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Seventeenth Amendment to the United States Constitution
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The Seventeenth Amendment in the National Archives
The Seventeenth Amendment (Amendment XVII) to the United States Constitution established the popular election of United States Senators by the people of the states. 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.
The amendment was proposed by the 62nd Congress in 1912 and adopted in 1913 upon being ratified by three-fourths (36) of the state legislatures. It was first implemented in special elections in Maryland (November 1913) and Alabama (May 1914), then nationwide in the November 1914 election.
Contents [hide]
1 Text
2 Background
2.1 Original composition
2.2 Issues
2.3 Calls for reform
3 Proposal and ratification
3.1 Proposed by the Congress
3.2 Ratification by the states
3.3 Effect
3.4 First direct elections to the Senate
3.5 Interpretation and advocacy for reform
4 References
5 Bibliography
6 External links
Text[edit]
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.[1]
Background[edit]
Original composition[edit]
James Wilson, the only member of the Constitutional Convention who supported electing the United States Senate by popular vote.
Originally, under Article I, § 3, Clauses 1 and 2 of the Constitution, each state legislature elected its state's senators for a six-year term.[2] Each state, regardless of size, is entitled to two senators as part of the Connecticut Compromise between the small and large states.[3] This contrasted with the House of Representatives, a body elected by popular vote, and was described as an uncontroversial decision; at the time, James Wilson was the sole advocate of popularly electing the Senate and his proposal was defeated 10–1.[4] 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 Anti-federalists that there would be some protection against the swallowing up of states and their powers by the federal government,[5] providing a check on the power of the federal government.[6]
Additionally, the longer terms and avoidance of popular election turned the Senate into a body that could "temper" the populism of the House. While the Representatives operated in a two-year direct election cycle, making them frequently accountable to their constituents, the senators could afford to "take a more detached view of issues coming before Congress".[7] State legislatures retained the theoretical right to "instruct" their senators to vote for or against proposals, thus giving the states both direct and indirect representation in the federal government.[8] The Senate was part of a 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".[9] Members of the Constitutional Convention considered the Senate to be equivalent to the British House of Lords as an 'upper house', 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.[10]
Issues[edit]
According to Judge Jay Bybee of the United States Court of Appeals for the Ninth Circuit, those in favor of popular elections for senators believed that two primary problems were caused by the original provisions: legislative corruption and electoral deadlocks.[11] There was a sense 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 votes in the Montana legislature. But, analysts Bybee and Todd Zywicki believe this concern was largely unfounded; there was a "dearth of hard information" on the subject.[12] In more than a century of legislative elections of US senators, only 10 cases were contested for allegations of impropriety.[13]
Electoral deadlocks were another issue. Because state legislatures were charged with deciding whom 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 in the Senate.[14] Deadlocks started to become an issue in the 1850s, with a dead-locked Indiana legislature allowing a Senate seat to sit vacant for two years.[15] Between 1891 and 1905, 46 elections were deadlocked, in 20 different states;[13] 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 House of Representatives 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 pass legislation that year.[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 were unable to conduct their other 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]
State legislative elections were perceived to have become dominated by the business of picking senators.[19] Senator John H. Mitchell noted that the Senate became the "vital issue" in all legislative campaigns, with the policy stances and qualifications of state legislative candidates ignored by voters who were more interested in the indirect Senate election.[20] To remedy this, some state legislatures created "advisory elections" that served as de facto general elections, allowing legislative campaigns to focus on local issues.[20]
Calls for reform[edit]
William Jennings Bryan, who campaigned for the popular election of U.S. Senators
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.[21] Similar amendments were introduced 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.[22] In the 1860s, there was a major Congressional dispute 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 vote for the office. In reaction, the Congress passed a bill in July 1866 that required state legislatures to elect senators by an absolute majority.[22]
By the 1890s, support for the introduction of direct election for the Senate had substantially increased, and reformers worked on two fronts. On the first front, the Populist Party incorporated the direct election of senators into its Omaha Platform, adopted in 1892.[23] 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.[24] Proponents for popular election noted that ten states already had non-binding primaries for Senate candidates,[25] 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.
William Randolph Hearst opened a nationwide popular readership for direct election of U.S. Senators in a 1906 series of articles using flamboyant language attacking “The Treason of the Senate” in his Cosmopolitan Magazine. David Graham Philips, one of the "yellow journalists" whom President Teddy Roosevelt called “muckrakers”, described Nelson Aldrich of Rhode Island as the principal “traitor” among the “scurvy lot” in control of the Senate by theft, perjury, and bribes corrupting the state legislatures to gain election to the Senate. A few state legislatures began to petition the Congress for direct election of senators. By 1893, the House had the two-thirds vote for just such an amendment. However, when the joint resolution reached the Senate, it failed from neglect, as it did again in 1900, 1904 and 1908; each time the House approved the appropriate resolution, and each time it died in the Senate.[26]
On the second national legislative front, reformers worked toward a constitutional amendment, which was strongly supported in the House of Representatives but initially opposed by the Senate. Bybee notes that the state legislatures, which 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".[25]
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