Two factors led to enactment of the 17th amendment. First was the problem that many state legislatures deadlocked on their selections for the Senate. The upper house and the lower house could not agree on a choice, or it was prohibitively difficult for one candidate to get an absolute majority in each house (as opposed to a plurality), which was required by federal law. Some states went without representation in the Senate for years as a consequence.
The second problem involved a perception that election of senators by state legislatures made them more susceptible to corruption by special interests. The Hearst newspapers were a major force arguing this point in the early 1900s.
The pressure of public opinion eventually forced the Senate to approve a constitutional amendment changing the election of senators to our current system of popular vote. The fact that many states, such as Oregon, had already adopted a system whereby legislatures were required to choose senators selected by a popular vote was ignored.
The 17th amendment was ratified in 1913. It is no coincidence that the sharp rise in the size and power of the federal government starts in this year (the 16th amendment, establishing a federal income tax, ratified the same year, was also important).
As George Mason University law professor Todd Zywicki notes, prior to the 17th amendment, senators resisted delegating power to Washington in order to keep it at the state and local level. "As a result, the long term size of the federal government remained fairly stable during the pre-Seventeenth Amendment era," he wrote.
Zywicki also finds little evidence of corruption in the Senate that can be traced to the pre-1913 electoral system. By contrast, there is much evidence that the post-1913 system has been deeply corruptive. As Miller put it, "Direct elections of senators ... allowed Washington's special interests to call the shots, whether it is filling judicial vacancies, passing laws or issuing regulations."
Miller also lays much of the blame for the current impasse in confirming federal judges at the door of the 17th amendment. Consequently, on April 28 he introduced S.J.Res. 35 in order to repeal that provision of the Constitution.
Over the years, a number of legal scholars have called for repeal of the 17th amendment. An excellent summary of their arguments appears in Ralph Rossum's recent book, "Federalism, the Supreme Court and the Seventeenth Amendment." They should at least get a hearing before Zell Miller departs the Senate end the end of this year.
Bruce Bartlett is a former senior fellow with the National Center for Policy Analysis of Dallas, Texas. Bartlett is a prolific author, having published over 900 articles in national publications, and prominent magazines and published four books, including Reaganomics: Supply-Side Economics in Action.
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