delegates of states.

The Article V convention never took place because the Senate voted the amendment out for ratification by the states just short of the requisite number of applications. Since that time, there has been strong public sentiment against such a convention, owing to a lack of understanding of the constitutional constraints that have always been in place.

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