The 17th Amendment as a Case Study in Structural Reform

In November of this year all eyes will be on contentious Senate races as Americans head out to the polls to decide who will represent them. But senators were not always selected by popular election. For half of the US’s history, senators got their seats by winning elections not at the ballot box, but in the state house ^[1]. Less exciting and morally weighty than the women’s suffrage or civil rights movements, the change to popularly elected senators via the 17th Amendment is often overlooked among the democratizing movements of the 20th century. The story of the 17th is about tinkering with the finer details of government to make a more equitable system, and in the process unintentionally kneecapping the safeguards that that system was intended to guarantee. The Amendment brought about many small, mostly positive changes ^[2]. Yet, it undermined the design of the Senate, making senators and the officials they were expected to check accountable to the same electorate. As we look forward to how we might improve checks and balances in the wake of the tyrannical Trump regime, we can learn a lot about how reforms ripple outward by observing what took place between the Senate, the People, and the rest of the government in the wake of the sweeping electoral reforms of the early 20th century.

The Founding Fathers’ view of the Senate

In order to understand how the 17th Amendment changed the relationship of the Senate with the rest of the federal government, we need to start with understanding how the Founding Fathers intended it to function. The Senate was born in large part due to the political circumstances of the time. It was necessary in order to get less populous states, at a disadvantage in the House, to sign on to the Constitution. Equal representation for all states in a legislative body with the ability to prevent the House from moving forward with legislation guaranteed smaller states protection from a federal government which might otherwise be controlled by a small coalition of large states ^[3].

When the Senate as a counterbalance to the House came into consideration, the framers realized that it could provide additional benefits. Chief among them was the idea that the upper chamber could be a more stable body than the lower. They achieved this by having senators sit for a six year term, instead of two, and by staggering the election of senators into three classes, each with their election offset by two years from the previous class. This would produce a long term average of political views so that no single wave of popular sentiment could drastically change the character of the US political landscape ^[3][4].

The Senate’s primary checks were intended to be towards the House. The need for a bill to pass both chambers was intended to prevent bad legislation from becoming law ^[3]. The Founders expected that most often the Senate, which they imagined to be a more stable and educated body, would be the chamber withholding consent. This stability would prevent the law from swinging wildly back and forth if the House changed hands after every election ^[3]. They also expected that by breaking up the legislature they could prevent the rise of an authoritarian Congress, since both bodies would need to be simultaneously corrupted ^[3].

The Senate was also designed to check the Executive. The most prominent check was the power to try impeachments, but the Senate also played a role in appointments and treaties for which the President needs consent. The longer terms again are an important factor here, with stability needed for foreign powers to trust that the treaties they enter into will be abided by ^{[3] [5]}.

In all these functions, the framers believed an indirectly elected body would be preferable to one elected by popular vote for two major reasons. First, they incorrectly assumed that state legislatures would elect more educated members. Second, they wanted to reinforce the stability achieved with longer terms by abstracting senator’s elections away from the momentary passions that might be found in the general populace. Less swayed by short term public opinion, they could be more cautious legislators, more deliberate in their consideration of treaties, and fairer jurors in impeachments^[3][5][6].

Why the 17th Amendment?

If the Senate functioned under indirect election for its first 124 years, what prompted the change to election by popular vote at the turn of the 20th century? The idea for a directly elected Senate had been discussed in the fringes of American politics since before the Civil War, but rapidly became a bi-partisian effort because of the growing perception that Senate seats were being bought and sold within inept state legislatures and were not accountable to the People ^[1].

When the Amendment was ratified in 1913, its supporters had a few goals. First, to end Senate election deadlocks. Prior to the Amendment, if joint sessions of the state legislature could not reach a majority for a particular candidate, the seat would be left vacant until a majority was achieved. From 1891 to 1906 this happened at least 14 times, sometimes for one third of the entire term ^[1]. Second, they hoped the switch to popular vote would eliminate corruption in the Senate. During the Gilded Age of the late 19th century, Senate elections sometimes involved smuggling bags of cash to the state legislators in exchange for their vote. The open corruption and lack of direct accountability to the voters created the perception that senators served only the interests of the wealthy and politically elite. With the ratification of the Seventeenth, it was expected that the Senate would become responsive to the needs of the voters^[1]. 

What changed?

So, was the 17th successful in radically transforming the Senate? Schiller and Stewart in their book, "Electing the Senate" set out to answer that question. They pulled together state roll call votes for nearly every Senate election from 1871 to 1913 and contextualized results with contemporary newspaper accounts. With this information they painted a picture of how indirect election functioned and compared it with direct election ^[1].

They found relatively minor variations in candidate emergence. Like today, candidates were most often existing political elites with a history in government. Sometimes, outsiders used their wealth to make a play for a seat. This was more common in newer states that did not yet have strong political parties^[7]. The winner was most often the party nominee, which is still true today. However, at that time the nominee was decided by caucuses, whereas today primary elections are largely responsible for nomination. The caucus system of the past allowed state party insiders to control which candidates would be successful. That level of influence is greatly diminished with open primaries ^[8]. 

The 17th was successful in ending deadlocks, but not because of the change in selection venue from legislatures to the people at large. Along with the change to direct election, the criteria to win shifted from majority to plurality. Elections decided by plurality have their own issues, but in a first-past-the-post system, deadlocks are rare because they require a tie. Had state legislatures elected senators by plurality, there wouldn’t have been a deadlock problem to begin with.

It is true that today Senate elections are rarely filled with blatant bribery as they once were. No doubt shifting the electorate from a small number of known individuals to large numbers in the general populace played a role. However, Schiller and Stewart give us a few important caveats to consider. They found that while the rampant bribery of the past greatly affected patronage, and could sometimes influence business regulations, it had its own limitations. It did not seem to corrupt the legislation process as much as it might have. Law-making still catered to the People, in part because party loyalty was often stronger than the corrupting influence of money and in part because the ambitions of senators to go on to other offices required courting the general electorate. Additionally, Schiller and Stewart note that reforms to campaign finance laws and anti-bribery laws contributed greatly to the decline in corruption in the Senate. Finally, moneyed interests have by no means abdicated their role in electing senators. Huge sums continue to be spent on advertisements, campaign donations, and online propaganda. Even taking this influence into account, today’s regulated spending is vastly preferable to the blatant corruption of the past^[2].

The responsiveness of the Senate to the popular will does not seem to have changed, but the Senate is still perceived as highly unresponsive to the needs of the People. Both then and now party loyalty seems to be the major reason. This loyalty prevents senators from reaching across the aisle and holding back legislation from easily passing the Senate^[2]. Even if the Amendment had made for a more responsive body, it is not clear that this would have been a positive change. The Senate was never intended to be highly responsive to the public will, but rather to prevent the nation from experiencing rapid legislative changes. 

While the 17th Amendment seems to have only resulted in relatively mild changes to Senate elections, it has had an unintentional and highly beneficial effect. With the Supreme Court opening the door for increasingly rampant gerrymandering, the statewide elections of senators prevents a permanent Republican Senate. It’s not surprising given how much of an advantage Republicans stand to gain, that the idea of repealing the 17th sometimes gets floated by GOP politicians and thought leaders ^[1]. While not a serious proposal, we ought to be on guard for a temporary change in circumstances that could push for a hasty repeal.

The shared electorate problem

Even considering how important the 17th is in protecting us from single-party rule in the upper house, there is one major issue with the change to direct election that needs to be carefully considered. The Senate began to share an electorate with the House and Executive, the very bodies it was intended to check. How might the Trump impeachments have turned out if the Republican senators were not concerned with how their MAGA-aligned voters would react to a guilty verdict?

This problem is made worse by the timing of elections. Senators are elected on the same ballot as the House of Representatives and the President. What do successful candidates look like when the same voters choose all three? Winning Senate candidates tend to be closely aligned with their state’s winning Presidential candidate and, in fairly apportioned states, the majority of their representatives^[9]. Alarmingly, this trend gets worse as the population gets more polarized. In such situations, checks are even more important since polarization offers opportunities for the rise of demagogues and demagogues themselves make polarization worse^[10].

The reason Senate candidates maintain an alignment with the Executive is partly due to when elections are held. It is well known that there is a higher turnout when the President is on the ballot and during on-cycle elections. It might be argued that the Senate itself draws this higher turnout, but during the indirect election period, where we have data, state races did not draw higher turnout when there was an upcoming Senate race^[11] while elections for the House of Representatives and President still did. This suggests there is a population of voters who are concerned mainly with those offices and just vote down ballot from their preferred candidate, most notably for the Presidency. This pattern results in voters effectively casting ballots for fewer checks on their preferred candidate.

Solving the shared electorate problem

Repealing the 17th might be an interesting solution, but gerrymandering in state legislatures makes a return to indirect election non-viable and even if fixed, any reform would require time to verify it had worked as intended. Until that happens, simply moving the date of Senate elections off-cycle could help alleviate the issues created by a shared electorate. If the date of Senate elections was moved forward one year, we might expect to see off-cycle election effects. If the Senate is the only federal body on the ballot, voters who care specifically about that chamber will be more likely to make their way to the polls than those who only turn out once every four years. Additionally, the 11-month separation between when the members of the House and the President sit and when this off-cycle election would be held gives voters an opportunity to use the Senate to slow down a government that they do not approve of; similar to how the Founders intended it to function. This can be especially helpful if you have a tyrannical Executive who moves rapidly, since it can begin to minimize damage after the first year, rather than after two.

The major drawback of this solution is that while the date of the election can be changed by statute, actually changing the terms requires an amendment. Pushing for an amendment is necessary to avoid a long lame-duck period between a changed date of election and the new senators being sworn in. The new terms would also gain the benefit of an earlier assessment of the government’s performance.

Conclusion

The adoption of popular election for senators eased some problems, but it failed to deliver the sweeping changes its proponents hoped for. Its biggest achievement was strengthening the Senate against the corrosive effects of gerrymandering, but in exchange weakened its ability to check both the House and, more importantly, the Executive. Neither of these effects were brought into discussion by the Amendment’s supporters and to bring any repair requires the high-bar of passing another amendment. The lesson is that reforms to the machinery of republican government must be done carefully, or else the largest effects, good and bad, might not be what was intended. This does not mean we should not make an effort to institute reforms! Our circumstances today obligate us to do so. Rather, we ought to begin thinking now about what these changes look like, and how they might play out in worst case scenarios, so that when implemented only their best forms are advanced.