The Purpose and Powers of the Senate, Part XXII: “Continuity of Service”

    As of April 8^th, 1913, the 17^th Amendment was officially ratified. The procedure by which United States Senators had been chose since the Constitution was adopted in 1788 was thereafter replaced with a system of popular elections, thus effectively removing the state assemblies from any substantive role in the federal power structure. The first competitive election to take place under this new system occurred in Maryland in November of that same year, the result of the sudden death of Democrat Isidor Rayner (1850-1912). The Democrats held the seat. The first nationwide election to take place under its auspices occurred the following year, in November of 1914. The results, in spite of the nature of the modification that had been wrought, were also rather unspectacular. Of the thirty-two Senate seats that were contested by way of popular elections, only three of them changed hands as a result of a loss at the polls. The majority of incumbents kept the seats they had been previously granted; of those races which were open – namely as the result of retirement – the majority resulted in no change in party status. Elections for the two remaining classes of Senators were somewhat more dynamic. In 1916, a full twelve seats out of thirty-five changed hands. But then, in 1918, that number went down to eight out of thirty-eight. Based on these short-term results alone, very little seemed to have changed. The inhabitants of the various states were evidently inclined to make much the same choice for Senator as their legislatures had before. The chamber was not thrown into utter turmoil. The parties did not experience sudden reversals of fortune. It was almost as if nothing had happened at all.

    This was not the case, of course. Something of fundamental significance to the very nature of republican government in the United States had in fact just taken place. The reason that its impact was not immediately observable was that one requires access to the right data in sufficient amounts to be able to properly observe just what changed and how. And while this kind of data may not have existed in 1914, or 1916, or 1918, it most definitely does exist now. All credit for compiling this information is due to those scholars of the Senate whose efforts have succeeded in producing an exceptionally thorough portrait of that chamber’s structural evolution following the passage of the 17^th Amendment. In particular, recognition must be granted – for his academic work if not for his other professional “accomplishments” – to United States Circuit Court Judge Jay Bybee (1953-present) who published among the first comprehensive studies of the effects of the 17^th Amendment in an issue of the Northwestern University Law Review (Vol. 92, No. 2) in 1997. Bybee’s work provides the basis for the bulk of conversation that follows.

    So what, then, was the “actual result” of the ratification of the 17^th Amendment? In what way, if any, did this modification of the Constitution change the Senate of the 19^th century into the Senate of the 20^th century? The answer, unsurprisingly, is more than a little complex. To begin with, when one gathers the relevant data on the political composition of the various state legislatures between the late 1860s and the late 1990s and compares it to the record of political representation in the Senate on a state-by-state basis, two significant trends immediately present themselves. In the first case, between 1869 and 1914 – when the first nationwide election was held under the terms of the 17^th Amendment – the political affiliation of a given state’s Senators almost always reflected the political composition of that same state’s legislative assembly. If a state assembly, at a given moment, was controlled by the Democrats, for example, then the Senator which that assembly chose would almost always be a Democrat as well. Granted, this is not much of a conclusion on its own. It would seem only natural that the partisans who found themselves in control of a state legislature would seek to extend their power into the federal realm as well. But consider, in addition, the following. After the ratification of the 17^th Amendment in 1913, control over the various state legislatures no longer had any causal impact upon the partisan makeup of the Senate. Pre-1914, the party that controlled the majority of the state assemblies was essentially guaranteed to enjoy a proportionate majority in the Senate. After 1914, this was no longer the case. The Senate and the state assemblies thus became formally unlinked, allowing the two to diverge and evolve in ways that their continued association would almost certainly not have allowed.

    In the most baseline, practical sense, this divergence has given rise to drastically different outcomes in terms of federal legislative elections. Take the aforementioned election of 1914 as a case in point. While, on the surface, the ratification of the 17^th Amendment seemed to exert little change, if any, on the final outcome – the Democrats gained three seats and remained in control of the chamber – the likely outcome in its absence rather belies this superficial conclusion. Recalling that, prior to 1914, the party affiliation of any given Senator almost always reflected the party affiliation of the controlling majority in the relevant legislature, a 1914 Senate election in which the state assemblies continued to appoint the membership of the upper chamber would almost certainly have given rise to a far more tenuous balance of power. Under the terms of the 17^th Amendment, the election of 1914 gave rise to a Democratic majority in the Senate by a margin of 56-42. In the absence of a 17^th Amendment, however, the result would more than likely have been an even split of 48-48. In actual fact, the Democratic-controlled Senate of the 64^th United States Congress undertook the passage of a number of very consequential pieces of federal legislation addressing a wide variety of policy areas. These included, but were not limited to, the Tillman Act (which, for the first time, sought to regulate campaign finance), the Kent-Smoot Act (which established the National Park Service), the Jones Act (which provided for an elected legislature in the occupied Philippines), and the Army Appropriations Act (which laid the groundwork for the modern military-industrial complex). While it would be impossible to say for certain that in the tense climate of a 48-48 Senate none of these laws would have been passed, the legislative priorities of both the Democrats and the Republicans were sure to have been quite different when compared to the actual events of the 64^th Congress. It would accordingly seem more than fair to conclude that by unhooking the composition of the Senate from that of the various state assemblies, the 17^th Amendment began to change the course of American history as early as 1914. Laws which might not have passed were approved; law which might have been passed were not.

    And this was far from the only occasion in which the actual political outcome significantly diverged from what might have been the case in the event that the 17^th Amendment was never enacted in 1913. In 1932, for example, whereas in reality the Democrats took possession of the majority in the Senate, the absence of the 17^th Amendment would have likely left it in the hands of the Republicans until 1934 at the least. Doubtless this would have offered a significant challenge to President Roosevelt’s efforts to secure passage of a host of early New Deal legislation, with the possible outcome of a significantly worsened Great Depression. Just so, without the 17^th Amendment, there almost certainly wouldn’t have been a Democratic Senate majority in place in the late 1940s and early 1950s, thus likely complicating the ratification of the original NATO charter in 1949, the passage of the Immigration and Nationality Act of 1952, and the approval by Congress of the 22^nd Amendment in 1951. Even more recent events would almost certainly have turned out differently. The Republican Party would still have taken back majority control of the House in 1994 for the first time in forty-two years, but the continued appointment of Senators by the state assembles would have allowed the Democrats to actually make gains in the Senate, increasing their majority from fifty-seven seats to seventy. In the event of such an alternative outcome, one wonders whether the government shutdowns of November, 1995 and December, 1995 would have taken place at all given the ability of a Senate controlled by the Democrats to hold a Republican-controlled House in check.

    As far as the upper chamber’s character is concerned, it might be fair to say that the average Senator has become both more independent and less independent than was previously the case. On the one hand, before the ratification of the 17^th Amendment, Senators were subject to being directly instructed by the state assemblies that appointed them. This was not a formal power which the assemblies possessed, it bears noting, but rather a logical outgrowth of the relationship between the two. If a Senator declined to follow a set of written instructions provided by the members of the legislature that had chosen them, these same members would seem to have little cause re-appoint the Senator in question when their tenure in office expired. The result, in practice, was that Senators generally did as they were told. Following the adoption of the 17^th Amendment, this was no longer to be the case. Since then, Senators have only been beholden to the whims of their home state’s population. And even then, only in the most vague and ill-defined sense. They can and do take polls of their constituents in an attempt to ascertain their feelings on a given issue or policy, but for the most part they simply vote as they feel it is in their interest to do so. Rather than receiving instructions, therefore, Senators since the adoption of the 17^th Amendment had arguably taken to giving explanations. While on the Senate floor, they vote; while on the campaign trail, they justify. Granting that their explanations do not always pass muster, the general dynamic would still seem to grant them a markedly freer hand. With no explicit instructions to risk their career by disobeying, Senators have been given room to negotiate the terms of their continued tenure in office with a larger and less cynical constituency than the membership of a state assembly. Career politicians, after all, are less likely to be vulnerable to campaign rhetoric and dramatic promises than the average American voter. A state assemblyman must be reasoned with; an American citizen can be convinced.  

    On the other hand, Senators have arguably become even more beholden to the general electorate than they had ever previously been obligated to the membership of the state assemblies. Consider, to that end, the nature of the change in question. Before the adoption of the 17^th Amendment, any given Senator was only ever directly accountable to a majority of the members of their home state’s legislative assembly. Depending on the state, of course, this could range from a fairly small number of people to a very large one. In either case, however – and in every case in between – the rules of the pre-1913 Senate rendered the number of people who actually elected a given Senator into something that was both specific and cognizable. So long as a Senator had the trust and support of this specific group of people – by way of promises, good behavior, or perhaps an exchange of favors – their continuation in office was more or less assured. Assured, that is, so long as the legislators in question maintained their majority. Senators played no small part in this as well, it bears noting. Many a state legislative election, prior to the ratification of the 17^th Amendment, pivoted upon the question of whom the candidates proposed to appoint to the Senate. That being said, the intermediate role played by the state assemblies did still significantly color the resulting dynamic. Assemblymen had no reason to simply appoint whoever was most popular with their constituents, though popularity no doubt factored into their thinking. Rather, they were also obliged to consider who among the possible candidates for Senate would be the easiest to instruct, the most loyal, and the most likely to represent their state’s interests in good faith. In consequence, while Senators prior to 1913 most certainly did undertake to publicly campaign for their seats – a phenomenon perhaps most famously exemplified by the Lincoln-Douglas Debates of 1858 – their most important relationship was with the legislators who directly appointed them. 

    Since the ratification of the 17^th Amendment, however, Senators have been forced to become popular electioneers. To some extent, as aforementioned, this has given them a freer hand in terms of pleading their case and successfully swaying their constituents. The average citizens, it bears repeating – without judgement or disdain – does tend to be more susceptible to political rhetoric than the average elected official. But it has also resulted in Senators paying far greater attention to the more facile aspects of public service. Convincing a group of legislators to send them to the Senate no doubt demanded a great deal of a candidate in the way of arguments and promises, favors and pledges of gratitude. But it was not an effort that necessarily required their constant and unwavering attention. Being beholden to the general population, by comparison, would seem to turn every public gesture, every vote, and every address into potential material for later campaigning. The members of a state assembly, after all, didn’t need to pay heed to the news coverage to know what it was their Senator stood for or how they intended to vote. In need of information, they could simply ask the individual to make a report. And desirous of a specific outcome, they could simply deliver to them formal instructions. But because the general population doesn’t have access to, or control over, their chosen Senators in this way, these same Senators must make a point of essentially broadcasting a desirable image essentially any time they are in the public eye. In essence, they must chase votes, rather than being able to simply gather them. They must cast as wide a net as possible, rather than seek out the relatively modest degree of support which they need for their careers to survive. And this, in its own strange way, has made Senators significantly less autonomous than was previously the case.

    As to the questions of tenure and rotation, the 17^th Amendment has also given rise to some rather unexpected developments. Prior to 1913 – generally speaking – the length of service of most Senators tended to be fairly short. This isn’t to say that most Senators failed in their reelection bids or that no Senator ever secured a string of several consecutive terms in office. Rather, it is simply to point out the basic fact that Senate tenures, on average, have become far longer since the adoption of the 17^th Amendment than they ever were before. Consider, by way of an example of how things used to be, the careers of the three men who have long been heralded as the greatest United States Senators of 19^th century. Henry Clay (1777-1852), who racked up no less than four separate stints in the upper house over the course of his lengthy career in public service, was only ever elected to a consecutive term once, in 1836. Prior to that, he served for less than a year between 1806 and 1807 and for slightly more than a year between 1810 and 1811. At the end of his life, in 1849, he was elected once again, only to then die in office in 1852. All told, this would seem to amount to two full terms and a little more than half of a third. John C. Calhoun (1782-1850) was even less prolific than Clay, managing the better part of a single term between 1832 and 1843 and then another partial term between 1845 and his own death in 1850. Daniel Webster (1782-1852), by comparison with these two, had a much more stable tenure in office. Between 1827 and 1841, he managed to string together three consecutive elections. This was followed by a fourth term in 1845, after which point he retired to become Secretary of State. Clay and Calhoun, to be fair, also cut their Senate careers short at times for reasons both personal and professional. Calhoun did so in 1843, for example, in exchange for the leadership of the State Department. And Clay’s second and forth terms both came to an end voluntarily. But it is nevertheless exceptionally telling how short the tenures of these three “great men” actually were. The did not park themselves in a Senate seat and serve for decades on end, but rather came and went, were reelected and resigned, in accordance with their own personal desires and those of the legislators to whom they were beholden.

    The reason that this kind of churn was once fairly common most assuredly has to do with various ambitions of those involved. Senators have, since 1913, resigned their seats voluntarily in order to accept a federal appointment, or done so out of a desire to retire from public life on their own terms rather than face eventual defeat. But rarely, once they’ve made such a choice, do they then return to office years later. Political careers have become longer, on average, but they have also become less dynamic. The 17^th Amendment has contributed to this development in the way that it altered the relationship between the different tiers of popular government. Prior to its ratification, there arguably existed a kind of pipeline between the state governments and the federal government by which ambitious public servants attempted to advance their careers and accrue favors. Through election to a state assembly, one gained influence over Senate appointments; through voting on Senate appointments, one accumulated connections and traded favors; by trading favors, one built up a case for being elected to the Senate oneself; and by being elected to the Senate, one gained access to federal appointments and federal patronage by which to secure eventual reelection. Constant upward pressure essentially created a kind of conveyor belt, with legislators seeking to advance themselves while checking the careers of those they supported and Senators seeking access to federal appointments so as to reward those who had elevated them in turn. In this way, while the members of a given state assembly might have preferred not to continually reelect the same Senator indefinitely – specifically because many of them naturally coveted the seat in question – a former Senator who had been elevated to a position in the Cabinet might nonetheless achieve their own reelection by way of the judicious application of patronage.

    By making United States Senators subject to popular election, the ratification of the 17^th Amendment has fundamentally altered this dynamic. Ambition has still come to define the trajectory of many a career in public service, to be sure, but these trajectories are a fair bit more linear than they used to be. And while the desire for professional advancement continues to propel individuals from one office to another in search of greater wealth and prestige, the shift from legislative appointment to popular election in the Senate has eliminated what was once a major junction point between the state and federal stages of the American political career track. Previously, election to a seat in any of the state assemblies more or less guaranteed a person access to some portion of the federal power structure. By casting their vote for Senator, state legislators built up relationships with their federal counterparts and accrued favors with their fellow lawmakers, thus paving the way for potential patronage appointments – if the Senator they elected happened to gain appointment to the Cabinet – and helping to establish the necessary powerbase to accomplish their own election to the Senate in turn. Following the ratification of the 17^th Amendment, however, the jump from state service to federal service has become significantly more difficult. Rather than being able to use the appointment power as a kind of springboard to federal office, individuals have instead taken to building up a public profile in state government so as to gain the endorsement of a national party apparatus for a run for federal office. Individuals do still run for Senate without any prior experience, to be sure, particularly if their public profile is exceptionally impressive. But it remains most common for aspiring public servants to first spend a few terms in either the House of Representatives or the executive branch of their home state before then becoming a candidate for the upper chamber of Congress.

    The reason for all this is that a given Senator’s public profile has become by far the most valuable currency by which they are able to pay off their continuation in office. Their most important relationship is now with the voters rather than a handful of legislators, creating a much greater incentive to be seen and be heard than was ever the case before 1913. As far as their prospects for reelection are concerned, a Senator is essentially the culmination of their votes, their speeches, their public statements, and their presence in the media. The old priorities have been eliminated – i.e., the need to maintain good relationships with the members of the relevant state assembly – and so has the upward pressure that once encouraged Senators to serve briefly and then proceed to repay their debts. Now, so long as the voting public is sufficiently satisfied, there are few reasons for a member of the Senate to seek even higher office. Some may pine for the presidency, it is true, as a kind of capstone to their political career, but these are relatively few. Most modern Senators, having attained the public office in the whole of the American republic with the longest tenure between elections, settle in, pay heed to their campaign war chests, and begin planning for their eventual retirement. Their race to the top of the power structure having essentially been won, they embrace their purported status as the grandees of their respective parties.

Interestingly enough, this is not at all what some of the loudest critics of the 17^th Amendment predicted would occur when the topic of Senate election reform was still a matter of public debate. In 1902, for example, New York Senator Chauncey Depew (1834-1928) objected to any such reform on the grounds that Senators should not have had the, “Tenure of their place here” questioned every six years by people who lacked sufficient knowledge of the necessary qualifications. To his thinking, it seemed, allowing such popular review of the performance of sitting Senators was bound to result in an unhealthy degree of turnover at the expense of efficient and effective policymaking. Just so, writing in 1906, political scientist George H. Haynes (1866-1947) opined in his Election of Senators that a shift to popular election would produce even shorter tenures of service. “The choice of senators by state legislatures” he said,

Has tended to produce a continuity of service, and hence an efficiency based upon long experience in legislature work, highly exceptional in popular governments [...] If the effects of popular elections be judged by results produced in the election of governors and representatives in Congress, it is clear that the trading of localities, the restless craving for rotation in office, the insistence that the prizes be widely distributed, would make it highly improbable that a senator would be given more than one or, at most, two terms. When the loss to the country is estimated if the service of a Webster or a Clay, a Sherman or a Hoar, were limited to six or even to twelve years, the innovator may well hesitate to urge popular election; for the evidence is incontrovertible that the American people still cherish the notion of rotation of office, and that they are particularly loath to reelect men for long terms of legislative service.

The extent to which Haynes’ prediction has been shown to be incorrect is almost laughable. And so, indeed, were certain of his suppositions.

    It was Haynes’ opinion – based on Lord knows what data – that allowing Senators to be chosen by the various state legislators produced, “A continuity of service, and hence an efficiency based upon long experience in legislature work.” In the event that the general electorate were instead granted the responsibility, “The trading of localities,” he said, “The restless craving for rotation in office, the insistence that the prizes be widely distributed, would make it highly improbable that a senator would be given more than one or, at most, two terms.” In actual fact, however, rather the opposite was demonstrably the case. “When the loss to the country is estimated [,]” he said, “If the service of a Webster or a Clay, a Sherman or a Hoar, were limited to six even to twelve years, the innovator may well hesitate to urge popular election [.]” But long did Daniel Webster actually serve? Three terms, all told. And Henry Clay? Two and a half. And John Sherman? Three and a half. And George Hoar? Four and a half. Longer tenures, to be sure, than Haynes feared would become the norm, but by how much in real terms? Would Henry Clay’s career have been so much the worse for the lack of three additional years in the Senate? Or Webster’s for the lack of six? And what of all the other men who served far shorter stints alongside these notable aberrations? Were they not the norm in both notoriety and tenure in office? Would it have been so unforgivable if fewer individual Senators came to dominate the chamber’s discourse for upwards of a dozen years on end? Would it not have benefited the American people for influence within the Senate to be distributed in a somewhat more equitable manner?

    In actual fact, as aforementioned, Haynes’ prognostication could not have been more wrong. While the relevant trend was somewhat slow to develop, Senate tenures, on average, have only lengthened since 1913. Consider, by way of example, the periods of service rendered by certain Senators in the states of New York, Virginia, and Pennsylvania both before and after the adoption of the 17^th Amendment. Prior to 1913, the longest tenure served by a Senator representing the state of New York was that of Republican Roscoe Conkling (1829-1888), who was elected to three terms between 1867 and 1881, the last of which he voluntarily cut short. In Virginia, this same honor goes to Democrat John W. Daniel (1842-1910), who was elected to an impressive five terms between 1887 and 1910. And in Pennsylvania, the longest pre-reform tenure was that of Republican J. Donald Cameron (1833-1918), who was elected to four terms in the twenty years between 1877 and 1897. These men were not representative of the norm, to be sure; most Senators managed only one or two terms before resigning in favor of a federal appointment, retiring from public life altogether, or dying in office. But they do, between them, demonstrate that lengthy periods of service in the Senate were actually possible under the original, unamended terms of the United States Constitution. Compared to their successors in the post-amendment era, however, their sustained careers in the upper chamber take on a somewhat more mundane appearance.

    In New York, for example, since the ratification of the 17^th Amendment, Conkling’s former record of three terms has been beaten several times over. In fact, the race for longest tenure representing the Empire State in the Senate is at present a four-way tie between Robert F. Wagner (1877-1953), Jacob Javits (1904-1986), Daniel Patrick Moynihan (1927-2003), and the currently serving Charles Schumer (1950-present), all of whom, over the course of their careers, managed four successful elections. In Virginia, Daniel’s previously exceptional five-term stint has likewise been obliterated by that of Democrat Harry F. Byrd (1887-1966), who racked up a total of seven terms between 1933 and 1965. And finally, in Pennsylvania, Cameron’s four-term watermark has since been bested by Republican-turned-Democrat Arlen Specter (1930-2012), who won a total of five elections between 1980 and 2011. The average Senate tenure has likewise been significantly lengthened. Whereas, prior to 1913, only fourteen Senators from the three states under discussion were elected to three terms of more, since 1913, that number has increased to twenty. Single-term Senators have also become especially rare, while two terms in office have become more or less the norm. Particularly competitive states like Pennsylvania and Virginia do rather throw this average off, it must be said, with both states having experienced a string of single-term Senators at some point in the last sixty years. But by and large, when one considers these statistics in the light of Haynes’ aforementioned forecast, the depth of his miscalculation is nonetheless readily apparent. Far from shortening the average Senate tenure, the century that followed the ratification of the 17^th Amendment instead witnessed a general lengthening of service. Not only have a greater number of individuals been elected to two terms in office or more, but the inhabitants of the states have shown themselves more amenable to electing a given Senator three times or more than the members of the various state assemblies ever seemed to be.

The Purpose and Powers of the Senate, Part XXI: “Honest and Faithful Legislatures”

     Arguably the last piece of the puzzle which one need put in place in order to understand the nature and purpose of the United States Senate in its current form is the 17^th Amendment and its effect on Senate elections and composition. The significance of this Progressive Era reform was discussed in brief in a previous entry, but its impact on how the upper chamber of Congress is composed and how it functions is far too important to simply leave it at that. In 1913 – pursuant to a whole host of social and political forces then at work in the United States – the American people collectively agreed to modify the Constitution so as to make US Senators popularly elected rather than the appointees of the state assemblies. Not only did this fundamentally alter the balance of power within the national government which the Framers had originally envisioned – not a bad thing, to be sure, but certainly a consequential one – but it also augured a tremendous change to the basic character of the Senate, the impact of which would reverberate through the upper chamber’s every function and responsibility. After all, a group of legislators chosen in turn by other groups of legislators is bound to act and react differently compared to one whose constituents are the undifferentiated populations of the states. The Framers sought to insert what were effectively agents of the state governments into the framework of the national government. The 17^th Amendment has conversely made the Senate into as much of a populist chamber as the House. Significant though this development most assuredly is, of course, one can only begin to understand it by first answering the question of why. That is, why did the majority of the American people see the 17^th Amendment as a necessary reform in 1913?

    It perhaps bears recalling, first of all, that the original decision to allow the state assemblies to appoint the membership of the Senate represented a compromise – or perhaps, more accurately, a series of compromises – on the part of the Framers. In essence, they aimed to achieve three basic outcomes. First, it was their intention – having previously agreed that the newly-empowered Congress would be bicameral rather than unicameral – that the upper house of the national legislation should perform more or less the same function as the British House of Lords. That is, while dispensing with the hereditary nature of power within the Lords, the Senate would bring to bear the same kind “detached,” “sober,” and “qualified” scrutiny which Parliament’s upper chamber was ostensibly intended to provide in matters of legislation and executive oversight. Part of how this was to be accomplished, of course, had to do with the second major outcome which the Framers sought to achieve. That being, the amelioration of anti-federalist anxieties by the carving out of a specific place within the national power structure for the states to exert their collective will. So long as the states had some means of guaranteeing that the new national government could not wholly subvert their authority or seek their dissolution, the majority of the Framers concluded, then there would be fewer reasons on the part of those unsure of the new government to give force to their doubts. And finally, as a means of balancing the influence of the House of Representatives – a chamber whose members were to be elected both popularly and on a two-years cycle – it was hoped by those in attendance at the Philadelphia Convention in 1787 that the comparatively static Senate – whose members would be legislatively appointed and serve six-year terms – would serve as a source of stability and moderation. In seeking to accomplish all three of these objectives, the Framers thus endeavored to create a legislative body that was at once – at least when compared to the House of Representatives – sober, separate, and stable.

    As carefully considered as the resulting administrative framework may have been, however, the original design of the Senate would eventually prove itself to be far from flawless. Specifically, the decision to allow the various state legislatures to appoint the chamber’s membership at length became the source of a number of controversies and dilemmas. Most prominent among these were incidents of corruption, on the one hand, and occasions of political deadlock, on the other. Between the mid-1850s and the turn of the 20^th century, to speak to the former, ten Senate elections were investigated on charges of bribery, three of which were ultimately judged to have merit. Perhaps the most famous among them – given the behavior of the accused at the time – was that of William Andrews Clark (1839-1925), an industrialist, mine owner, and entrepreneur who made a name for himself as one of the so-called “Copper Kings” of Butte, Montana. In 1899, pursuant to a vote by the Montana State Legislature, Clark was elected to represent the Treasure State in the United States Senate, the result of which was a national scandal. Word reached Washington in advance of Clark’s arrival that his appointment by the Montana legislature had been the direct result of bribery, in response to which information the Senate conducted an investigation. At length, upon the resulting report having concluded that Clark had purchased as many as eight of the fifteen votes that ultimately won him his appointment, he resigned his seat.  To his credit – if credit is indeed the right word – the man remained remarkably sanguine as to both his misdeeds and his future prospects. In response to the aforementioned accusations, he is reported to have replied very simply that, “I never bought a man who wasn't for sale.” And then, two years later in 1901, the Montana legislature elected him again. In this instance, unlike in 1899, he was allowed to serve out his term.

    Clark’s was not the only case which rose to the level of a full scale investigation. Illinois Senator William Lorimer (1861-1934), a well-known Republican political boss from Chicago, was also forced out of the Senate in 1912 after an investigation concluded that he had, in fact, purchased his seat in 1909 by bribing certain members of the Prairie State’s legislature. But while such instances were certainly shocking in their impropriety, they were ultimately far outnumbered by instances of extreme partisan deadlock. In the middle of the 1850s, to quote but an early example among many, the Indiana legislature became hopelessly stalemated upon the formation of an alliance between members of the newly formed Republican Party and the rapidly fading Whigs. While the joint caucus was able to claim a majority – and thus take control of the chamber’s agenda – they proved entirely incapable of passing any substantial legislation, the result of which was that for a period of almost two years (March 1855 – February 1857) one of the Indiana’s Senate seats remained entirely vacant. Less then ten years later, in 1865, the legislature of New Jersey just barely managed to elect one John P. Stockton, the scion of a prominent local family, to one of its own seats in the Senate. Upon taking his seat, however, the legitimacy of Stockton’s election was immediately called into question. The junior Senator from the Garden States, is seemed, had been elected by a plurality of votes (40 out of 81) rather than a majority. While such an outcome was prohibited neither by the laws of the United States nor by the terms of the Constitution, Stockton’s colleagues nevertheless decided that it constituted valid grounds for his expulsion.

    Granted, the Republicans who controlled the chamber at that time may have simply taken the excuse to force out a Democrat in the hope that New Jersey would send them a member of their own party in his place, but this would still not seem to account for the series of events which immediately followed. Eager, evidently, to prevent another election like that of Stockton’s, Congress then proceeded – over the course of the spring and summer of 1866 – to draft and approve the passage of piece of legislation known formally as, “An Act to regulate the Times and Manner of holding Elections for Senators in Congress.” One of the only instances in which Congress has chosen to invoke its authority under Article 2, Section IV of the United States Constitution to regulate, “The Times, Places and Manner of holding Elections for Senators and Representatives [,]” the act put in place what was essentially a two-stage process by which state legislatures were to choose Senators. In the first stage, the two chambers of the relevant legislature would hold separate votes during which each member would submit their ballot for Senator. After the votes of each chamber had been tallied, the two would then meet to compare their results. If any candidate received a majority of support in both chambers, they would be declared the winner. If no candidate had received a majority, however, the election would then proceed to the second stage. At this point, the two chambers would vote jointly at least once every day that they remained in session until they agreed upon a single candidate.

    The states, it bears noting, had reason to take action on this issue as well. Not only did they have a vested interest in preventing the federal government from continuing to play an active role in regulating elections at the state level, but they also derived no benefit whatsoever from failing to elect the Senators to which they were entitled by the Constitution. In consequence, in the midst of the Populist Movement of the early 1890s and the Progressive Era of the 1900s and 1910s, several states adopted policies which sought to place the selection of US Senators substantially in the hands of their respective populations. Eliminating the role of the legislatures entirely would have required amending the Constitution, of course, but the states themselves could and did add additional stages to the process of election. Oregon was the first to do so when, in 1907, its legislature agreed to erect a kind of proto-primary system. A set of candidates were to be winnowed down by way of a popular vote, the results of which would then be sent to the legislature with the understanding that the assembled lawmakers would honor the choice that had been made by their constituents. Nebraska adopted a similar system within a very short period, and by 1912 as many as twenty-nine states chose their Senators by way of party primaries or referenda. The direct results of these developments were essentially twofold.

    In the first place – as was the intention - fewer occasions arose in which a state failed to elect a Senator for years at a time. This was never a very common occurrence, to be sure, but it was certainly a source of acute embarrassment whenever it did arise. The state of Delaware, for example, between 1901 and 1903 went without any representation in the Senate whatsoever. The Senate did not cease to function for the lack of these two Senators, of course, and the Diamond State still enjoyed representation in Congress in the form of its single seat in the House of Representatives, but its inability to make itself heard during the bulk of President Theodore Roosevelt’s (1858-1919) first term in office – during which time the Senate confirmed several cabinet nominees and two Supreme Court Justices – was most definitely a problem. In addition to effectively fixing said problem, however, the reformation of Senate election procedures in the states had an additional benefit that proved more consequential in time. As more and more Senators were elected as the result the aforementioned populist reforms, the Senate as a whole began to shift in favor of an amendment to enshrine popular election in the United States Constitution.

    Previously, the Senate had been the home of some of the most dedicated opponents to the very concept of population election. Massachusetts Republican George Frisbie Hoar (1826-1904), for example, observed in 1893 that those who called for the direct election of Senators on the grounds that election by a state legislature might result in the appointment of a Senator by the representatives of something less than a majority of a state’s population had not given careful consideration to the vicissitudes of the popular vote. “In every close State [,]” he said, “The outlying parties, the irreconcilable, not occasionally or accidentally, but as a rule, poll more votes than the difference between the two great parties, and that means that, as a rule, in the close States of the Union no one is elected by a majority vote.” This was, to be sure, a somewhat cynical take on the issues at hand, but cogent one all the same. New York Republican Elihu Root (1845-1937) supplied a similarly penetrating observation when he noted in 1911 that the idea of popularly electing United States Senators made very little sense when the, “Whole proposition rests upon the postulate of the incapacity of the people of the United States to elect honest and faithful legislatures [.]” If the American people could not be trusted to choose state legislators capable of either resisting corruption or steering clear of deadlock, Root was essentially asking, why should anyone have thought it likely that they might do a better job at choosing Senators? These were, without a doubt, very effective arguments, not the least of which because they cut to the very heart of the American obsession with democracy and majoritarianism. But by the turn of the 20^th century, such efforts were increasingly in vain. Populism and reform were the dominant forces of the moment.

    The extent to which the various states began to embrace the ad-hoc solutions discussed above would seem to prove out this fact. The appeal of direct election may have been somewhat superficial – given that, speaking practically, the American people were not more qualified than their legislators to make an appointment to the Senate – but it was nonetheless exceptionally powerful. As in the 1830s during the ascendency of Andrew Jackson (1767-1845), the American people in the 1890s, 1900s, and 1910s were in the process of undertaking a general reexamination of the nature of democratic government in the United States. “Vested interests” – which term potentially encompassed banks, corporations, and the traditional political class – were increasingly held in contempt as sources of corruption and waste while “the people” – being sensible, hard-working, and unblemished by politics – were heralded as the rightful stewards of their nation’s affairs. As the great populist crusader William Jennings Bryan (1860-1925) put it during his time in Congress in 1893, “If the people of a State have enough intelligence to choose their representatives in the State legislature […] they have enough intelligence to choose the men who shall represent them in the United States Senate.” To this observation might fairly be added a comment rendered by Indiana Senator David B. Turpie (1828-1909) near the end of his own tenure in 1897. Reflecting on the myriad changes that the American republic had undergone since the adoption of the Constitution in 1788, he memorably remarked that the inhabitants of the contemporary United States were, “A new people living and acting under an old system.” Change, it followed, was necessary, if only so that American institutions kept pace with the shifting character of the American people.

    The culmination of these sentiments was somewhat slow in coming, it must be said, though when it finally did arrive the desired changed was accomplished with surprising swiftness. Beginning in the 1890s, various states began to petition Congress to take up an amendment to the Constitution allowing for the direct election of United States Senators. The intention, at the time, was for Congress to see to the drafting of the measure which the states would then proceed to ratify. This same procedure had produced every previous amendment, and it was only natural that it be adopted as the default approach by the aforementioned reformers. While a two-thirds majority in favor of an amendment was achieved in the House as early as 1893, however, the Senate showed itself to be comparatively intransigent. On three occasions – in 1900, 1904, and 1908 – the relevant House resolution reached the Senate for further consideration and on all three occasions the Senate simply let the measure expire. The likes of Hoar and Root were still in a dominant position in those days, and they had no intention whatsoever of allowing even a discussion of reform to proceed. In response to this procedural roadblock, the advocates of direct election in the states then turned their attention to the other means of amendment provided by the text of the Constitution. Article V, it was true, declared first and foremost that, “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to [the] Constitution [,]” but it also made provision for a second method by which such modifications might be drafted. “On the application of the legislatures of two thirds of the several states,” it said, Congress, “Shall call a convention for proposing amendments [.]” This procedure, as aforementioned, had never been tried, but its advantage, under the circumstances, was obvious enough. By effectively circumventing Congress by way of a national convention, reformers in the states might actually manage to achieve the reform which they so desired.

    Accordingly, by 1910, as many as thirty states – out of a total of forty-six – had submitted a request to Congress for the summoning of a constitutional convention pursuant to the cited terms of Article V. In addition, the California legislature had instructed that state’s Senators to vote in favor of a direct election amendment in the event that one arrived on the Senate floor, and two other legislatures had submitted formal petitions to Congress urging the leadership of both chambers to take up this exact proposition. The results of the midterm elections of 1910 helped to increase the pressure for reform yet further. Of the thirty Senators who were elected that year, nearly half (fourteen) had been chosen by way of popular primaries in their respective states. With the admission to the union of two further pro-reform states in the offing – namely Arizona and New Mexico – it seemed by the end of 1911 that the desired amendment was bound to be approved one way or another. The House, by the spring of that year, had already approved another joint resolution calling for such changes to the Constitution as would render Senators subject to popular election. And while it appeared, thanks to a disagreement over the extent of Congress’s ability to prescribe specific election procedures, that the Senate might once again fail to respond, a proposal submitted by Kansas Republican Joseph L. Bristow (1861-1944) eventually succeeded in gaining majority support. By a vote of 64-24, the Senate finally approved a resolution in favor of the direct election of its members. The following spring, after the two chambers had conferenced and produced a draft amendment between them, the measure was approved for a second time by both the Senate and the House. Officially submitted for ratification on May 13^th, 1912, the 17^th Amendment was then approved by the required three-fourths of the state legislatures on April 8^th, 1913, with the final honors falling to Connecticut.

    Before moving on to a consideration of the effects which the adoption of the 17^th Amendment has wrought upon the character of the United States Senate, however, it would seem worthwhile to first reflect on the aforementioned swiftness with which the thing itself was accomplished. As of 1910, consequent to several failed attempts by the House to forward a resolution for an amendment to the Senate, it definitely seemed as though the secondary procedure outlined in Article V of the Constitution was likely to be invoked. Thirty of the requisite thirty-one states had thus far submitted a formal request to that effect, and the pending addition of the pro-reform states of Arizona and New Mexico in 1912 was almost certain to tip the scales. But then, in that same fateful year of 1912, the Senate seemed to experience a sudden change of heart. Its members quibbled, to be sure, over the exact nature of the reform which they were now prepared to approve. But approve it they ultimately did. Was this because a sufficient number of them were the product of popular primaries in their home states that they had nothing to fear from making direct elections the supreme law of the land? Quite possibly. Had they finally become sensitive to the sheer scale of support which the desired reform had managed to amass? Maybe so. Indeed, it may have been some combination of both these things. But there may also have been a somewhat more cynical explanation. The Senate may simply have acted strategically in an effort to preserve what it could of an otherwise beneficial status quo.

    By 1910, as aforementioned, thirty states had formally petitioned Congress to call a constitutional convention for the purpose of considering an amendment mandating the direct election of United States Senators. Upon the submission of a request by a thirty-first state – amounting to two-thirds of the total number of states – Congress would have been obliged to summon the aforementioned gathering. Indeed, they would have no choice in this act. The text of Article V declares that, “On the application of the legislatures of two thirds of the several states [Congress] shall call a convention for proposing amendments [.]” It does not say that Congress may summon such a gathering. It does not say that Congress should summon such a gathering. Rather, it says that it shall summon such a gathering. Not only is the wording quite plain on the subject, but a number of the Framers explained both at the time – i.e., during the Philadelphia Convention – and thereafter – i.e., during the ratification debate – that Congress would have no alternative but to act. As Alexander Hamilton (1755-1804) put it very succinctly in the text of Federalist No. 85, “The words of this article are peremptory: the Congress “shall call a convention.” Nothing in this particular is left to the discretion of that body.” But while there should accordingly have been no ambiguity as to the responsibility of Congress in the event of a successful petition, it was less clear – and to some extent remains so – whether of not the resulting convention might be limited in its scope of action.

    The issue, in essence, comes down to whether an Article V Convention – as it is sometimes known – might be limited in its scope by the nature of the authorizing petitions or by the mandate of Congress. If the various states, in their petitions to Congress, had declared that the purpose of the desired gathering was to draft an amendment for the purpose of making Senators subject to popular election, the resulting convention might conceivably be restricted to considering just that one subject. In addition, while Congress may not have had any choice in whether it authorized such a gathering or not, it might possibly have been able to limit its scope by way of a specific declaration within the relevant legislative text. The Article V Convention being an entirely untested procedure, one truly could not say. Just so, it might also be true that, regardless of what the states may have declared in their petitions, a convention so summoned could not be limited in scope by anything other than the desires of its attending delegates. The text of the Constitution does not state that a summoned convention cannot stray from the objective which it was originally authorized to consider. So summoned, therefore, it might conceivably draft any number of amendments on any number of subjects, each of which to be submitted to the approval of the states in turn. There exists no clarity on any of these points because, as aforementioned, the requisite clause of Article V has never been invoked. Congress has never tried to limit the scope of an Article V Convention, an Article V Convention has never attempted to stray beyond its declared objective, and the Supreme Court has never been asked to render an opinion on any of it.

    From the perspective of the United States Congress in 1912, therefore – or indeed, of any Congress at any time – the summoning of an Article V Convention would seem to represent a substantially terrifying unknown. The extent to which Congress might deny such an outcome may not be in question – it cannot, as aforementioned – but it remains to be seen whether the resulting convention might be limited in its scope by Congress, limited in its scope by the wording of the state petitions, or entirely unlimited in its ability to draft amendments to the Constitution. In the event that the latter proves to be true – that a constitutional convention, called by the states, can consider any kind of modification which the attending delegates desire – what then might become of the basic framework of the United States Government? The states might have intended to call a convention for the purpose of making one specific alteration, but what if, once convened, the attendees mutually agreed to expand the scope of their efforts? What if they decided to simply abolish the Senate? Or to reduce the office of President to something substantially ceremonial? If the Supreme Court, when pressed to do so, granted the most generous reading possible to the authority of an Article V Convention, all of this would be well within the relevant delegates’ authority. And all of it, more to the point, would take place quite outside the influence of Congress.

    This, in essence, is what any Congress has to fear from the summoning of a constitutional convention under the terms of Article V. As long as the House and the Senate cooperate in the drafting of amendments to the Constitution – even when compelled to do so by popular pressure – the elected officials therein can always decide between them how any given reform is ultimately structured and implemented. And so, while the end result may alter the balance of power within the federal government in a way not entirely to their liking, they might at least be in a position to mitigate the potential effects thereof. If pressed by popular demand to change the means by which House seats are apportioned, for example, they might do so in such a way as to ensure that as few incumbents as possible end up losing their districts. By giving up the task of drafting amendments to a convention called by the states, however, Congress would lose this vital protection. It would lose the ability to shape the next phase in the history of the United States Constitution. It would lose the ability to ensure that its own members aren’t amended out of a job. No Congress ever wants this to happen, and so no Congress has ever allowed an Article V Convention to take place. On several occasions, it must be said, they left it very close before stepping in, 1912 being one of them. During that year, the admission of the reformist governments of New Mexico and Arizona would almost certainly have forced the calling of a constitutional convention. But before that could happen – before Congress could be robbed of its ability to influence the resulting amendment or potentially to limit the scope of the aforementioned convention – the Senate finally agreed to consider an amendment that would mandate the direct election of its members. In part, to be sure, this was an honest and altruistic decision. As noted above, over half of the sitting Senators in 1912 had gained their seats as a result of popular primaries in their home states. But it must also have been, in no small part, a matter of self-preservation. Rather than allow the American people to gain access to what had the potential to be an extremely powerful means of venting their frustrations with the state of the contemporary American republic, the members of the Senate instead opted to swallow the bitter pill of change themselves in order to mitigate its effects as much as possible.

The Purpose and Powers of the Senate, Part XX: “The Halting Process of Our Government”

    1964, without a doubt, marked a major turning point in the history of the filibuster as a procedural tactic in the United States Senate. Whereas, for the forty years preceding, it had been the sole means by which the chamber’s Southern contingent succeeded in staving off the passage of once piece of civil rights legislation after another, 1964 ushered in a new – if brief – era wherein the cloture motion entirely lost its opprobrium in the face of rigorous media scrutiny and a rapidly shifting national mood.

    President John F. Kennedy (1917-1963) initially recommended the adoption of new federal civil rights legislation in the summer of 1963 in the aftermath of major protests – and an associated crackdown – that had occurred that spring in the city of Birmingham, Alabama. Seeking to expand upon the relatively anemic Civil Rights Act of 1957, Kennedy was supported and spurred along by the organizers and attendees of the March on Washington for Jobs and Freedom in August of that same year – among them activists like Bayard Rustin (1912-1987), John Lewis (1940-2020), James Farmer (1920-1999), and Dr. Martin Luther King Jr. (1929-1968) and labor leaders like A. Philip Randolph (1889-1979) and Walter Reuther (1907-1970) – and by October had begun the process of lining up support in the House. His assassination the following month did bring these efforts to a definite standstill as the nation paused to mourn the first death of a sitting President since 1945. But within a few days, in the form of an address to a joint session of Congress, the newly minted President Lyndon Johnson (1908-1973) called for them to swiftly resume. “No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest possible passage of the civil rights bill for which he fought so long” said Johnson to his former colleagues in the House and the Senate. The gauntlet, effectively, had just been thrown down.

    Public opinion began to shift decisively in favor of the bill as it began to make its way through the House of Representatives. Having been referred – as per procedure – to the Rules Committee in November of 1963, the draft legislation thereafter spent several months languishing under the influence of Chairman Howard W. Smith, a Virginia Democrat and staunch segregationist whose overt intention was to keep the measure from ever receiving a vote on the House floor. New York Democrat Emmanuel Celler (1888-1981) responded by filing a discharge petition in an attempt to force the bill to the floor, but such a maneuver required overall majority support to succeed, and by the beginning of the chamber’s winter recess the document was still fifty signatures short. There were those among the holdouts who definitely supported the civil rights bill – or who at least felt it ought to be given an up or down vote in the House – but many of them remained reluctant to take such aggressive action in its favor. Discharge petitions both were and remain very rare and are generally seen as a rebuke to the leadership of the majority party. Rather than risk embarrassing those with whom they would otherwise seek to curry favor, many Democrats accordingly opted to simply let the bill die quietly in committee. That is, until the House returned to its business in January of 1964. It had by then become clear to those wavering members of the majority that the American public had come to favor the bill as well. Not all of the public, to be sure, for there were still – and would remain – rabid segregationists in the South. But the more populous North wanted the bill to come to a vote. In the face of the potential usurpation of his leadership – for the petition now seemed almost certain to receive enough signatures to pass – Chairman Smith finally relented and allowed the draft bill to leave his committee and proceed to a vote on the House floor. It was thereafter passed on February 10^th by a majority of 290 to 130.

    Passage in the Senate, of course, was another matter entirely. Under normal circumstances, as in the House, the bill would at some point in its consideration be placed at the mercy of a committee chairman. And in the Senate, as in the House, there was no shortage of segregationist Southern Democrats in overall control of key committees. Majority Leader Mike Mansfield (1903-2001) managed to avoid a repeat of the drama in the lower chamber by way of some cunning procedural maneuvers – bypassing the scrutiny of Judiciary Chairman and Mississippi Democrat James Eastland (1904-1986) by essentially forgoing a second reading – but there still remained one essential means at the disposal of the chamber’s Southern contingent by which they could conceivably have held up the bill in perpetuity. That was, of course, the filibuster. When the civil rights bill arrived on the floor of the Senate on March 30^th, 1964, Democrat and former Governor of Georgia Richard Russell (1897-1971) accordingly led a group of nineteen Senators – among them seventeen of Russell’s fellow Democrats and one Republican, John Tower (1925-1991) of Texas – in a bid to hold the floor continuously until such time as the offending legislation was withdrawn. “We will resist [,]” said Russell, “To the bitter end any measure or any movement which would tend to bring about social equality and intermingling and amalgamation of the races in our [Southern] states.”

    For the next seventy-fours days, the obstructionists essentially held the Senate hostage in an attempt to force their colleagues to give up their support for the bill in question. The likes of Strom Thurmond (1902-2003), J. William Fulbright (1905-1995), and Sam Ervin (1896-1985) each took their turns. By day fifty-four, Senator Mansfield finally hit upon a potential solution. With the cooperation of his Republican opposite number, Illinois’s Everett Dirksen (1896-1969), the Majority Leader and his fellow Democratic supporters of the civil rights bill introduced a compromise draft somewhat weaker in its enforcement powers than that which had been passed by the House but not so weak that the House would need to take very long to reconsider it. As West Virginia Senator Robert Byrd (1917-2010) wound down the fourteen-hour oration which formed the bulk of his contribution to the filibuster on June 10^th, 1964, Senator Dirksen then formally submitted a vote for cloture on the pending motion. When the votes were finally tallied – among them that of California Democrat Clair Engle (1911-1964), whose terminal illness prevented him from speaking and who accordingly pointed to his left eye to signal his affirmation – the ayes carried the day by a margin of 71 to 29. For only the second time since 1927, the Senate had voted in favor of cloture, and for the first time in its history it voted for cloture on a bill affecting civil rights. Nine days later, the full Senate approved the measure.

    The national mood – and the Senate’s awareness of the same – had certainly helped to make this outcome possible. Not only had President Johnson succeeded in tying public perception of the bill to the legacy of the recently departed and much-beloved President Kennedy, but news coverage of the aforementioned filibuster also helped to focus public attention upon the intransigence of the Southern obstructionists and built up a wellspring of popular support for the bill. Of particular note was the coverage provided by CBS reporter Roger Mudd (1928-2021), who had previously anchored the network’s coverage of the aforementioned March on Washington. Every day for the length of the incident, Mudd updated the American television viewer on the ongoing state of affairs in the Senate, marking the comings and goings of the participants and interviewing Senators on all sides of the issue. As the filibuster neared its conclusion, the very nature of this coverage became a topic of conversation in turn. Writing for the New York Herald Tribune, journalist John Horn (1917-1993) observed at the time that Mudd’s, “Continued presence at the scene of Washington inaction has personalized and dramatized the halting process of our government to the average viewer in a way no amount of words or secondary reports could have.” Never before had a Senate filibuster been so closely scrutinized by such a large share of the population. Forced into a position of self-consciousness as a result of having to publicly defend their position whenever they left the Capitol and ran into some relentless reporter like Mudd, the Southern obstructionists steadily lost ground in terms of public relations and public support. Meanwhile, as the general mood of the nation turned steadily against the bill’s opponents, wavering Senators who might previously have hesitated to cut debate short came to realize that they no longer had anything to fear by voting for cloture.

    As significant as these developments were, however, in consolidating popular support for further federal ani-discrimination laws, the failure of the filibuster of the Civil Rights Act of 1964 did not mark the death of the tactic as a whole. On the contrary, while the era in which the Senate’s Southern contingent had been able to consistently defeat federal civil rights laws by way of the filibuster was well and truly over, the next several years of American legislative history would nevertheless be defined by further attempts by Southern Senators to talk civil rights bills to death. In 1965, for example, when the Voting Rights Act was submitted to the scrutiny of the Senate on April 22^nd – and after Majority Leader Mansfield once more ensured that Senator Eastland could not use his authority over the Judiciary Committee to kill the bill by inaction – Southern Senators spend over a month offering amendment after amendment in an attempt to weaken the legislation until the chamber finally voted for cloture on May 25^th. The bill was approved by the Senate the following day by a margin of 77-19. Three years later, when the text of another civil rights bill came before the Senate in January of 1968, the result was yet another filibuster led by the same group of Southern obstructionists. Granted, in this particular case the fate of the legislation was tied up with more than just overcoming Southern recalcitrance. The mid-term elections of 1966 had brought a number of liberal Republicans into the Senate – perhaps most notable among them one Edward Brooke (1919-2015) of Massachusetts, the first Black Senator to serve since the 1881 – and the Republican caucus thereafter became split between those in favor of federal housing protections and those who felt that such an intervention by Congress into the conduct of private businesses represented an unconscionable federal overreach. Thanks to a great deal of public and private negotiation, however, the Republican votes necessary to invoke cloture and defeat the filibuster were ultimately secured on March 4^th, albeit by the thinnest possible margin. One week later, on March 11^th, 1968, the bill itself was approved by the Senate by a final tally of 71-20. For the third time in four years, filibuster had failed to serve its accustomed purpose.

    Notwithstanding the irrelevance to which the events of the late 1960s seemed to have relegated the filibuster, the year 1970 witnessed yet another rules change that brought about its almost total rejuvenation. In large part, this rules change was the brainchild of the aforementioned Senator Mansfield, whose experience of successive filibusters led him seek some means of keeping the Senate’s schedule from being so frequently disrupted. The solution which he ultimately hit upon – and which remains extant to this day – was the adoption of the so-called “two track” system. Whereas, up to that point, only one piece of legislation could be considered by the Senate at any given time – the result of which was that a filibuster brought the business of the chamber to a halt – Mansfield’s reform would allow up to two pieces of legislation to be considered on any given day. Different portions of the daily schedule would be allocated to each of the relevant bills, the results of which – Mansfield claimed – would be a boon to both the supporters and detractors of a filibuster. Its opponents, on the one hand, would no longer be forced into the position of having to unexpectedly scrape together a two-thirds majority just to keep the chamber from becoming indefinitely bogged down. Faced with a sudden filibuster, they could simply decide to wait out the obstructionists while continuing to put in work on whatever bills came up in the second track. And on the other hand, the instigators of a filibuster would no longer be forced to hold the floor for every hour of the legislative day. For one half of the daily schedule, they would make their speeches, and read aloud their cookbooks, and do all that was in their power to prevent whatever bill it was they didn’t like from coming to the floor for a vote. And for the other half of the day, while a different piece of legislation was being debated in the upper chamber, they could rest, reconsider their strategy, shore up potential weaknesses, or seek desirable amendments. In either case, a two-track system would take pressure off of the membership of the Senate and allow its business to be transacted more smoothly.

    Unsurprisingly – given that Mansfield tailored his proposal to appeal to both sides of the issue – the two-track system was ultimately adopted in the Senate by unanimous consent. From 1970 onward, no filibuster would again be able to effectively shut down the upper chamber until cloture was achieved or the affected bill was withdrawn. Filibusters could still happen – and would still remain a powerful tool in the hands of the minority – but they would no longer affect the daily business of the chamber in quite so dramatic a fashion as they once had. But while the purpose of this reform was most assuredly to make the filibuster somewhat less painful for the Senators involved – specifically within the political context of repeated clashes between a conservative, bipartisan minority and a reformist, bipartisan majority – its legacy has actually been one of facilitating obstructionism in the Senate rather than meaningfully reigning it in. The reasons for this, broadly speaking, are threefold.

    First, the very nature of the various pieces of legislation which ultimately succeeded in breaking the back of the Southern, anti-civil rights filibuster augured tremendous changes in terms of ideology and composition for the political parties involved. Having been defeated – repeatedly and publicly – in their attempts to preserve racial segregation chiefly as the result of efforts made by more liberal members of their own party – thus forcing them to confront the fact that theirs was increasingly no longer the party of states rights and limited government – Southern Democrats began slowly but surely drifting into the Republican fold over the course of the latter 1960s and into the 1970s. The result was a realignment of the political divide that had characterized American political culture since the age of Andrew Jackson (1767-1845). Increasingly lacking a very large, influential, and conservative Southern wing, the Democratic Party became the largely unalloyed supporter of liberalism and liberal policy. And having become a mixture of small-government fiscal conservatives and small-government social conservatives, the Republican Party slotted itself into the role of opposing most significant expressions of federal power and supporting greater discretion on the part of the states. The central impetus for significant internal conflict among their respective memberships thus largely ameliorated – at least from the perspective of the turbulent 1960s – the two parties instead found themselves clashing more often with each other on most high-level issues. The filibuster – having been ostensibly robbed of its least desirable aspects – was ripe for deployment in these newly-energized clashes, and their frequency accordingly increased as the parties gradually settled into their newly consolidated personas.

    The second reason why the 1970s witnessed the beginnings of a dramatic increase in the use of the filibuster – notwithstanding Senator Mansfield’s attempt to render the practice less disruptive – had to do with the moral significance of the “filibuster craze” of the mid-to-late 1960s. Whereas, over the course of the first half of the 20^th century, the filibuster tended to be deployed quite sparingly, was almost always the result of Southern Senators seeking to defeat civil rights legislation, and almost always succeeded – all according to the aforementioned Southern strategy – the broader social and political circumstances surrounding the filibusters of the Civil Rights Era (1954-1968) helped to break any lingering taboos concerning either their frequent use or the invocation of cloture as a means of defeating them. On three notable occasions between 1964 and 1968, Southern Senators had attempted a filibuster in response to the immanent passage of civil rights legislation and on all three occasions they had failed. Not only did this surely rob the filibuster itself of whatever prestige with which the aforementioned Southerners had sought to imbue it, but it entirely de-stigmatized the notion of invoking cloture. From something which had been attempted very rarely and which succeeded even less often than that, cloture – like the filibuster itself – had simply become another useful tool in the Senate’s procedural toolbox.

    The third reason for the proliferation of the filibuster that followed the adoption of the two-track system in 1970 is what one might simply call a matter of time. Unlike during the era of the “heroic” filibuster of the early 20^th century – or during the interwar period when Southern-led anti-civil rights filibusters almost invariably succeeded – the Senate which emerged out of the New Deal, WWII, and the major domestic reforms of the 1960s had far more to do during any given session than had ever been the case at any previous point in American history. That is to say, a far larger swath of domestic policy now fell within the ambit of the United States Senate. But while the responsibilities of the Senate substantially expanded as the federal government took on an increasingly active role in the life of the average American citizen, the amount of time within which these responsibilities could feasibly be discharged could not be increased indefinitely. Senators, as a result, became more protective of their time and more sensitive to the notion of having it disrupted. The two-track system, in theory, would seem to present an obvious counterweight to this sense of urgency. The rules change may have made it much easier to sustain a time-wasting filibuster, but it also made it possible to essentially lay a filibuster to one side without defeating it. Senators who were especially keen on preventing a given bill from reaching the floor could do so without also delaying every other piece of business on the schedule. But what if, as this collective sense of urgency increased, Senators also became less cautious in their use of the filibuster? What if, as a result of both the de-stigmatization that had occurred over the course of the late 1960s and the creation of a mechanism by which the filibuster was ostensibly rendered less troublesome than ever before, Senators actually became more willing to filibuster any given piece of legislation? And what if an increased sense of partisan polarization also made members of both parties serving in the Senate feel as though they had no choice but to oppose their opponent’s agenda with a greater sense of ruthlessness than at any point since the Civil War?

    The answer to all of these questions, of course, is that the present status of the filibuster would effectively be achieved. Beginning in the 1980s and 1990s and continuing – seemingly unabated – into the present day, Senators have collectively brought themselves to a place wherein filibusters are the norm and virtually every piece of legislation that comes to the floor will do so only once it has been guaranteed the support of a two-thirds majority. The reasons for this, as aforementioned, are threefold. In the midst of increasing partisan polarization, Senators now feel compelled to oppose any action on the part of their opponents that even vaguely appears to convey some manner of advantage. At the same time, Senators in the current era are far less judicious in their use of the filibuster than their forbears had been prior to the 1960s and are also far less concerned about the supposed moral implications of cutting off debate by imposing cloture. The adoption of the two-track system in 1970 is one of the primary causes of this particular development, though the defeat of several prominent filibusters between 1964 and 1968 made an important contribution as well. And finally, as the Senate’s responsibilities have expanded almost beyond what its calendar can reasonably accommodate, even the threat of a filibuster has become as good as one which is actually carried out. Senators have become so eager to avoid having a sudden and unexpected delay dropped into the middle of their collective schedule that they now refrain from introducing legislation at all unless they know that it has the support of a two-thirds majority. Gone are the cookbooks, the rambling monologues, and the trips to the Senate commissary; wannabe obstructionists need no longer even speak. All that they must do in order to get what they want – that is, to prevent a given bill from coming to the floor for a vote – is indicate, in so many words, that they would filibuster it if it did.

    Of particular interest in terms of this latest development – though it might fairly be said of the entire concept of the filibuster – is the extent to which it seems to both gives rise to and stems from a kind of doublethink on the part of the membership of the Senate. The entire reason that the present version of the filibuster – what one might call the “stealth filibuster” or the “implicit filibuster” – has proven so successful and enduring is that most Senators – and certainly those in a position of leadership – perceive a sudden slowdown in the upper chamber’s business to be a very serious threat. Doubtless, this is due in large part to the punishment which they imagine they would receive on the part of their constituents if they were to allow the Senate’s legislative calendar to be unexpectedly disrupted by successive attempts at minority obstruction, but the mere fact of it is what matters just now rather than an examination of its cause. Senators, by and large, don’t want to have to vote for cloture. They want bills to be introduced, to debate them, and then to cast their votes. And they certainly don’t want to spend any more time actually on the Senate floor than is absolutely necessary. But while, in key moments of peak partisan desperation, the leadership of the upper chamber has consented to carve out a few exceptions to the two-thirds threshold for cloture – specifically when voting on cabinet appointments and on nominations to the federal courts – they have persistently refrained from simply doing away with the filibuster entirely. They could do so, without question, so long as their party holds a simple majority in the chamber. Provided that the President is also of their party, they could even accomplish the rules change with a Senate split evenly with their opponents. The fact that they do not is rather easily explained.

    Senators, by and large, have divided feelings on the filibuster. This is not a particularly novel state of affairs – as the preceding narrative has sought to make clear – but it is both a persistent and significant one. When they are in the majority, Senators rail against the filibuster, calling it a mockery of the basic principles by which the American republic is supposed to function. But when these same Senators are in the minority, they cherish the filibuster, calling it a vital safeguard against the tyranny of the majority. They could, while in power, do away with it entirely, but they refrain from doing so because they know that this fact will change. Someday – owing to the ineffable churn of democratic politics – they will lose the favor of the American people and find themselves in the minority. And on that day, they don’t want to be in a position to curse themselves for dispensing with what has proven to be an extremely powerful tool in the hands of the minority party. They know that this benefits their opponents – that when they eventually return to the majority, they will curse themselves for every bill that their opponents defeat without a vote – but they still cannot bring themselves to make the all-important change.

    Because the filibuster, by and large, is both the bane and the salvation of every serving Senator. Liberals – Democrats and Republicans, both – suffered at its hands over the course of the 1960s as they sought to advance a series of extremely consequential civil rights bills only to be stymied by so much reactionary hot air. They succeeded, in the end, but not without a good deal of struggle. And then, in the 1970s, the Senate’s liberals became the obstructionists. Over the course of that decade – particularly during the presidency of Richard M. Nixon (1913-1994) – liberal Senators filibustered against legislation which sought to advance American military involvement in Vietnam and which attempted to undo or roll back previous achievements in the field of civil rights. A number of conservative Southerners who had previously asserted – during the ascendency of their faction in the 1930s, 1940s, and 1950s – that voting for cloture under any circumstances was unacceptable notably found themselves doing exactly that for the first time in their careers during debate on a bill to extend the military draft in 1971. In that moment the filibuster, which had once been the cornerstone of their entire approach to legislation, became a headache to be dispended with. Such would seem to be the very nature of the thing. Senators have almost always held contradictory opinions as to the value of the filibuster. Sometimes they have called it an insult to the Senate’s dignity; a gesture of disrespect; legislative guerilla warfare. And at other times they have treated it with reverence; called it heroic; defended its existence as though their very lives depended on it. They’ve even taken to telling themselves stories about the filibuster and its purpose. It exists to protect the rights of the minority, they say. It serves to prevent the emergence of a tyrannical majority, they say. And while nearly all of them, at some point, suffered at its hands, hardly any of them openly countenanced its wholesale elimination. For the filibuster, they all seemed to have agreed, is as august a tradition as the upper house of Congress has ever known. To imagine the Senate without it is to imagine something other than the Senate.

    None of this is true, of course, if the facts are any indication. The filibuster, as it currently exists, is more an accident than a particularly well-founded tradition. It is not grounded in the Constitution, notwithstanding claims to the contrary, and came into existence, piece by piece, over a period of almost two centuries. There was no guiding hand, only a series of tactical decisions. First, in 1806, the previous question rule was done away with. Not, it bears noting, in order to create space for the filibuster, but rather because the contemporary Senate leadership decided to take a respected comrade’s advice. Then, some forty years later in the midst of a period of extreme partisan rancor, certain Senators hit upon the concept of weaponizing debate. Without any means to force a bill to go to a vote, they reasoned, the majority could do nothing if a handful of determined Senators simply refused to yield the floor. Over the next several decades, the resulting tactic became increasingly formalized and gained a name. To go against the majority was to be a freebooter or a brigand, stubborn but admirable; selfish but heroic. Senators became filibusters. During the Progressive Era, the practice reached something of a sentimental peak, as Senators in favor of both reform and reaction took to it as the last means of making a public stand on matters of principle. And then, during the heightened circumstances which surrounded the American entry into WWI, the American public turned against it. The filibuster was forced to transform itself in order to survive.

    But while this transformation now placed limits upon the ability of Senators to hold the floor indefinitely – thus seemingly weakening its effectiveness – the filibuster itself did not lose favor as a result. Southern conservatives in particular took the tactic to their hearts, building an entire strategy around it in their efforts to preserve the legality of racial discrimination. But though they met with unparalleled success for the next several decades between the 1920s and the 1950s, the 1960s heralded yet another transformation on the part of the Senate filibuster. Owing – not unlike during WWI – to shifting public sentiment and the actions of a particularly canny chief executive, filibusters undertaken with the aim of defeating civil rights legislation during the latter half of the 1960s all failed to achieve their common goal. In the immediate, this changed very little. Bills were filibustered and filibusters were defeated, only for the same thing to happen again. But then, in 1970, this brief churn elicited a response. In an attempt to stop filibusters from becoming quite so difficult both to sustain and to defeat, the contemporary leadership of the Senate enacted yet another fateful reform. A kind of “passing lane” was created whereby the filibuster was to be rendered harmless. A bill could be held up in the morning while another went to a vote after lunch. Obstructionists could take a breather. Everyone could get on with their work. Ideal though such an arrangement may have seemed at the time, however, the adoption of the “two track” system has arguably made the filibuster more of a headache than ever before. Now every bill of political consequence needs the support of a two-thirds majority to succeed. All but the most inoffensive bills are held back until their passage can be guaranteed. The Senate has become infamous for its inability to achieve results.

    Bearing all of this in mind, it would seem fair to draw several conclusions. First – and this absolutely bears emphasizing – the filibuster is not the product of any single person or party. A decision created a loophole, the loophole gave way to a particular tactic, and the tactic evolved and became formalized. Important decisions were made by certain individuals at various points along with process, but no one could be said to be “the creator” of the filibuster. Not the Framers, not Thomas Hart Benton, not Woodrow Wilson, and not Mike Mansfield. Bearing this fact in mind, one would seem bound to further acknowledge the fact that the filibuster does not have a so-called “intended purpose.” As it was not created, whole cloth, by a particular person or group to serve a particular end or intention, it cannot be said to possess a singular, objective significance. Rather, it has served the needs of whomever was wielding it at the time. It is not the means by which the minority protects itself against majoritarian tyranny – except in the stories that Senators tell themselves – but rather the tool through which the minority seeks to frustrate the aims of their opponents. It is a tactic, not a hallowed tradition. And if it is just that – not a law, not a defining principle, but a species of strategic chicanery – then the filibuster can also be altered or abolished. It is, after all, just the product of a series of past decisions. For that reason, it can also be changed or eliminated as the result of future decisions. If a given Senate majority decides that the filibuster no longer serves a useful purpose, they will have as much right to do away with it as their various forbears had to create it. Indeed, they already have done, at least in part. As aforementioned recent political impasses have brought about the elimination of the filibuster in the contexts of both federal judicial nominees and executive department nominees. Doubtless, such an outcome would once have been considered inconceivable. But as it happened in those specific instances, the Senate leadership of the moment made a tactical decision. Only someone blind to the facts could conclude that the same will never happen again.