Why Did State Legislators Give Away Their Power to Pick Senators? On the Origins of the 17th Amendment

Despite it being the constitutional amendment that most altered the design of the federal government, and despite recent efforts by many prominent figures to repeal it, little is known about why the Seventeenth Amendment passed in 1913. Existing histories of why the Constitution was amended to require direct elections for U.S. Senators, rather than having them appointed by state legislatures, cannot account for two major historical puzzles. Why were state legislatures eager to give away the power to choose Senators? And why was there virtually no discussion of federalism during debates over removing a key constitutional protection for states?

Using both positive political theory and historical evidence, this Article offers a theory that can provide an answer to these questions. Support for direct elections was, at least in part, a result of the rise of ideologically coherent, national political parties. The development of national parties meant that state legislative elections increasingly turned on national issues, from war to currency policy to international trade, as voters used these elections as means to select Senators. State politicians and interest groups supported direct elections as a way of separating national and state politics. Federalism was not invoked against the Seventeenth Amendment because state legislative appointment was frustrating a precondition for the variety of benefits that come from republican federalism, the ability of state majorities to choose state policies. Modern advocates of repealing the Seventeenth Amendment, from Justice Scalia to Gov. Rick Perry, claim the mantle of federalism, but they have the case almost entirely backwards. Repealing the Seventeenth Amendment would reduce the benefits of federalism, as it would turn state legislatures into electoral colleges for U.S. Senators.

While important in its own right, the history of the Seventeenth Amendment can also teach us a great deal about how federalism functions in the real world of politics more generally. First, contrary to the claims of scholars like Larry Kramer, national political parties do not necessarily serve as “political safeguards of federalism,” but instead can make state politics turn on national issues, reducing the influence of the preferences of state citizens on state policy. Second, certain state governmental powers – from the power to gerrymander to control over issues normally associated with the federal government – reduce the democratic accountability of state officials that undergirds most normative theories of federalism. Finally, despite the Seventeenth Amendment, state elections today still largely turn on national politics. Although state issues are sometimes important, the most important factor in state legislative elections is the popularity of the President. If the benefits for state democracy sought by supporters of the Seventeenth Amendment are to be achieved, electoral reform is a more promising avenue than structural constitutional change.

From a new working paper by David Schleicher.

2 Responses to Why Did State Legislators Give Away Their Power to Pick Senators? On the Origins of the 17th Amendment

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  2. Acilius May 29, 2013 at 3:59 pm #

    Very interesting. My impression had always been that a narrow circle of party leaders within each state legislative chamber had controlled selection of US Senators in the old days, and that the effort to replace that system, both in the form of the adoption of the 17th Amendment and previously, in the states that had adopted popular elections for US Senators on their own initiative, was an effort to broaden the group of interests that could be represented in the selection process. After all, a state senator, even the majority leader of the state senate, is primarily accountable to his or her own district, and so cannot always be relied upon to respond to interests that are of minor importance in that district, even if they are very weighty elsewhere in the state. I’d mention the career of Garret A Hobart, who as speaker of the New Jersey House of Representatives from 1874-1878 and president of the New Jersey Senate from 1881-1896 effectively controlled the selection of New Jersey’s two US Senate seats for two decades. Only Hobart’s 1896 election as Vice President of the United States opened the selection process to the influence of New Jerseyans whom Hobart had no reason to heed, and then it was open only to those whom his successors heeded.