It was with no small sense of vindication that Secretary of State William
Jennings Bryan signed the proclamation of 31 May 1913, declaring the Seventeenth
Amendment duly ratified and incorporated into the fundamental laws of the
United States. More than twenty years earlier as a Nebraska congressman,
"The Great Commoner" had joined the struggle to free the Senate from the
control of corrupt state legislatures, and despite three failed campaigns
for the presidency, he never wavered in his determination to make the Senate
a popularly elected body.1
Now, after the most protracted political battle in that usually bloodless
revolution historians refer to as the Progressive Era, Secretary Bryan
put his seal upon the reform that, in the expectations of those who had
labored for it, would end the dominance of party "bosses" and the state
"machines," stamp out the undue influence of special interests in the Senate,
make it more responsive to the will of the people, and of course, eliminate,
or greatly reduce, the execrable practice of spending large sums of money
to get elected.
As we shall see, even while the amendment was still being considered
by the American public, there were ample reasons to doubt its effectiveness
and to question the credulity, if not the integrity, of those who proposed
it. But more than eight decades after the amendment, the current condition
of Senate elections and Senate politics makes the sanguine predictions
of 1913 look wholly na‹ve. Progressive Era reformers scandalized by the
rare campaign expenditure of a hundred thousand dollars might be shocked
senseless to learn that by the 1990s the average cost of a Senate seat
would be well over five million dollars, that a candidate would not even
approach the threshold of scandal until he had spent fifteen or twenty
million dollars.2 If
there was once cause for concern in the muckraking stories of industrial
tycoons and railroad barons buying Senate influence through contributions
to the state legislators, then the largess of lobbyists and activists that
is today handed openly and directly to Senate candidates (overwhelmingly
in favor of incumbents) should be a cause for outright alarm. And if in
1913 the old-time brokers of Senate elections were cleared from their smoke-filled
rooms, the current regime of media consultants, professional pollsters,
mass-market specialists, and "constituent-minded" software is hardly the
victory over political cynicism that Bryan and the Progressives had envisioned.3
In retrospect, the amendment failed to accomplish what was expected
of it, and in most cases failed dismally. Exorbitant expenditures, alliances
with well-financed lobby groups, and electioneering sleights-of-hand have
continued to characterize Senate campaigns long after the constitutional
nostrum was implemented. In fact, such tendencies have grown increasingly
problematic. Insofar as the Senate also has participated in lavishing vast
sums on federal projects of dubious value to the general welfare, and producing
encyclopedic volumes of legislation that never will be read or understood
by the great mass of Americans, it can hardly be the case that popular
elections have strengthened the upper chamber's resistance to the advances
of special interests. Ironically, those elections have not even succeeded
in improving the Senate's popularity, which, according to one senior member,
currently places a senator at about "the level of a used-car salesman."
4
Of course, the same criticisms have been directed with increasing intensity
against the House of Representatives, which, unlike the Senate, has never
undergone a fundamental alteration in the manner of its elections. Perhaps,
then, the amendment is not the sole or even the primary cause of the Senate's
decline. Or perhaps its consequences have actually extended to both houses
of Congress. What can be asserted confidently is that the amendment did
not redress the grievances of Progressive reformers.
Viewing such a miscarriage against the backdrop of present political
discontent, one might conclude that the chief shortcoming of Progressivism
was that it did not go far enough in establishing what was often referred
to in the early twentieth century as "The People's Rule." Whatever gains
were made by the direct election of senators and similar reforms of the
era, such as local and state recall elections, party primaries, and direct
legislation in the form of statewide initiatives and referenda, they have
not quieted the protests against the average American's perceived loss
of control over the political system. Indeed, judging from the rhetoric
of the talk shows and campaigning politicians, the prevailing sentiment
has changed very little since the Seventeenth Amendment. The contention
that power must be dislodged from "the interests" and restored to "the
people" is asserted as strongly today as it was in the time of Robert La
Follette and Woodrow Wilson. Reformers of the twentieth century--whether
the Progressives and their New Deal-Great Society successors seeking to
rein in the might of sinister economic forces, or the contemporary champions
of free markets and deregulation taking up the fight against big government
and oppressive bureaucracy--typically have been populists at heart, inspired
to play the role of Leading The People in revolt against the system.
The economic skirmishes between the regulatory liberalism of the past
and the laissez-faire liberalism resuscitated from an earlier past belie
a fundamental continuity of American political reform. Whether the menace
of the hour is perceived to be socialism or capitalism, blame is not affixed
merely to the errors and excesses of policy, but ultimately extends to
the very political order that has permitted or promoted them. The difficulties,
complications, and setbacks of governing a diverse and populous continent
typically have been ascribed to representative institutions that thwart
the will of the people. Amelioration is therefore seen as a simple matter
of circumscribing the authority of representatives and of establishing
means of expressing the popular desires more clearly and enacting them
more promptly. In this sense, today's neoconservative advocate of constitutionally
mandated term limits and balanced budgets is, with regard to the animating
principle of reform, the spiritual heir of the Progressive who prevailed
in transferring the choice of senators from state legislatures to the people.
The predilection for revoking representative authority and replacing
it with more direct means of popular expression might not seem obvious
from a cursory glance at the Constitution, which has seen relatively few
amendments in the two centuries of its existence. But behind the document's
seemingly tranquil history, hundreds of proposals have been made to create
more plebiscitary law-making methods, restrict the deliberations of House
and Senate, and guarantee rule according to the momentary wishes of the
majority in the fundamental law. The Constitution has withstood most such
assaults only because of the founders' sagacity in making change difficult,
although this feature, too, has often come under the attack of ambitiouspopulists.5
State constitutions, on the other hand, have proven not nearly as resistant.
Subject to alterations at the hands of anonymous pluralities of voters
in statewide referenda, expanding by process of accretion into detailed
delineations of rules and regulations that make them practically indistinguishable
from ordinary codes of statutes, the constitutions of the states more accurately
depict America's long-standing distrust of representative bodies.
At the federal level, the Seventeenth Amendment is unique for having
been the first and, to date, the only successful incursion of populist
reformers against the representative structure instituted by the founding
fathers. Of course, encroachments on the established processes have continued
in other, more subtle, ways, such as in the increasing reliance on popular-opinion
polls in determining the course of national policy, or the tremendous power
of the mass media to influence the deliberations, and even the agenda,
of Congress. While such changes have come about by circumstance and usage
rather than design, they undoubtedly have debilitated the capacity of elected
delegates to be representative in the sense that Edmund Burke used the
term in his famous admonition to the Electors of Bristol, that is, in refusing
to bow to unwarranted pressures from individual citizens and interest groups
who are outside the constituted processes. But the constitutional change
that divested state legislators of the power to represent their constituents
in the election of U.S. senators, and that invested that power in mass
statewide electorates, stands alone for having been deliberate. In fact,
it is the only plebiscitarian subversion of the federal system to have
been accomplished through the formal representative process itself.
In direct contradiction to the reformers' contention that the Senate,
elected by the legislatures, was too unresponsive and too corrupted and
that it would never yield to the demands of the people until placed directly
under their control, two-thirds of the Senate and three-fourths of the
legislatures concurred in a constitutional revision alleged to be against
their political self-interest. The very adoption of the amendment would
seem to call into question its necessity. Furthermore, considering not
only that the Senate itself endorsed the amendment but that all of the
legislatively elected incumbents renominated for Senate seats went on to
win in the popular elections of 1914, it is difficult to determine precisely
which of the "special interests" had been defeated by its ratification.6
Add to these considerations the utter failure to remove the influence of
money and the fact that the much-maligned electioneering machines appear
not so much to have been overthrown as to have adapted their tactics, and
it is not merely the necessity of the amendment that is called into question,
but the validity of the assumptions on which it was advanced.
Again, the Seventeenth Amendment is singularly momentous for having
carried to the federal level the ongoing struggle for direct democracy.
Having undergone the prescribed process of ratification, and having been
the subject of editorial controversy for an entire generation, it offers
ample opportunities for examining that popular distrust of representative
government that has chaffed against the institutions of the founders since
the beginning of the republic.
Naturally, amendment proponents tended to view their proposal as an
improvement upon the original structure rather than an important step in
the dismantling of it. Had the founders lived through the industrial revolution,
so the argument goes, and seen the huge concentrations of business, capital,
and labor that diminished the significance of the individual citizen and
rendered him seemingly voiceless in the decisions that affected his daily
existence, surely they would have supported giving him more direct control
over the political processes. Had they but witnessed the dark alliance
between large corporations and the legislative machines in the election
of senators, they no doubt would have opened the processes to the light
of popular elections. And could the wonders of the modern methods of communication
have been made known to them, they would certainly have favored removing
representative intermediaries like state legislatures wherever the direct
will of the people could be enacted. As Congressman Bryan put it, "What
with our daily newspapers and our telegraph facilities we need not delegate
our powers." In short, the advocates of direct Senate elections generally
believed that whatever rationale the founders might have had for elections
by state legislatures, "today, under present conditions, those statesmen
and patriots would undoubtedly be of another opinion."
7
Yet all of these arguments ignore or at least slight the real motives
for placing the Senate beyond the direct popular reach in the first place.
No one in the Philadelphia convention of 1787 assumed that the federal
framework they created would suffice for all time without alteration, but
their idea of a good constitution was one based on fundamental principles
of government that, if properly derived and applied, transcended the shifting
exigencies of everyday politics. It would thus have been incumbent upon
reformers to prove in what way the economic and social changes of the post-Civil
War era had rendered obsolescent the original representative arrangement,
to trace the manner by which that arrangement had given rise to the corrupting
influence of money and machine politics, and, in what surely would have
been their biggest burden of proof, to show why the founders would have
considered a more populist, more "responsive" government--even if technologically
feasible--a desirable alternative to the structure they created.
The fact most Progressives failed to acknowledge or to come to terms
with was that the underlying premise of direct Senate elections, and of
the direct democracy movement in general, was the complete antithesis of
the founding idea of government. Having in the short span of eleven years
experienced the violent swing of the political pendulum from abusive monarchy
to abusive majoritarianism, and in the process discovered that life, liberty,
and property were no more secure under the latter than they had been under
the former, the Constitution's framers saw the will of the people as a
force to be restrained and refined, not unleashed and encouraged.8
Unseduced by the egalitarian speculations of Jean-Jacques Rousseau and
Thomas Paine, they knew first hand that the simplicity of one man, one
vote did not of itself engender a greater harmony of interests. "Theoretic
politicians," James Madison observed, "have erroneously supposed that by
reducing mankind to a perfect equality in their political rights, they
would, at the same time, be perfectly equalized and assimilated in their
possessions, their opinions, and their passions." On the contrary, liberty
brought about a diversity of interests, which in turn brought conflict.
Hence, faction, rather than originating in the inequalities of the social
order, was "sewn in the nature of man" and could not be removed. The putative
existence of a wide chasm separating "the interests," on the one side,
and "the people," on the other--which provided the rationale for unceasing
agitation by subsequent generations of reformers--turns out to have been
a fiction of the Enlightenment.9
A system of government based solely on equality of political expression,
therefore, had the paradoxical result of creating another form of inequality,
because it gave the majority an absolute power over the rights of the minority.
"Who," asked Madison, "would rely on a fair decision from three individuals
if two had an interest opposed to the third?" Whether it was three or three
hundred million, impartiality would not be increased, "nor any further
security against injustice be obtained, than what may result from the difficulty
of uniting the wills of a greater number."
10
After more than twenty-one hundred years of Western political evolution,
the classical solution was to balance the rights and powers of the many
against those of the few and the one, much as the British government struck
a balance among Commons, Lords and Crown.11
Any act of government that could get the support of all three achieved
a reasonable approximation of political justice. Much as the stability
of that system was admired by the delegates in Philadelphia, however, the
creation of hereditary elements was neither practicable nor politic in
the former American colonies, and was never seriously considered. But without
such checks, the stronger central authority that the founders thought necessary
for the effective governance of a growing nation would only increase the
potential tyranny of a numerically superior faction. The dilemma, as pronounced
in The Federalist, was "to secure the public good and private rights against
the dangers of such a faction, and at the same time to preserve the spirit
and the form of popular government."
12
The result of the framers' deliberations was a tripartite division of
political power among representatives chosen directly by the people, senators
chosen by state legislatures, and a chief executive chosen by a temporary
college of electors selected specifically for that purpose, either directly
by the legislatures or in the manner they prescribed. Thus, while all political
power ultimately derived from the people, each branch answered in an immediate
way to an essentially different constituency from that of the others, and
was thus considered less liable to fall victim to the same errors, the
same impulses, or the same corrupting influences.13
By giving each department a "will of its own" with "as little agency as
possible in the appointment of the members of the others," the Constitution
fragmented the power of the majority, deliberately supplying "opposite
and rival interests" as a more reliable guarantee of individual freedom
and minority rights than could reasonably be expected from merely relying
on the good will of the superior number of citizens.
Assuming that the arbitrary use of power was less likely to occur when
the will of the sovereign was subject to delay before committing the government
to action, the founders recognized that "the power of preventing bad laws
includes that of preventing good ones," but it was a trade they were willing
to make. According to Alexander Hamilton, anyone acquainted with the tendencies
of American politics "would consider every institution calculated to restrain
the excess of law-making, and to keep things in the same state in which
they happen to be at any given period, as more likely to do good than harm;
because it is favorable to greater stability in legislation."
14
Stability, balance, restraint--there was not a word about responsiveness.
The Senate's manner of election was intended to secure the desired stability
in a number of ways. First, it would help allay the jealousies of Anti-Federalists,
inasmuch as it continued a familiar vestige of the old Confederation. The
"sovereign" states would continue to send their ambassadors to Congress.
The founders expected senators to play a more independent and representative
role than congressional delegates under the Articles, but retaining the
previous form of election would assure suspicious localists that the states
would have a check on any consolidating tendencies of the national government.15
Second, in order to make the chamber more conducive to deliberation,
the Senate's membership would be smaller than that of the House, but this
necessitated that each member represent a larger constituency--statewide,
in fact. Even in those days of sparse population, direct elections were
ruled out as a mockery of the true principles of representation. Candidates
would have too little acquaintance with any but the largest or most vocal
interests. By the same token, the individual citizen's vote, and the knowledge
upon which it would be cast, counted for so little among the mass electorate
that it would more than likely favor the intrigues of a well-organized
few, adept at "taking advantage of the supineness, the ignorance, the hopes
and fears of the unwary and interested." Locally elected legislators, chosen
with greater competence on the part of the people, would serve as trustworthy
intermediaries to select to the Senate "those men only who have become
the most distinguished by their abilities andvirtue."
16
Here it is worth pausing to take up the Progressive assertion that the
necessity of intermediaries had passed away with the modern improvements
in communications and transportation technology. By the early twentieth
century, the area over which information could be directly transmitted,
and over which in turn the public could directly register its response,
would be virtually nationwide. Progressive democracy meant the annulment
of representative institutions wherever direct expression could be substituted.
Carried to its ultimate conclusion, this logic presaged a single, mass
assembly of the people, if and when it ever became technically feasible.
The bizarre suggestion occasionally heard about doing away with Congress
and establishing direct popular rule via the Internet, a fantasy more or
less advocated in the presidential candidacy of H. Ross Perot, is the natural
end of Progressive thinking.
Conquering the country's geographical challenges, on the other hand,
did not automatically result in a greater harmony of interests. The information
that mass communications technology could disseminate, and the popular
opinions it was to return, were as much as ever the object of partisan
struggle. In perhaps the most familiar passage of The Federalist, James
Madison argued that it was precisely the extended sphere of the republic
which minimized the possibility that "a majority of the whole will have
a common motive to invade the rights of other citizens, or if such a common
motive exists, it will be more difficult for all who feel it to discover
their own strength, and to act in unison." If, as turn of the century reformers
believed, simple popular rule was becoming scientifically possible, the
Federalist line of reasoning pointed to the necessity of preventing it.
After all, the democracy of ancient Athens, in which the entire body of
citizens could assemble and pass laws, was not the founders' ideal of government,
but rather was derided for having decreed "to the same citizens the hemlock
on one day and statues on the next."
17
The advantages of smallness lost to the extensive republic would, if anything,
have to be compensated for with stronger checks against direct democracy.
There was all the more reason to retain rather than abandon the idea of
a representative body with a secure hold on office and a sufficient degree
of distance from popular tumult.
Aside from contravening the founders' purposes by removing the representative
intermediaries between the people and the Senate, it is highly doubtful
that the people were actually given greater control over Senate elections.
Instead of selecting a trustworthy delegate from among his neighbors to
negotiate the choice of senators on his behalf, the individual voter was
now asked to rely on the second- and third-hand accounts of newspapers.
At best, his first-hand knowledge of Senate candidates was usually limited
to what he heard on the stump or in the rhetoric of debate. Because no
state consisted of a single interest, and no candidate wished to alienate
the particular audience whose attention he had momentarily been granted,
the substance of such engagements would naturally tend either toward telling
each group what the candidate thought it wanted to hear, or toward speaking
in terms so broad and patriotic as to mean all things to all people.
Moreover, the attempt to forge mass majorities out of all the divergent
interests of the state would require not only a loyal cadre of political
supporters to "get out the vote," but also funds to support the cadre and
to pay the public-relations expenses, be they for whistle-stop train rides
and barbecues, or for thirty-second spots on prime-time television. In
other words, direct elections among large constituencies all but guaranteed
the development of permanent electioneering machinery, the imperative of
fund-raising, as well as the strong likelihood of alliances between candidates
seeking what Madison Avenue calls "name recognition" and the organized
interests willing to pay to help them get it. What Publius wrote about
the dangers of large assemblies would seem to apply equally to mass constituencies.
The larger the electorate, "the fewer, and often the more secret, will
be the springs by which its motions are directed." In form, "the government
may become more democratic, but the soul that animates it will be more oligarchic."
18
In sum, the framers' reasons for instituting the legislative election
of senators, aside from the political necessity of calming the fears of
the states' rights camp, was essentially two-fold. First, it would promote
the best statesmen to office by keeping the selection process at the level
of personal acquaintance and accountability. More than any other agent
in the federal scheme, a state legislator could know the mind of his constituents,
and vice-versa. Likewise, as one of a few-score delegates assembled in
the state capital, a person could vote for senator with the competence
that only a first-hand knowledge could provide. Second, in more factious
times, the legislative appointment of the Senate would make it more difficult
for interests temporarily in the majority, or claiming to speak for the
majority, to bring their schemes to fruition, because they had to gain
the support of the representatives of the people in the House as well as
of the representatives of the states in the Senate. These reasons of the
framers simply cannot be reconciled with those of the reformers who wished
to make the Senate a directly elected body. It is not that the founders
lived in a different time, under different circumstances, and therefore
could not appreciate the Progressive arguments. Those arguments were not
new. The idea that representative government, for instance, was not a way
of refining local and particular interests, but rather a thwarting of the
pure expression of the people's will, had been cogently set forth by Rousseau
a quarter century before the gathering of 1787.19
Thomas Paine's Common Sense, a screed against the tyranny of checks and
balances in general and an exhortation to persevere against the British
system in particular, was the most widely read tract of the American Revolution.
And the demagoguery of state governments during the Confederation period
had prompted the constitutional convention in the first place. When Edmund
Randolph told his fellow delegates behind closed doors that the chief purpose
of their assembling was to check "the turbulence and follies of democracy,"
there was no dissent.20
Not every Progressive mistook his own views of constitutionalism for a
slightly updated version of the founding ideal. The historian Charles Beard
depicted the Constitution as a document of class preservation and denounced
the intricate contraption of representative checks and balances as "a foil
to democratic attack." Journalist, author and publisher William Allen White
hailed the modern drift toward democracy as a beneficially "strong move
away from the Constitution." Senator Jonathan Bourne of Oregon, an advocate
of direct elections and a devout believer in the inerrancy of the mass
electorate, stated on the Senate floor that the Constitution was unequivocally
"against the spirit of democracy," and conceded that the founders had not
entertained the idea, as did he and his Progressive colleagues, of implementing
"Rousseauism, in the application of popular sovereignty, on a national scale."
21
But individuals of such frankness and discernment were few. Most Progressives,
like most reformers in every era, including our own, remained untroubled
in their belief that they were merely picking up where the founding fathers
had left off, doing their part in the millennial struggle to defeat "the
interests" and enthrone the people.
On closer inspection, then, the movement for a more responsive Senate
appears contrary to the framers' original intent, and the social and economic
transformations of industrialized, urbanized America seem more the pretexts
than the legitimate justifications for amending the Constitution. What
remains to be addressed are the charges of cynical electioneering and moneyed
influence in the legislative appointment of senators as justification for
dirct elections. In light of election practices after the Seventeenth Amendment,
it seems warranted to dismiss this consideration without further inquiry.
But while a full exploration of the history of Senate elections is not
within the scope of present investigation, the highlights will suffice
to show that the problems which had arisen did not originate from the originally
intended form of elections, but from the failure to uphold it.
Indeed, in the first few decades under the Constitution, the legislative
election of senators produced statesmen of the first order. As late as
1834, Alexis de Tocqueville remarked upon the chamber's "eloquent advocates,
distinguished generals, wise magistrates, and statesmen of note, whose
arguments would do honor to the most remarkable parliamentary debates of
Europe." Contrasting it to the "vulgar demeanor" of the lower house, filled
as it was with "obscure individuals," "village lawyers," and "persons belonging
to the lower classes of society," de Tocqueville attributed the Senate's
superiority to the manner by which it was appointed. So impressed was this
French aristocrat with the process of Senate elections that he calculated
that the "American republics will be obliged more frequently to introduce
the plan of election by an elected body into their system of representation,
or run the risk of perishing miserably on the shoals of democracy."
22
It was at about this time that the course of the American republics
took a turn toward the shoals. In fact, in the same year that de Tocqueville
was singing the praises of indirect elections, Senate incumbent George
Poindexter and challenger Robert J. Walker toured the state of Mississippi
in an unprecedented campaign to gain popular support for their respective
candidacies in a strategy that would soon become known as "canvassing the
public." Party leaders would nominate a popular Senate candidate in advance
of the elections for state legislators, then dangle the nominee before
the public. The idea was that the people would elect the legislator who
was in the same party as the most popular Senate candidate. In short order
it was taken for granted that the people selected the Senator, and that
the job of the legislator, like the job of presidential Electors since
the Jacksonian Era, was simply to deliver the mandate.
The practice was well established in 1841, when Governor Polk declined
to convene a special session of the Tennessee legislature to fill a Senate
vacancy on the grounds that in the last election of state legislators,
the members "had not been chosen [by the people] with the selection of
Senators in view." And while Americans are likely never to forget the Lincoln-Douglas
contest of 1858, they are almost certainly unaware that the most famous
debates in the history of Senate campaigns were entirely against the spirit
of original intent, reducing the Illinois legislature to a mere registering
body for the popular choice of senators.23
The legislators became even more restricted with the advent of popular
primaries. Essentially, the primary is an intra-party election held before
the general election, intended to make nominations more democratic. As
was true also of direct legislation, the primaries rarely drew a majority
of the eligible voters, but the legislators, as a rule, were guided by
the results. Otherwise they incurred the risk of losing the party's backing
in their own elections. Because party caucuses and party conventions had
previously nominated senators, there is a tendency to think of the primary
as originating in popular reaction against the intrigues of nominating
bodies that excluded the general voter. But the primary made its earliest
appearances in the Western states, usually within a few years of statehood.
Often these states entered the Union with them. This left little time to
have evolved a sophisticated apparatus of corruption, let alone to have
generated a popular "reaction" against it. Besides, even in the older states
that eventually adopted the senatorial primary, it was the legislators
who initiated and passed the laws needed to put the system in effect.24
The state legislators had abdicated their role, or else the people had
usurped it, in the election of United States senators. While the first
proposal for a direct elections amendment to the Constitution was submitted
in Congress as early as 1826, it did not get anywhere and was offered only
sporadically until the late 1880s.25
But while the form of Senate elections remained, the canvass and the primary
had changed the essence of those elections long before the Seventeenth
Amendment. By popularizing the elections the process was made ripe for
corrupting influences. The legislators were chosen less on their own merits
than on the basis of whom they professed to support in the upcoming Senate
elections, which gave a certain power to those who did the nominating.
Locally elected delegates, having been consigned to a more obscure role
than they had enjoyed in the early republic, necessarily pooled their resources,
organized themselves into parties for the purpose of winning elections,
supported the schemes of other party members in order to stay in good standing
with the organization, and generally went along with the party leadership
in matters not directly affecting their constituents.26
Failing to do so could mean being scratched from the ballot at the next
nominating caucus. States which had devolved the power of nominating directly
upon the people only increased the difficulties of the original predicament.
To finance his candidacy, a would-be legislator had to pay for two campaigns,
one in the primary, and one in the general election. As the political historian
Henry Jones Ford observed, the primary merely "duplicates elections and
intensifies the demands for party subsistence."
27
There was also the matter of publicizing and funding the Senate candidacy
itself. Making statewide appeals to the mass electorate was inherently
expensive, which no amount of campaign reform laws would ever ameliorate.
And the organized interests and professional electioneers neccessary to
marshal mass majorities, or even sufficient pluralities, would naturally
expect some share in the spoils of victory.
The intrigues, improprieties and illegalities would be difficult to
measure precisely, particularly because an election that was unpopular
was often portrayed as the result of underhandedness. In states where senatorial
primaries succeeded only in producing a number of local mandates, the legislators
were forced to compromise, and their choice was usually unpopular with
any constituency that did not have its way. But it is a matter of record
that the first case of bribery reported in the election of senators did
not occur until 1872. From then until the ratification of the Seventeenth
Amendment--a period when the independence of state legislators was losing
ground to the popular primary--the number of allegations of corrupt elections
rose to fifteen.28
Considering the extent to which the process of Senate elections had already
been popularized, the reformer's assertions that they had become more corrupt
did not exactly support the case for popularizing the process even further.
On the whole, most of the muckraking exposés of Senate elections
turned out to be nothing more than good copy. But railing against the special
interests and the status quo was a good attention-getter on the stump.
There was more than a little irony in such tactics. By the time a bill
to submit a direct elections amendment to the states finally got a hearing
on the Senate floor, nearly two-thirds of the senators had been nominated
through the process of statewide primaries. In many instances, as in the
case of Wisconsin's Robert LaFollette and Indiana's Albert Beveridge, the
candidates came to office by virtue of their shrewd organizational skills,
buttressed by ruthlessly efficient command of political patronage. In other
cases, they spent large sums from their personal fortunes to buy publicity;
in the instance of Isaac Stephenson, LaFollette's Wisconsin ally, it was
to buy his own newspaper.
Meanwhile, a comparison between the portfolios of those who voted against
the direct elections resolution when it was first put to the Senate in
1911, and of those who supported it, reveals the latter to have been no
less connected to the great capital interests of their states than was
true of the former. In actuality, then, the struggle for direct elections
was hardly a struggle between the henchmen of plutocracy and the defenders
of pious labor. It was a class conflict only in the minds of the Progressives,
who, as it turns out, had reached their high positions through much the
same tactics and corporate alliances that they proposed to reform by changing
the Constitution.29
No doubt, the distasteful practices in which they were willing to indulge
to win the office were thought to be necessary evils in the battle to purify
the system and restore power to the people. Senator Weldon Heyburn of Idaho,
a staunch opponent of the amendment, ridiculed supporters who claimed to
be leading the fight against the status quo, when, in fact, they personified
it. "I should like to see some Senator rise in his seat and say that the
legislature of his state which elected him was not competent, was not fit,
was not honest enough to be trusted," exclaimed Heyburn. "Then I should
be interested to see him go back and say 'I am a candidate forreelection.'
" 30
Ultimately, the corruption of the Senate election process would seem
to have started with the corruption of original intent as early as the
Jacksonian Era. That intent, contrary to Progressive belief, was that the
role of the people would be limited to choosing good legislators at the
local level, and trusting the hierarchical system of representation to
filter and refine popular sentiments in the appointment of senators. The
eventual failure of the original method of elections was as much an indictment
of the people themselves as it was of the system. Having proven incompetent
in the election of honest legislators, their proposed reform consisted
of transferring Senate elections from the "corrupt" few directly to the
incompetent many.
But, with the exception of 1787, this has been the general direction
of American constitutional reform. As Walter Lippmann clearly perceived,
"The American people came to believe that their Constitution was a democratic
instrument, and treated it as such."
31
When it failed to work as expected, it was the Constitution, not the mistaken
assumptions, that had to be changed. As exemplified in the election of
senators, the cure for the ills of democracy was believed to be more democracy.
Parties and administrations have come and gone, but that formula has remained
the prescription for American politics down to the present day.
*C. H. Hoebeke is a librarian at the University
of Virginia and Fellow in Constitutional History at the Center for Constitutional
Studies. [Back]
1 In the elections of 1896 and 1900, Bryan was the
presidential candidate for the National People's, or Populist, Party, as
well as for the Democrats. The Populists demanded direct Senate elections
in Bryan's first campaign, both parties embraced the reform in his second,
and the Democrats continued to call for it in the national platform of
1908, when Bryan was nominated for the third time. [Back]
2 Admittedly, in the worst case to date, when Michael
Huffington disbursed $29.4 million in the election of 1994, almost all
of it from his personal fortune, there was scattered criticism of the candidate's
ethics and sense of propriety, but perhaps the principal effect of this
squandered wealth was the cover it gave to his victorious rival, Dianne
Feinstein, whose chief claim to running a virtuous campaign was having
spent "less than half" of what was spent by Huffington. "Contested Winners
Seated; Challengers in Pursuit," Congressional Quarterly Weekly,
(Jan. 7, 1995): 28. The average expenditure cited above is from 1990, in
which year Texas Republican Phil Gramm made the most expensive bid for
a Senate seat, spending $12.5 million. Congressional Quarterly Almanac
46 (101st Congress, 2nd Session, 1990): 909-910. [Back]
3 For a particularly sobering depiction of modern Senate
politics behind the scenes, see James A. Miller, Running In Place, Inside
the Senate (New York: Simon and Schuster, 1986). [Back]
4 Congressional Record (101st Congress, 2nd
Session): S11468. [Back]
5 The Constitution was hardly a hundred years old,
for instance, when Herman V. Ames managed to compile an entire volume of
congressional proposals for its alteration. The Proposed Amendments
to the Constitution of the United States during the First Century of its
Existence (New York: B. Franklin, 1970). In 1908, 110 members of the
House had pledged to support an amendment establishing the national referendum,
Margaret A. Schaffner, "The Initiative, the Referendum, and the Recall,"
American
Political Science Review, 2 (November 1907): 39. At the same time that
the Seventeenth Amendment was in the process of ratification by the states,
members of the Senate judiciary committee proposed the popular recall of
federal judges. S. Rep. 147 (63rd Congress, 2nd Session), Pt 2, 1-3; Congressional
Record (61st Congress, 3rd Session): 2770. Add to these the various
third-party platforms that have made a range of demands, from the Socialists'
call for abolishing the President and Senate to the Progressive Party's
plank for finding "a more easy and expeditious method of amending the Federal
Constitution," and the predilection for treating everyday political issues
as systemic constitutional weaknesses becomes more readily visible. Kirk
H. Porter and Donald H. Johnson, National Party Platforms 1840-1972,
5th ed. (Urbana: University of Illinois Press, 1975), 64, 96, 176. The
tendency evidently remains as strong as ever in our own time, as reflected
in recent proposals for constitutionally outlawing affirmative action,
unfunded mandates, desecration of the national flag, etc. (However reprehensible
such practices may be, their redress does not require restructuring the
fundamental procedures of government.)
[Back]
6 Of the twenty-five senators who sought reelection
immediately after the direct-elections amendment went into effect, two
were defeated for their party renomination; all of the rest were elected
by popular vote. Guide to U.S. Elections (Washington, D.C.: Congressional
Quarterly, Inc., 1975), 451. Even Boise Penrose of Pennsylvania, one of
the few senators who resembled the muckraking caricature of "The Rich Man's
Club," won a landslide popular victory, upon which he is reported to have
said, "Give me the people every time!" Leona and Robert Rienow, Of Snuff,
Sin and the Senate (Chicago, Follette Publishing Co., 1965), 305. [Back]
7 Congressional Record (53rd Congress, 2nd Session):
7775; Charles J. Fox, "Popular Election of United States Senators,"
Arena
27
(May 1902): 456-457. [Back]
8 In his classic study of the Confederation period,
The
Creation of the American Republic, 1776-1787 (originally Chapel Hill:
University of North Carolina, 1969), historian Gordon Wood observes that
the attacks on private property, either through out-right confiscation,
cancellation of the public debts, or deliberately inflationary monetary
schemes, did not result from arbitrary magistrates' acting in defiance
of the popular will, but in fact came from "laws enacted by legislatures
which were probably as equally and fairly representative of the people
as any legislature in history." (New York: Norton, 1972), 404. See also
Forrest McDonald, Novus Ordo Seclorum, The Intellectual Origins of the
Constitution (Lawrence: University of Kansas, 1985). [Back]
10 James Madison, Note to the Speech of James Madison
on the 7th Day of August (1787), The Debates in the Federal Convention
of 1787 (Buffalo: Prometheus Books, 1987), vol. 2, 620. [Back]
11 The subject of the classical influence on the development
of the federal checks and balances is treated more fully in C. H. Hoebeke,
The
Road to Mass Democracy: Original Intent and the Seventeenth Amendment
(New
Brunswick, N.J.: Transaction, 1995), as is the founders' emphatic and articulate
rejection of the simpler forms of democracy espoused by Rousseau and Paine.
See also McDonald, 209-215; and Gilbert Chinard, "Polybius and the American
Constitution," Journal of the History of Ideas, 1 (1940): 38-58.
[Back]
13 The judiciary was not at that time considered a
political branch, but caution was taken to make the manner of its appointment
distinct from that of the others and to preserve its independence through
life tenure for its members. [Back]
14 The Federalist, no. 51: 336-337; no. 73:
478. [Back]
15 See particularly the warnings of national "encroachments"
on the states by George Mason, who became a leading opponent of the Constitution
during the Virginia ratification debates, in Madison, Notes, vol.
1, 74. [Back]
19 "Any law which the people has not ratified in person
is void; it is not law at all." Jean Jacques Rousseau, The Social Contract,
trans. Maurice Cranston (New York: Penguin, 1968), 141. [Back]
21 Charles Beard, An Economic Interpretation of
the Constitution of the United States, 2nd ed. (New York: Macmillan,
1935), 161; William Allen White, The Old Order Changeth (New York:
Macmillan, 1910), 34.; Congressional Record (61st Congress, 3rd
Session): 2494-2495. [Back]
22 Alexis de Tocqueville, Democracy in America,
trans. and ed. Henry Reeve (New York: Vintage, 1945), vol. 1, 211-212.
[Back]
23 William H. Riker, The Development of American
Federalism (Boston: Kluwer Academic, 1987), 148-149. [Back]
26 The obscurity referred to resulted from the egalitarian
distrust of representative institutions, of which the subversion of the
legislators' role in Senate elections was but one manifestation. Other
manifestations include the increasing use of the initiative and the referendum
to make laws without regard to the will of the legislatures, and the mushrooming
details of state constitutions, which, as Herbert Croly observed,"gradually
hemmed [legislatures] in with so many restrictions . . . [that] they offered
no opportunity for a man of ability and public spirit." The Promise
of American Life (New York: Bobbs-Merrill Company, Inc., 1965), 321.
[Back]
27 Ford quoted in Charles Edward Merriam, Primary
Elections: A Study of the History and Tendencies of Primary Legislation
(Chicago: University of Chicago Press, 1908), 129. [Back]
28 George H. Haynes, The Senate of the United States:
Its History and Practice (Boston: Houghton Mifflin, 1938), vol. 1,
127-129. [Back]