Is Rick Perry Right That the Seventeenth Amendment Was a Mistake?

Posted in: Constitutional Law

Among the many provocative things Republican presidential candidate Rick Perry has said is that the American people “mistakenly empowered the federal government during a fit of populist rage in the early twentieth century . . . by changing the way senators are elected (the Seventeenth Amendment).”

In this column, we analyze why the Seventeenth Amendment—providing for direct election of U.S. Senators—came about, and whether it would be a good and/or workable idea, as Perry suggests, to repeal it.

The Original Constitution and the Provision for State Legislative Election of Senators

Most historians and legal commentators agree on the basic story of Senate election methods. In 1787, the Framers and ratifiers of the original Constitution chose legislative election largely to safeguard the existence and interests of the state governments. Roger Sherman of Connecticut summed up the thinking of the Philadelphia Convention when he remarked:

“If it were in view to abolish the State [Governments] the elections ought to be by the people. If the State [Governments] are to be continued, it is necessary in order to preserve harmony between the National and State [Governments] that the elections to the former [should] be made by the latter.”

Proponents of legislative election also relied on a secondary (and less oft-invoked) justification—the notion that state legislatures would serve as filters of popular passion and elect a better class of people to the Senate than would be produced by direct election. As James Madison observed in Federalist No. 62, the selection of Senators by state legislatures has the advantage of “favoring a select appointment.”

The Move Toward the Seventeenth Amendment

The move from legislative to direct election, which began in the early to mid-nineteenth century and built up steam with the coming of the Progressive Era, was driven by a variety of sentiments, including: (1) the dissatisfaction with deadlocks in state legislatures that delayed the filling of vacant senatorial seats; (2) the perception that bribery and corruption had tainted the state legislatures’ choice of Senators; and  (3) the belief that state legislatures were not good representatives of the people because they were often gerrymandered for partisan and/or racial reasons.

Related to these more pragmatic concerns was a core philosophical commitment.  Popular election, its backers insisted, would accord better with the democratic ideals on which the Constitution was founded.  The belief that state legislatures, acting as filters, would choose “wiser” or “better” Senators was obsolete by the Progressive Era.  One hundred years of popular election of officials, at both the state and federal levels, had demonstrated that the electorate was “worthy of higher trust.”

Opponents of popular election argued that the charges of corruption in the indirect election process were exaggerated, that popular election would in fact increase the influence of interest groups, and that direct election would reduce the deliberative character of the Senate. Some—although surprisingly few—also pointed out that popular election would reduce the ability of the Senate to represent and protect the interests of states qua states.

These, then, were the forces that culminated in the Seventeenth Amendment’s adoption in 1913.

The Costs of the Seventeenth Amendment

Governor Perry has argued that with the advent of direct election, “states handed over significant chunks of their sovereignty to the federal government” because direct election “dealt [a] blow to the ability of the states to exert influence on the federal government.”  In this regard, we think he has a point.

State legislative election of Senators was, in 1787, thought to be the most important device by which state government could protect itself from federal domination.  Thus, the modern Supreme Court overstated its point when it suggested (most famously, for example, in Garcia v. San Antonio Metropolitan Transit Authority) that courts need not protect states from federal overreaching because the Constitution’s design gives state governments sufficient clout over federal institutions to protect themselves.  This contention improperly ignores the significant change in state influence on Washington that was brought about by the shift away from the election of Senators by state legislators to elections by the people.

One might try to argue that the Seventeenth Amendment reflects a changed national attitude about whether states as states ought to be protected from federal domination. If indirect election was a substantial protection for states in 1787, and if we as a nation made a conscious decision to eliminate that device, perhaps the change reveals how little value we place on protecting states.  But the Court has never made such an argument, and we are glad it has not.

In fact, the Seventeenth Amendment was enacted for reasons largely unrelated to federalism. The weakening effect it had on state government vis à vis the federal government seems to have gone relatively unnoticed, and certainly was not proclaimed as a desired and intended effect.  The move to direct election was more about populism than about federalism, and the loss of strong protection for state government seems like collateral damage.

One Cost of Repeal—the Possibility of Prolonged Vacancies

But none of this means that the Seventeenth Amendment was, on balance, a bad thing, even for those of us who care about making sure states remain free from federal excesses.  And it also does not mean that a return to state legislative election for Senators would be advisable, even if it were politically feasible.

If the history of the Seventeenth Amendment reveals anything, it is the American people’s distrust and skepticism of state legislatures, which in turn reflects a number of specific concerns.

First, those who pushed for direct election of U.S. Senators often blamed partisan excess and party machinations for the legislative deadlocks in filling Senate vacancies. In state legislatures that were closely divided between the two parties, the reform proponents both invoked and criticized these dirty tricks and sharp parliamentary practices.

As famous Senate historian George Haynes has noted, in Colorado in 1903, for example, in an episode cited by Seventeenth Amendment proponents, each party accused the other of fraudulent behavior and tried to enlist the coercive arm of the state to punish the other: “The Democrats had at their back the police of Denver, while the Republicans appealed to the Governor for troops, and for a time chaos and bloodshed seemed inevitable.”

In another notable instance, in Kentucky in 1896, “threats and assaults [between party leaders in the legislature] became so frequent that the Governor felt forced to call out the militia, and for three days the legislature met in a capital filled with troops enforcing martial law.”

Given the recent partisan episodes in Wisconsin and other states (over the treatment of public-sector union members), it is not hard to imagine that strife between the two major parties, and between the upper and lower legislative houses in many states, could result in prolonged Senate vacancies today.  And in a modern era when government must act quickly in times of national emergency, having seats in the Senate open for lengthy periods is even more problematic.

At a minimum, then, any repeal of the Seventeenth Amendment should leave in place the current authorization states enjoy to confer power to Governors to fill Senate vacancies that arise before a senator’s term ends.

The History of Direct Election and the Seventeenth Amendment Reflects a Distrust of Unrepresentative Legislatures

Beyond a concern for partisan gridlock, moreover, is a worry about the possibility of legislative corruption.  As one modern commentator has put it, “[c]orruption, of both state legislators and senators, was the greatest evil blamed on the system of indirect election.”

Whether widely held nineteenth century perceptions of corruption were justified is a more complicated matter. Haynes summarizes: “[h]ow often resort has been had to bribery and corruption [in state legislatures] in connection with senatorial elections it is impossible to determine, but there is indisputable evidence that a number of legislatures were thus tainted in the interest of certain candidates, and that this tendency was not lessened but greatly increased after—if not because of—the enactment of the [federal] law of 1866 [that attempted to reduce the incidence of state legislative gridlock] . . .”

But perhaps even more important than overt corruption is the malapportionment problem that remains vexing today.  Although largely unnoticed in most modern discussions of direct Senate election, the “antiquated systems of representation” that were (and to some extent still are) used to draw state legislative districts, and the resulting unfairness to and misrepresentation of the people, was clear—if not always trumpeted—in the early 1900s. Such malapportioned systems “caused the legislatures’ election of Senators to give far different results from those which would have been yielded by popular elections.”

Haynes describes one instance in which Democrats held the governorship for a thirteen-year period and won the state’s presidential electors repeatedly, suggesting that they had a working majority of the state’s electorate during those years.  He points out: “[B]ut in all that period they elected but one Senator, and he was sent to Washington for but three years to fill a vacancy.”

As one legislative Report advocating the elimination of state legislative elections for Senators in 1892 put the point:

Under the present mode of election of Senators, the legislatures may be induced to make an unfair apportionment, and lay off unequal and unfair districts in order that the party temporarily in control in the legislature may reap the reward of the election of one of its partisans to the Senate and defeat the popular choice of the majority party in the State.

Even those Congresspersons who filed a Minority Report on the question of moving towards direct election acknowledged the problem of political gerrymandering:

[It would be good to] do away with the legislative gerrymandering of the States to secure the election of United States Senators by the party happening to be in power when each new apportionment is made. That this has long been the common practice, no fair-minded, intelligent man will deny. That it will continue, until the temptation to it is removed, or our fundamental law otherwise changed, is to be reasonably expected. The law of retaliation, to some extent, will always be applied.

Of course, certain kinds of gerrymandering—which tended to work to the disadvantage of urban dwellers and (relatedly) persons of color—are no longer possible in light of the Supreme Court’s one-person, one-vote decisions.  But concerns about partisan gerrymandering—by which a party that does not have a statewide majority might still control a majority of state legislative seats—are not eliminated by the one-person, one-vote principle.

In the recent Vieth v. Jubelirer case from Pennsylvania, the Supreme Court recognized the problem of partisan gerrymandering and its incompatibility with democratic self-government, but lamented the inability of federal courts to police the problem.  Any attempted repeal of the Seventeenth Amendment would have to confront the dissonance between electing senators from a body that is the result of deliberately skewed districts designed to thwart the popular will, and electing senators directly from the state polity, which is structurally immune from such distortion and manipulation.

Would Repealing the Seventeenth Amendment Restore Legislative Election in Any Event?

Finally, there is a serious question of whether a repeal of the Seventeenth Amendment could, in practice, ever really return power to state legislatures even if, for federalism reasons, we wanted to do so.

In other words, popular control of Senate elections may be inevitable, no matter what the Constitution formally says.  To see this, consider one additional aspect of the story of the Seventeenth Amendment—an aspect that focuses on innovations by the peoples of the various states.

Beginning in the mid-1800s, state-level political parties and organizations sought ways to involve the people more directly in selecting senate electors. Perhaps the most important step in this journey was the advent of a statewide preference poll to be conducted in connection with the statewide election.

Oregon was a pioneer in this regard in the early 1900s; under the “Oregon Plan” (as it came to be known), state voters held, as part of the regular election, a preference-poll that would not legally elect Senators, but rather would inform the choice to be made by state legislators.  Individual state legislators were encouraged to officially pledge to support the winners of the poll.  Subsequent versions of the Plan sought to bind (as a matter of state law) state legislators to elect as Senator the person who gained the greatest support from the State’s general electorate.  By 1909, Nebraska and Nevada had followed suit, and by 1911 over half the states had adopted some version of these systems.

As one of us (Vik Amar) has previously written (in the Vanderbilt Law Review), “[i]n reality then, the Seventeenth Amendment was a formalizing final step in an evolutionary process. . . . Indeed, by the time of the amendment’s ratification, its need was in doubt. That is, other direct election devices were proceeding apace and becoming the laws of the land even without constitutional change. . . . I think it fair to say that even without ratification of the Seventeenth Amendment, direct election would be with us today in most if not all States.”

Unless the nation were to repeal the Seventeenth Amendment, and at the same time constitutionally prohibit the people of each state from trying to voice their Senate preferences for the benefit of state legislators—which would be a tall order indeed—popular election or something close to it may be likely to persist.