What would the Senate look like without the 17th Amendment?

National Constitution Center

It’s the 100th anniversary of the 17th Amendment, leading us to consider what today’s U.S. Senate would look like if its members weren’t directly elected by voters.

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Source: Wikimedia Commons.

The answer is simple: It would be probably be controlled by the Republicans, with a chance that it could be a filibuster-proof majority.

Related Link: Happy Birthday, 17th Amendment!

Given that the House is already controlled by the GOP, laws enacted by the Democrats in the past two years may not have fared well with a Republican-controlled Congress.

Prior to 1913, when the 17th Amendment was ratified, state legislatures elected two U.S. senators to represent them in Congress.

Members in each state House and each state Senate, in most cases, would meet separately to pick a candidate as its representative in the U.S. Senate.

If the two caucuses picked the same person, the race was over and that person was sent to the U.S. Senate. (The elections were staggered so only one senator was chosen every two or four years.) But if different candidates were preferred for that one U.S. Senate seat, the legislatures met in a combined session until they could agree on a selection.

This indirect selection method had its flaws. Deadlocks could prevent a state from sending someone to Congress.

In a research paper, Wendy Schiller from Brown University and Charles Stewart III from MIT looked extensively at data between 1871 and 1913 about indirect U.S. Senate elections.

About 75 percent of the elections were handled quickly within state legislatures, and in 69 percent of cases, a majority party was able to elect the same candidate in each chamber. Other races were resolved in joint assemblies.

Only 2 percent of the races ended in a deadlock–but these deadlocks were devastating, because they prevented patronage jobs from being appointed.

Jumping forward 100 years, Constitution Daily looked at the current composition of state legislatures to see how the U.S. Senate would look if it reflected how Democrats and Republicans currently control state Houses and Senates.

If we consider any state chamber that has a margin between the two parties of less than 10 percent as “undecided,” the breakdown would be 51 seats for the Republicans, 36 for the Democrats, and 15 seats undecided (where chambers have a smaller difference between the parties).

Along strict party lines, the GOP would have 58 seats in the U.S. Senate, with 41 seats for the Democrats, and one seat deadlocked. That would put the Republicans within two votes of a filibuster-proof 60-vote majority.

Currently, the Democrats control 53 seats in the U.S. Senate; plus, two independent senators caucus with the Democrats.

In 2009, the Senate would have looked different under a Constitution without the 17th Amendment. Before the 2010 midterm elections shifted power at a state level to the Republicans, the Democrats controlled 27 state legislatures, with the GOP in control of 14 states and 8 states with split legislatures.

The Democrats lost control of nine state legislatures in those midterm elections, and the Republicans now control 27 state legislatures.

The amendment ratified 100 years ago still has its critics, particularly among states’ rights advocates. Just last month, Georgia state legislators proposed a resolution asking Congress to repeal the 17th Amendment.

Repeal proponents have pointed to several benefits. Foremost, it gives state governments a direct voice in the federal government and budgeting process, something proponents believe reflect the desire of the Founding Fathers for states to have a dynamic role in Washington.

But other factors would make repeal problematic. Only one amendment, the 18th, has ever been repealed, when the 21st Amendment ended Prohibition.

The anti-17th Amendment forces would need 38 states to ratify a repeal amendment, which is no small task, since two-thirds of Congress or the states would need to agree to offer one up for ratification votes.

And there is the debate over redistricting–specifically, how states each determine the districts that send representatives to the state capital. For example, Pennsylvania currently has 50 U.S. Senate districts and 203 U.S. House districts. Redrawing those districts would be as critical to a U.S. Senate election as redistricting is at a federal level for U.S. House of Representative elections.

Another factor would be campaign spending. Millions of dollars of outside money poured into 2012 U.S. Senate elections. According to data from the Campaign Finance Institute, $315 million was spent on U.S. Senate campaigns in 2012. The U.S. Senate race in Virginia has $51 million in spending by itself. Under the pre-1913 voting rules, the candidates for that seat wouldn’t even be in play until after the November general election was over, so there would be no opportunity for special interests to invest in campaigns.

On top of these challenges, perhaps the most significant factor preventing repeal would be what helped the amendment pass in the first place–the idea that the direct election of senators, giving power to the people rather than the states, is the most democratic approach.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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