The 17th Amendment gets little attention these days. In fact, most Americans aren’t even familiar with its content. Unlike the First and Second Amendments, the 17th is rarely if ever mentioned on the nightly news or in the morning newspaper. Journalists will not be found breathlessly pursuing Constitutional scholars to get their take on the 17th Amendment. In fact, the world has heard little about this particular Amendment since it was adopted. This is unfortunate because the 17th Amendment has had a significant effect on how our nation is governed. In fact, the 17th Amendment has been a major factor in the growth of the federal government in both size and power and in the corresponding neutering of state governments.
The critical phrases in the 17th Amendment read as follows:
“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…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 and until the people fill the vacancies by election as the legislature may direct.”
The controversial aspects of this amendment can be found in the words “…elected by the people…” and the opportunity for state governors to fill vacancies temporarily.
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The framers of the Constitution originally established a process wherein Senators were elected by the legislatures of the respective states and vacancies could be filled by the governor only until the next session of the state legislature, at which time the legislature would select a new Senator (Article 1, Section 3). But the original process was changed in 1913 with adoption of the 17th Amendment. Almost as soon as Secretary of State William Jennings Bryan—a strong and persistent advocate of the 17th Amendment—declared the amendment adopted, federal power began to grow in ways that violate the original intent of the Constitution’s framers. Further, as one might expect, allowing a governor to fill a Senate vacancy is rarely if ever popular with the opposing political party. At the same time, state governments began to lose not just their influence in Washington, D.C. but their relevance.
The 17th Amendment was one of those things that sounded good in theory but failed to pass the tests of reality and practicality. The Amendment appealed to some because they felt it would put an end to corruption in the state legislatures where, according to 17th Amendment advocates, Senate seats were bought and sold by the rich and powerful. However, all the 17th Amendment really did was transfer the potential for corruption from state legislatures—where it was at least dispersed—to the United States Senate—where it is concentrated in just 100 seats—making it easier for special interest groups to wield negative influence.
The 17th Amendment was touted as a way to give the little man more of a voice in government. Advocates also pointed to the problem of legislative deadlocks in which states could not seat their Senators because they could not agree on who they should be. Both of these were legitimate concerns—especially in the late 1800s and early 1900s. Opponents of the 17th Amendment pointed out that direct election of Congressman gave the little man a voice in government and that deadlocks were the exception not the rule. However, the argument that won the day for advocates of the 17th Amendment was populism (Let’s make Senators more accountable to the people instead of to special interest groups).
Unfortunately, in practice the 17th Amendment has made Senators less accountable to the people than they were when chosen by state legislatures. In essence, allowing the Senators to be elected directly by the people has empowered special interest groups by allowing them to focus their influence and money on a much smaller group: 100 Senators (really just 51). When Senators were selected by the respective state legislatures, special interest groups were forced to attempt to influence thousands of state legislators in order to influence Senators. With passage of the 17th Amendment, they are now able to go directly to the individual Senators with their pressure and incentives.
Some reform-minded opponents of the 17th Amendment such as the Tea Party want to scrap it altogether while others want to revise it. With the federal government growing faster than any other entity in America—public or private—it is time to do one or the other. Scrap it or revise it—either approach is preferable to leaving it in place in its current form. But reforming the 17th Amendment will be a struggle because Senators and special interest groups are united or close to being so in protecting the process they both benefit from. It is only the American people who are being hurt.