Seventeenth Amendment to the United States Constitution

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Amendment XVII in the National Archives

The Seventeenth Amendment (Amendment XVII) to the United States Constitution established direct election of United States Senators by popular vote. The amendment supersedes Article I, § 3, Clauses 1 and 2 of the Constitution, under which Senators were elected by state legislatures. It also alters the procedure for filling vacancies in the Senate, to be consistent with the method of election. It was adopted on April 8, 1913.

Text

The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.

When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.

History

Originally, although a Senator was elected by a state legislature, he was expected to represent the people of that state (rather than the legislature alone) in the Senate (See Federalist No. 62 through No.66). Also it was believed that while an unqualified candidate might win a popular-vote majority through demagoguery or superficial qualities, the legislature, which could deliberate on its choice, and whose members had been selected by their constituents and had experience in politics, would be safe from such folly. Finally, election by the legislature was expected to insulate Senators from the distraction of public campaigning for election or re-election, leaving them free to concentrate on the great business of the federal government. This last purpose was also served by the six-year term for Senators, compared to the two-year term for U.S. Representatives.

Election by legislatures generally occurred without major problems up to the mid-1850s. There were frequent vacancies of a few days up to several months, but these nearly always occurred when Congress was not in session, and so were harmless. In the 1850s, the sectional crisis over slavery led to increasing partisanship and strife. As a result, Indiana failed to elect a Senator from March 1855 to February 1857, while California failed to elect from March 1855 to January 1857.

California had previously failed to elect from March 1851 through January 1852, missing two months of the first session of the 32nd Congress, while Delaware failed to elect from September 1839 to January 1841, missing the entire first session and half the second session of the 26th Congress.

After the Civil War, the problems multiplied. In one case in the mid-1860s, the election of Senator John P. 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.^[1] Stockton asserted 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. In the worst case, Delaware failed to elect from March 1899 to March 1903; by the end of this period both of Delaware's seats were vacant for two years.^[2]

Reform efforts began as early as 1826, when direct election was first proposed. In the 1870s, citizens petitioned the House of Representatives for direct election. From 1893 to 1902, support for direct election increased considerably. Each year during that period, a constitutional amendment for direct election was proposed in Congress, but the Senate rejected it. In the mid-1890s, the Populist Party put direct election of Senators in its platform, but neither the Democrats nor the Republicans paid much notice at the time.

Direct election was also part of the Wisconsin Idea championed by Republican Senators Robert M. La Follette, Sr., a progressive, and George W. Norris, a reformer. In the early 1900s, Oregon pioneered direct election of Senators. Oregon tried various procedures until success in 1907, and was soon followed by Nebraska.

Popular support of Senatorial election reform grew rapidly at this time. In 1905, William Randolph Hearst acquired Cosmopolitan (then a general-interest magazine), and made it an advocate of direct election. In 1906, Cosmopolitan published "The Treason of the Senate", a series of scathing articles by "Muckraking" reporter David Graham Phillips, which described Senators as corrupt pawns of industrialists and financiers.^[3] A prime example was Senator William A. Clark of Montana.

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. These de facto directly elected Senators supported legislation to promote direct election, but to make direct election general, a constitutional amendment was required.

The Senate had consistently rejected the proposed amendment, and so direct election advocates acted through the states. Amendments to the Constitution are normally proposed by Congress, a two-thirds vote of both Houses being required. However, under Article V, two-thirds of the states may apply for the creation of a convention to propose amendments and the Congress must then create one.

By 1910, almost two-thirds of the states had called for such a convention, which put pressure on the Congress to propose the amendment and eliminate the need for the convention.

Consequently, in 1911, Senator Joseph L. Bristow of Kansas submitted an amendment, supported by Senator William Borah of Idaho, himself a product of direct election. Eight Southern Senators and all of the Republican Senators from New England, New York and Pennsylvania opposed Bristow's amendment. However, the Senate now included many Senators recently chosen by de facto direct election, and they supported the amendment. The Senate passed the amendment on June 12, 1911.

The House debated for almost a year, and passed the amendment on May 13, 1912.

The campaign for ratification was led by Borah and other directly elected Senators. Another important figure was Professor George H. Haynes of Worcester Polytechnic Institute, a political scientist whose scholarly work on the Senate showed the need for direct election.

The amendment was ratified by three states within a month (Massachusetts, Arizona, and Minnesota). However, there was no further progress until 1913, when state legislators elected in 1912 took office. Nine states ratified in January 1913, seventeen in February, four in March, and three in April. On April 8, 1913, the Seventeenth Amendment was adopted when Connecticut became the 36th state (out of 48) to ratify. Louisiana also ratified the amendment in June. Utah was the only state to explicitly reject the amendment.

The Seventeenth Amendment took effect a year and a half prior to the 1914 Senate elections.

Effect

The Seventeenth Amendment restates the first paragraph of Article I, § 3 of the Constitution, but replaces the phrase "chosen by the Legislature thereof" with "elected by the people thereof".

The amendment also supersedes part of the second paragraph of Article I, § 3. The phrase "and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies" is superseded by the second paragraph of the amendment.

Under the original language, when a Senate seat fell vacant, the legislature, which could act immediately, was expected to elect a replacement immediately. If the legislature was not in session, the governor could appoint a person to occupy the vacant seat, but that person would serve only until the legislature next met, when it was expected to elect a permanent replacement.

However, unlike election by the legislature, election of a replacement by popular vote takes a fair amount of time and cost, and may not be realistically possible. For instance, there may be only a few weeks or months left before the end of the present Senate term. Therefore, when and how popular elections of replacement Senators are held is up to the legislature. The replacement Senator appointed by the governor serves until the election specified by the legislature, if one is held, or else till the end of the term.

Several states have interpreted this passage as giving the legislature power to bar appointment by the governor, so that vacancies may only be filled by election. As of 2010, Connecticut, Oklahoma, Oregon, and Wisconsin do not permit appointment by the governor.

The Seventeenth Amendment does not affect the restriction in Article I, § 4, cl. 1, which exempts "the place of Chusing Senators" from the power of Congress to "make or alter" state election laws. If Congress could regulate the "place of Chusing Senators" when the state legislatures chose Senators, then Congress could dictate where a state's legislature had to meet for that purpose, which would violate state sovereignty.

Direct elections held in the states

The following is a list of all direct elections to the Senate.^[4]

Oklahoma, admitted to statehood in 1907, chose a Senator by legislative election three times: twice in 1907, when admitted, and once in 1908. In 1912, Oklahoma re-elected Robert L. Owen by advisory popular vote.

New Mexico, admitted to statehood in 1912, chose only its first two Senators legislatively.

Arizona, admitted to statehood in 1912, chose its first two Senators by advisory popular vote.

Alaska, and Hawaii, admitted to statehood in 1959, have never chosen a U.S. Senator legislatively.

Proposal and ratification

Congress proposed the Seventeenth Amendment on May 13, 1912 and the following states ratified the amendment:^[5]

1. Massachusetts (May 22, 1912)
2. Arizona (June 3, 1912)
3. Minnesota (June 10, 1912)
4. New York (January 15, 1913)
5. Kansas (January 17, 1913)
6. Oregon (January 23, 1913)
7. North Carolina (January 25, 1913)
8. California (January 28, 1913)
9. Michigan (January 28, 1913)
10. Iowa (January 30, 1913)
11. Montana (January 30, 1913)
12. Idaho (January 31, 1913)
13. West Virginia (February 4, 1913)
14. Colorado (February 5, 1913)
15. Nevada (February 6, 1913)
16. Texas (February 7, 1913)
17. Washington (February 7, 1913)
18. Wyoming (February 8, 1913)
19. Arkansas (February 11, 1913)
20. Maine (February 11, 1913)
21. Illinois (February 13, 1913)
22. North Dakota (February 14, 1913)
23. Wisconsin (February 18, 1913)
24. Indiana (February 19, 1913)
25. New Hampshire (February 19, 1913)
26. Vermont (February 19, 1913)
27. South Dakota (February 19, 1913)
28. Oklahoma (February 24, 1913)
29. Ohio (February 25, 1913)
30. Missouri (March 7, 1913)
31. New Mexico (March 13, 1913)
32. Nebraska (March 14, 1913)
33. New Jersey (March 17, 1913)
34. Tennessee (April 1, 1913)
35. Pennsylvania (April 2, 1913)
36. Connecticut (April 8, 1913)

With Connecticut's ratification, three-fourths of the states had ratified and so the amendment was adopted. The amendment was subsequently ratified by the following states:

1. Louisiana (June 11, 1913)
2. Delaware (June 25, 2010)^[6]

The following state rejected the amendment:

1. Utah (February 26, 1913)

The following states did not ratify or reject the amendment:

1. Alabama
2. Kentucky
3. Mississippi
4. Virginia
5. South Carolina
6. Georgia
7. Maryland
8. Rhode Island
9. Florida

As Alaska and Hawaii were not states when the amendment was adopted, their admissions to the Union simply required their adherence to the Constitution in its already-amended form, at the time of their admissions in 1959.

Advocacy for repeal

A movement exists that calls for the repeal of the Seventeenth Amendment, generally opposing it on grounds of federalism and taking away too much power from the states. Proponents of repeal have also accused Senators of being hostage to special interests, the same charge that helped pass the Seventeenth Amendment in 1913.^[7] Repeal gained renewed interest in 2004, when U.S. Senator Zell Miller of Georgia, shortly after announcing his intention to retire from the Senate, introduced a resolution in the Senate to repeal the Seventeenth Amendment. Miller 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.^[7]

Miller's resolution never made it out of committee; it has been noted that it is unlikely for Senators elected by the popular vote to back a change to the method that worked for them.^[8]

The movement to repeal gained new prominence in 2010, with many leaders of the Tea Party movement advocating its repeal on grounds of restoring power to the states.^[9][10] The issue affected several Republican primaries of 2010; support of the Amendment was portrayed as a "Washington insider" position.^[11] Tim Bridgewater, one of the candidates that ousted Republican Senator Bob Bennett in the Utah Republican Nominating Convention, advocates repeal of the Seventeenth Amendment. In the Republican primary of Idaho's first district, both NRCC-endorsed candidate Vaughn Ward and state representative Raul Labrador initially advocated repeal of the Seventeenth Amendment. Ward later said that he supported direct election of Senators, and clarified that his opposition to the Seventeenth Amendment meant that he was in favor of term limits for Senators.^[12] Ward lost the primary to Labrador, who maintained his position in favor of repeal.^[13] In Ohio's 15th District, Republican candidate Steve Stivers initially supported repeal before backing off almost immediately after Representative Mary Jo Kilroy, his Democratic opponent, attacked him over this position.^[11]

Republican Representative Louie Gohmert of Texas's 1st congressional district advocated repeal in March 2010.^[14][15]

Advocacy for prohibiting gubernatorial appointment to the Senate

2008–2009 Senate vacancies

With the commencement of the Obama administration in 2009, four sitting Democratic Senators left the Senate for executive branch positions: Barack Obama (President), Joe Biden (Vice President), Hillary Rodham Clinton (Secretary of State), and Ken Salazar (Secretary of the Interior). Controversies developed about the successor appointments made by Illinois Governor Rod Blagojevich and New York Governor David Paterson. This created interest in abolishing Senate appointment by the governor.^[16][17]

Currently, 46 of the 50 states permit appointment by the governor; only Connecticut, Oklahoma, Oregon, and Wisconsin rely completely on special election. In eight other states, the governor may fill a vacancy by appointment, but a special election is to be held as soon as possible. In the remaining 38 states, the governor may fill a vacancy by appointment, and the appointed Senator will serve until a replacement is chosen by election at the time of the next general election.

The state of Massachusetts has seen considerable recent activity on both sides of this issue. Massachusetts enacted a law requiring a special election in 2004; the Democratic legislature wanted to prevent Republican Governor Mitt Romney from appointing a Republican replacement if Democratic Senator John Kerry had won the 2004 presidential election. After the death of Senator Ted Kennedy in 2009, and with Kennedy's encouragement before his death, the state changed its law to allow the governor to appoint an interim Senator.^[18] Massachusetts still required a special election to be held; a "caretaker" appointment of Paul Kirk by Governor Deval Patrick to succeed Kennedy^[18] was followed by a January 2010 special election in which Republican Scott Brown won.

It has also been noted that since the passage of the Seventeenth Amendment, nearly one quarter of all Senators seated (182) first arrived in the Senate by appointment.^[19][20]

Proposed amendment

In 2009, Senator Russ Feingold of Wisconsin and Representative David Dreier of California proposed an amendment to remove the power of governors to appoint Senators.^[21][22][23] Senators John McCain and Dick Durbin became co-sponsors, as did Representative John Conyers.^[16] On March 11, 2009, a joint hearing was held between the Senate and House subcommittees on the Constitution regarding S.J. Res. 7 and H.J. Res. 21.^[24] On August 6, 2009, the Senate Subcommittee on the Constitution held a separate hearing.^[25]

Notes

See also

• Bybee, Jay S. (1997). "Ulysses at the Mast: Democracy, Federalism, and the Sirens' Song of the Seventeenth Amendment". Northwestern University Law Review (Chicago, IL: Northwestern University Law Review) 91: 505. 
• Hoebeke, Christopher Hyde (1995). The Road to Mass Democracy: Original Intent and the Seventeenth Amendment. New Brunswick: Transaction Publishers. ISBN 9781560002178. http://books.google.com/books?id=ll16O9jdfUEC. 
• Kochan, Donald J. (2003). "State Laws and the Independent Judiciary: An Analysis of the Effects of the Seventeenth Amendment on the Number of Supreme Court Cases Holding State Laws Unconstitutional". Albany Law Review (Albany, NY: Albany Law Review) 66: 1023. 
• Rossum, Ralph A. (2001). Federalism, the Supreme Court, and the Seventeenth Amendment: The Irony of Constitutional Democracy. Lanham, MD: Lexington Books. ISBN 9780739102862. http://books.google.com/books?id=FmvtjKHpgYwC. 
• Rosen, Zvi S. (2006). "The Irony of Populism: The Republican Shift and the Inevitability of American Aristocracy". Regent Law Review (Virginia Beach, VA: Regent Law Review) 18: 271. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=957933. 

References

• U.S. Senate: Direct Election of Senators Note: Much of the text of this article appears to come from the above page, which is in the public domain as a work of the U.S. government.
• NARA - The National Archives Experience: Seventeenth Amendment

External links

• National Archives: Seventeenth Amendment
• CRS Annotated Constitution: Seventeenth Amendment
• The State Legislatures Opposed to the Seventeenth Amendment
• The Campaign to Restore Federalism: A site dedicated to the Seventeenth Amendment's complete repeal