The 17th Amendment and Senate Representation

Original Intent

The American Founding Fathers intended for the U.S. Legislative Branch to operate as a bicameral legislature, meaning it would have two houses representing different constituencies. The first house, the U.S. House of Representatives, was designed to represent populism, or the energetic and emotional demands of the people, while the Senate (the second house) was designed to represent “states rights”.

Federalism is a system of government where power is split up and allocated between a federal government and regional (state/district/province) governments. The American Founding Fathers designed our nation to facilitate several levels of republican (representative) government.

To ensure that the House remained “liberal”, or responsive to the demands of the people and their desire for quick change, House representatives were to be elected for a term of two years, making them accountable to the 

While the House was intended to promote rapid change, the Senate was designed to provide more wise, experienced, and calculated perspectives and solutions. It was believed the long-term perspective of senators would “cool” down the passions of the House. To maintain a spirit of “conservatism” within the Senate, senators would be elected for a term three times longer than those of the House, six years, so they would be less hurried to “get things done” and could instead focus on the long-term implications of pending bills or current legislation. The age and residency requirements of the candidates of either house further illustrate this perspective.

This final design of the Legislative Branch was virtually uncontested and received nearly universal support by the framers of the Constitution during the Constitutional Convention debates.

A Restraint on the People

In theory, most reasonable people will agree with the need to keep government small and rights secure by solving problems as close as possible to the level at which they originate. However, in practice, “government is government” and it doesn’t matter to the average citizen which level of government solves problems, so long as problems are solved quickly for as many people as possible. But for those especially cognizant of human nature and the historical track record of abusive governments, this delineation really does matter.

It was an understanding of this lack of jealously for power and rights among the people that caused the Founding Fathers to use senators as the states’ “wall of protection” to keep the states strong and the federal government very limited. This is a two-way wall that prevents federal-initiated encroachments of states rights, as well as a barrier to prevent the people from passing power upwards in an effort to solve local problems using the power and purse of the national government.

It could be said that enumerated powers in Article I Section 8 and the discussion on states rights in Amendments IX and X are restrictions on the federal government to protect states rights, while the election of senators by state legislators was a restraint on the people to protect states’ rights.

Background History & Opposition

Through the years, three primary concerns arose among the states — 1) legislative corruption, 2) electoral deadlocks, and, ironically, 3) federalism. 

It was suspected that senatorial elections were purchased by senators buying votes among the state legislators, but several historians believe these allegations are largely unfounded or the commonality problem exaggerated. Dr. Todd Zywicki argues that “In more than a century of legislative elections of U.S. senators, only ten cases were contested for allegations of impropriety.”

In some cases, state legislatures simply couldn’t agree on who to appoint as their representatives in the Senate and the delay cost them their equal representation. Zywicki argues that these electoral deadlocks were not common and were the exception, not the norm, and were more common among new and inexperienced state legislatures in the west. As new states gained experiences, they learned to avoid the deadlock and work more effectively together. It’s obvious that the system punished states for their failure to make compromise and each learned from these experiences.

The third reason for the passing of the 17th Amendment also merits our attention as it is actually used to promote federalism. It is argued that state elections simply became “proxy” elections for the selection of senators and that state issues were essentially dismissed by the people. In the same way we vote for the U.S. President by voting for electors who have promised to vote for “our candidate” for us, it is believed that representatives could essentially campaign on who they promised to elect as senators and thereby neglect to properly address or represent the people on state issues. 

17th Amendment Text & Objectives

The 17th Amendment was ratified by Congress April 8, 1913 after the states threatened to hold a constitutional convention to bypass Congress and pass it themselves. The text reads:

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.

(“The Constitution of the United States Amendments 11–27”. National Archives and Records Administration. Retrieved January 7, 2011. emphasis added.)

The 17th Amendment was ratified by 41 of the 48 existing states and has affected two changes — 1) it gave the power to elect senators directly to the people instead of the state legislatures and 2) it gave governors the power to temporarily fill vacancies with temporary appointments until a special election can be held.

The objective was to make sure the states were never deprived of a senator by death, disability, or legislative deadlock, and to solve the aforementioned problems surrounding state interests.

Effects of the 17th Amendment

Today, senators now campaign to between hundreds of thousands and tens of millions of people using extremely expensive advertisements. Instead of being elected by a small group of state legislators who could get to know the candidates personally and who have the time and capacity to investigate the claims, reputation, and character of the candidates to ensure they truly are “good, wise, and honest”, senatorial candidate can get elected by making broad, sweeping, empty promises and claims to the masses of the people without any serious or lasting sense of accountability.

Although a report by opensecrets.org states that, on average, about 84% of “senate campaign money” comes from individuals and only about 16% from PACs, this is only half of the story. Not all money spent getting a senatorial candidate elected is donated to the campaign and a lot of money can be spent by special interest groups influencing elections without ever making donations. It’s more comprehensive to identify to the full “cost of getting elected” rather than merely how much “campaign money” was spent.

According to another report by opensecrets.org, a massive amount of money is spent by out of state special interest groups on winning senate campaigns:

“This election cycle, an average winning Senate candidate had spent $10.4 million through Oct. 19 […].

“But in the post-Citizens United era, spending by campaigns alone doesn’t tell the whole story. Factoring in outside spending (excluding outlays by party committees) nearly doubles the average cost of winning a Senate seat to $19.4 million […].

The role of super PACs and political nonprofits in Senate races has only grown since 2012. Four years ago, 22 percent of the $14.6 million total average cost of winning a Senate seat came from outside groups, and in 2014, their share was 37 percent of the $16.8 million. This time around, the share has jumped to 47 percent.”

(emphasis added.)

Perhaps there would be little reason for special interest groups and out of state PACs to spend so much money on senatorial campaigns if the people were truly more capable of resisting special interest groups than the state legislatures.

Although promoting federalism has been cited by some as a strong case for the 17th Amendment, there is little evidence that, in the long term, the influence of special interest groups decreased over the past 100 years or that citizens have become more focused on state and local issues. To the contrary, it could be argued that special interest groups have never before had so much influence over our national politics and that as Congress becomes more and more distant from the people, citizens rely on the power of the Executive Branch to keep them in check, thereby making presidential elections the foremost concern for most Americans.

This lacking sense of accountability in the Senate to either the people or the states has led both liberals and conservatives to promote strengthening the powers of the President and executive agencies to overrule or sidestep Congress. Presidents from both major political parties have been praised by their parties for using executive overreach to correct the failures of Congress. This pattern has been extended to use the federal government programs to overrule state legislatures.

Instead of restoring the structure of accountability in the Senate, term limits are being sold as the ideal way to eliminate the corruption of the Senate. This stems from the idea that regardless of who is in office and how they were elected, politics is inherently corrupt and no person could possibly remain in the same position for more than “x” number of terms without becoming corrupted.

Rather than simply assuming duration in office is the main or only factor in political corruption, a more useful question may be, “What incentive structures are or should be in place to maintain accountability to the states and an indifference to lobbying within the Senate?” We may find that the most effective way to eliminate corruption and renew accountability in the Senate is basing our method of electing senators on the founders original philosophy of a truly bicameral legislature.