The Seventeenth Amendment

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Seventeenth Amendment to the United States Constitution

The Seventeenth Amendment (Amendment XVII) of the United States Constitution was passed by the Senate on June 12, 1911 and by the House on May 13, 1912. It was ratified on April 8, 1913 and was first put into effect for the election of 1914, during the Progressive Era, with the support of the political group known as the "Progressives". It replaces Article I, Section 3 of the Constitution to the extent that it provides for the direct election of Senators by the people of a state rather than their election or appointment by a state legislature. Also, it allows the governor or executive authority of each state, if authorized by that state's legislature, to appoint a Senator in the event of an opening, until an election occurs.

The other Progressive Era amendments are the Sixteenth Amendment (which authorized the income tax), the Eighteenth Amendment (which started Prohibition of alcoholic beverages), and the Nineteenth Amendment (which gave women the right to vote).

Over the last few years there have been calls for the Seventeenth Amendment to be repealed.

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Historical background

The selection of delegates to the Constitutional Convention established the precedent that states could choose Federal officials at a higher level than direct election. Originally, each Senator was to be elected by his state legislature to represent his state, providing one of the many necessary governmental checks and balances. They also expected that Senators elected by state legislatures would be able to concentrate on the business at hand without regional pressure from the populace, aided by a longer term than Representatives.

This process worked without major problems through the mid-1850s, when the American Civil War was in the offing. Due to increasing partisanship and strife, many state legislatures failed to elect Senators for prolonged periods. For example, in Indiana the conflict between Democrats in the southern half of the state and the emerging Republican Party in the northern half prevented an election for two years. The aforementioned partisanship led to contentious battles in the legislatures, as the struggle to elect senators reflected the increasing regional tensions in the lead up to the American Civil War.

After the war, problems still multiplied. In one case in the mid-1860s, the election of Senator John Stockton from New Jersey was contested on the grounds that he had been elected by a plurality rather than a majority in the state legislature. Stockton defended himself on the grounds that the exact method for elections was murky and varied from state to state. To keep this from happening again, Congress passed a law in 1866 regulating how and when Senators were to be elected from each state. This was the first change in the process of senatorial elections. While the law helped, there were still deadlocks in some legislatures and accusations of bribery, corruption and suspicious dealings in some elections. Nine bribery cases were brought before the Senate between 1866 and 1906, and 45 deadlocks occurred in 20 states between 1891 and 1905, resulting in numerous delays in seating senators. Beginning in 1899, Delaware did not send a senator to Washington for four years.

Reform efforts began as early as 1826, when direct election was first proposed. In the 1870s, voters sent a petition to the House for popular election. From 1893 to 1902, momentum increased considerably. Each year during that period, a Constitutional amendment to elect Senators by popular vote was proposed in Congress, but the Senate fiercely resisted. In the mid-1890s, the Populist Party incorporated the direct election of Senators into its platform, although neither the Democrats nor the Republicans paid much notice at the time. Direct election was also part of the Wisconsin Idea championed by Republican progressive Robert La Follette and Nebraska Republican reformer George Norris. In the early 1900s, Oregon pioneered direct election and experimented with different measures over several years until it succeeded in 1907. Soon after, Nebraska followed suit and laid the foundation for other states to adopt measures for direct election.

After the turn of the century, momentum for reform grew rapidly. William Randolph Hearst expanded his publishing empire with Cosmopolitan, which became a respected general-interest magazine and championed the cause of direct election with muckraking articles and strong advocacy of reform. Hearst hired a veteran reporter, David Graham Phillips, who wrote scathing pieces on Senators, portraying them as corrupt pawns of industrialists and financiers. The pieces became a series titled "The Treason of the Senate," which appeared in several monthly issues of the magazine in 1906.

Increasingly, Senators were elected based on state referenda, similar to the means developed by Oregon. By 1912, as many as 29 states elected Senators either as nominees of party primaries or in conjunction with a general election. As representatives of a direct election process, the new senators supported measures that argued for legislation, but in order to achieve total reform, a Constitutional amendment was required. In 1911, Senator Joseph Bristow from Kansas offered a resolution, proposing an amendment. The idea enjoyed strong support from Senator William Borah of Idaho, himself a product of direct election. Eight Southern Senators and all Republican Senators from New England, New York, and Pennsylvania opposed Bristow's resolution. The Senate approved the resolution largely because of the senators who had been elected by state-initiated reforms, many of whom were serving their first term, and therefore may have been more willing to support direct election. After the Senate passed the amendment, the measure moved to the House.

The House initially fared no better than the Senate in its early discussions of the proposed amendment. In the summer of 1912 the House finally passed the amendment and sent it to the states for ratification. The campaign for public support was aided by Senators such as Borah and political scientist George H. Haynes, whose scholarly work on the Senate contributed greatly to passage of the amendment.

The last state needed to ratify was Connecticut, which ratified it on April 8, 1913, a year and a half prior to the 1914 Senate election in November of 1914.

Effect

The Seventeenth Amendment restates the first paragraph of Article I, § 3 of the Constitution and provides for the election of senators by replacing the phrase "chosen by the Legislature thereof" with "elected by the people thereof." Also, it allows the governor of each state, if authorized by that state's legislature, to appoint a senator in the event of an opening, until an election occurs.

The Seventeenth Amendment did not affect the restriction in Article I, § 4, cl. 1, which prohibits the Congress from exercising its power to "make or alter" state regulations of elections in order to determine where Senators must be chosen. When the State Legislatures chose the Senators, allowing the Congress to regulate the "places of choosing Senators" would have allowed the Congress to essentially stipulate where the State's Legislature had to meet, at least for the purposes of choosing its Senators, which would have been inconsistent with State sovereignty.

Direct elections held in the states

From United States Congressional Elections, 1788-1997, The Official Results by Michael J. Dubin

Oregon 1906

2nd Class Vacancy, term ending 1907
2nd Class Full term, 1907-1913

Nevada 1908

3rd Class Full term, 1909-1915

Arizona 1911 (pending statehood)

1st Class Long term, 1912-1917
3rd Class Short term, 1912-1915

Colorado 1912

2nd Class Full term, 1913-1919

Kansas 1912

2nd Class Full term, 1913-1919

Minnesota 1912

2nd Class Full term, 1913-1919

Oklahoma 1912

2nd Class Full term, 1913-1919

Montana 1912

2nd Class Full term, 1913-1919

Maryland 1913 (first election under Seventeenth Amendment after ratification)

1st Class Vacancy, term ending 1917

1914 All Class 3 Senators, 32 Seats (term 1915-1921)

1916 All Class 1 Senators, 32 Seats (term 1917-1923)

1918 All Class 2 Senators, 32 Seats (term 1919-1925)

With the seating of the Sixty-Sixth Congress, every Senator had been chosen by popular vote, rather than by the State legislatures.

Alaska and Hawaii are the only states never to have elected U.S. Senators under the original design of the Constitution.

Proposal and ratification

Congress proposed the Seventeenth Amendment on May 13, 1912. The following states ratified the amendment:

Ratification was completed on 1913-04-08, having the required three-fourths majority.

The amendment was subsequently ratified by the following state:

Louisiana (1913-06-11)

The following state rejected the amendment:

Utah (1913-02-26)

The following state's legislature failed to complete action on the amendment:

Florida (Never reached the State Senate)

Calls for repeal

There are some states' rights advocates who have called for the Seventeenth Amendment's repeal. For example, conservative former Democratic Senator Zell Miller, upon retiring from the Senate, said “Direct elections of Senators … allowed Washington’s special interests to call the shots, whether it is filling judicial vacancies, passing laws, or issuing regulations.” Thomas DiLorenzo, author of The Real Lincoln: A New Look at Abraham Lincoln, His Agenda, and an Unnecessary War, said "The Seventeenth Amendment was one of the last nails to be pounded into the coffin of federalism in America. Some blame the Amendment, together with the Sixteenth Amendment, for the expansion of the authority of the United States Congress in the 20th century.