Wendy J. Schiller
Charles Stewart III
The prevailing wisdom among opponents of the 17th Amendment, who range from Senator Mike Lee (R-UT) to Senator Rand Paul (R-KY) to Senator Ben Sasse (R-NE) to legal scholars and historians, is that the adoption of direct elections of U.S. Senators just simply ruined the Senate. Most recently, Sasse argued in the Wall Street Journal that this change in the election to the U.S. Senate liberated Senators to represent constituents in their own parties at the expense of states as a whole. To him, if we could only put the election of Senators back into the hands of state legislators, polarization would disappear and responsible representation would take its place.
Based on research conducted for our study of U.S. Senate elections before the 17th Amendment, Senator Sasse is just plain wrong about going backwards to reduce polarization in the Senate. Senators were the product of polarized and highly conflictual elections prior to the 17th Amendment, which gave them more incentive to vote their party’s line once they arrived to the Senate.
Of course, there were some key differences in how state legislatures voted for senators before the 17th Amendment. In 1866, the U.S. Congress passed “An Act to regulate the Times and Manner for holding Elections for Senators in Congress” (14 Stat 243), that set up a standardized procedure in state legislatures to elect U.S. senators. First, each chamber was to meet separately at noon on the second Tuesday after the state legislature had organized, to vote separately for senator. On the following day at noon, the two chambers would meet in joint assembly to count the votes. If a majority of members of each chamber favored the same candidate, he would be declared elected. If no candidate secured a majority of the joint assembly, House and Senate members were required to meet together in joint session and ballot at least once a day until a senator was chosen or their legislative session adjourned sine die.
In conducting our research, we constructed an original database of all state legislature elections for U.S. Senate from 1870 to 1913. We found that indirect Senate elections were plagued by political manipulation and bribery; nearly 30% of all of these elections involved joint session voting, ranging from one joint session vote to 209 joint session votes. Sometimes they could not resolve the election at all before they adjourned for the year, resulting in a vacancy for that state in the U.S. Senate. (Delaware went an entire Congress without representation in the Senate because of this.)
Businesses and wealthy individuals engaged in frequent bribery of state legislators, from paying them to run for the state legislature to voting for specific Senate candidates once balloting began. They even went so far as to buy newspapers to actively promote their partisan agendas (which should sound familiar). As one observer of indirect Senate elections wrote, “Buying influence with key newspaper editors…was an effective use of money, in addition to liberal contributions to the campaigns of other party members running on the same party ticket. All of it amounted to a traditional use of “the sack” in the election process.” [1]
This 1889 cartoon by Joseph Keppler depicts a Senate dominated by big business conglomerates that had great influence in the indirect selection of 19th-century senators.
The most stunning example of the use of money to buy state legislators’ votes to win a Senate seat occurred in Montana in 1899 when two wealthy mine owners, William Clark and W.G. Conrad, ran for Senate. The corruption was so bad that the legislature voted at Noon and held hearings on the bribery charges in the early afternoon. In one of those hearings, a state legislator testified that he had personally distributed $200,000 [$6.1 million in 2018 dollars] to state legislators on behalf of a wealthy mine owner, William Clark, who was vying for the seat. And that was only the money that was funneled through him; Clarke’s opponent, W.G. Conrad was also a wealthy mine owner who also spent large sums to win the seat. In inflation-adjusted terms, the $1 million [$30.3 million in 2018 dollars] spent between the two of them was greater than what has been raised, as of June, by the two candidates vying for Senate in Montana this year.
Because of high turnover in state legislatures, few state legislators who chose a Senator in one election were still around six years later to hold the Senator accountable. However, leaders in the state party organizations knew whether the Senator supported their party’s goals or not. Whether they came from one faction or another within their state party, there was no question that they had to show loyalty to the party in order to return six years later to run for reelection. And return they did. Under indirect elections, in the years 1871-1913, 61% percent of elections involved incumbents seeking reelection, and 39% were open seat; 70% of incumbents were reelected. By contrast, in 2018, 84% of Senate incumbents won reelection. That may be evidence of a less entrenched incumbency Senate than we have today, but not by much.
The sad but true fact of American life is that polarization is in the fabric of our politics. We found that in 98% of indirect elections held from 1871-1913, the winner was from the party that controlled the majority in the state legislature. In comparison, 2018 exit polls in 18 Senate elections revealed that 94% of Democrats voted party line and 89% of Republicans voted party line. In that way, partisanship among voters and party leaders of the 19th century looks a lot like voters in the 21st century – each exerts a strong pull on incumbent Senators to toe the party line.
Finally, a reversion back to Senate elections in state legislatures could also limit the opportunities for women and representative of color to be win election to the Senate. Today, women comprise 24% of state legislators and with the exception of Nevada, do not constitute a majority; people of color comprise 18% of state legislators and do not constitute a majority either. This underrepresentation may make it harder to elect a diverse Senate that truly represented the America of 2020 if we reverted to indirect elections. Of all the reasons we have stated here not to repeal the 17th Amendment, this may very well be the most important of all.
[1] William D. Rowley. 1996. Reclaiming the Arid West: The Career of Frances G. Newlands. Bloomington, IN: Indiana University Press. Pp. 68-69.