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.