DIBACCO: The 17th Amendment turns 100

A remedy to political corruption has had limited success

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This month is the 100-year anniversary of the 17th Amendment that provided for the direct election of U. S. senators, superseding provisions of the Constitution mandating election by state legislatures. It also gave legislatures the authority to empower their governors, in the event of vacancies, to make temporary appointments.

One of four constitutional amendments ratified from 1913 to 1920 legalizing an income tax, Prohibition and women’s suffrage, the measure was swiftly ratified — in 11 months. Indeed, in most states, it was a no-brainer approved unanimously by state legislatures, no matter that their powers were clipped by the amendment.

Not surprisingly, there had been earlier attempts to refine legislative election of senators. In 1866, Congress passed a law requiring legislators to elect senators by a majority vote, not by a plurality. In the early 20th century, 29 states established senatorial primaries, putting pressure on legislatures to choose the winners as senators.

No doubt, No. 17 appeared to be in the best interests of an expanding American democracy, giving the people direct power of election over both houses of Congress. For the depiction of corruption seemed so blatant in news reports, namely, that Senate seats were being bought and sold in state capitals. Cartoons often pictured senators as fat cats, tied by a money chain to specific corporations or trusts. Also popularized was the fact that legislators sometimes deadlocked on choosing a candidate. In Delaware, a Senate seat was left vacant from 1899 to 1903 because of internal legislative squabbling.

Only three states — Utah, Delaware and Rhode Island — formally turned down the amendment. Six others — Florida, Georgia, Kentucky, Mississippi, South Carolina and Virginia — took no action.

To be sure, there were concerns about direct election. For one reason, there was almost no support for the idea at the Constitutional Convention, with only one notable — James Wilson of Pennsylvania — favoring it. James Madison in Federalist Paper No. 45 was unequivocal in opposition. “The Senate,” he wrote, “will be elected absolutely and exclusively by the State legislatures.” Madison’s Virginia colleague, George Mason, was also opposed: “Let the state legislatures appoint the Senate,” he stressed at the Constitutional Convention. Nor was there much support in subsequent history for popular election, with disgraced President Andrew Johnson the most famous supporter.

Second, because the Senate, unlike the House, was unique in nonlegislative responsibilities regarding approving presidential appointees and ratifying treaties, the view of keeping the body removed from popular pressure had weight.

Third, some critics believed that No. 17 would be the first step in undermining state power in favor of federal authority because the legislatures expected senators to represent their identifiable interests rather than an amorphous body of public opinion illustrated in direct elections. Again, James Madison on the issue: ” the State legislatures will jealously and closely watch the operations of this [federal] Government, and be able to resist with more effect every assumption of power, than any power on earth can do, and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty.”

The problem with No. 17, however, was that advocates hadn’t anticipated the many ways in which political corruption can occur. To wit, the most devoted supporters were party bosses and special interests, who reasoned that it was much easier to get their way with popularly elected senators by lobbying them directly rather than going through numerous members of state legislatures.

Perhaps the biggest shortcoming was the section regarding legislatures empowering governors to make interim appointments. It led to a confusing arrangement across the nation. Thirty-six states gave the governor the right to do this, with the appointee serving until the next general election. Ten gave the governor the same right but called for a special election. The remaining four denied the governor any interim appointment authority and called for a special election. To confuse the issue even more, within each of these three categories, some states also imposed additional requirements.

Of course, the framers of No. 17 didn’t anticipate that governors could have dirty hands. When in 2009 Sen. Barack Obama left his Illinois Senate seat upon his election to the White House, controversy abounded over the temporary Senate appointment by Illinois Gov. Rod Blagojevich. Even before Blagojevich was convicted on corruption charges in the matter, politicians rushed to amend No. 17. Democratic Sen. Russ Feingold of Wisconsin and Republican Rep. David Dreier of California proposed an amendment that would require vacancies in the Senate seats to be filled by special elections, entirely omitting governors from the process. After a century, the 17th Amendment was really showing its age.

Thomas V. DiBacco is professor emeritus at American University.

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