The 17th Amendment Rewrote Who Senators Answer To

One line in the Constitution used to decide whether your U.S. senator answered first to party voters or to state lawmakers, and changing that line reshaped American politics. We’re joined by Dr. Sean Beienburg to dig into the 17th Amendment and the long path from legislative selection to direct election of senators, including why the founders built the Senate the way they did and what problem they thought it solved for federalism and state sovereignty.

We walk through the pressure campaign that builds throughout the nineteenth century: the fading practice of legislative “instruction,” the very real problem of statehouse deadlocks that leave Senate seats empty, and the Progressive Era argument that corruption thrives when a small legislature can be bought. Then we get into the clever workaround that makes reform feel inevitable the Oregon Plan, where advisory popular votes and candidate pledges create a de facto direct election before the Constitution ever changes. It’s a practical lesson in how constitutional change often happens through incentives and pressure, not just lofty ideals.

Finally, we take on the online controversy that refuses to die: the claim that the 17th Amendment destroys federalism and unlocks big government. We explore what the evidence can and can’t support, why fiscal capacity and political demand matter at least as much as election mechanics, and why someone who cares about states’ rights might even find reasons to like direct elections. If you enjoy American history, constitutional law, and real-world civics, subscribe, share this with a friend, and leave a review. What do you think the Senate is for today?

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Transcript

Welcome And The Surprise Amendment

SPEAKER_00 0:46

All right, welcome back to Civics in the Year. Today we're talking about an amendment that I don't know that a lot of people know. I think that when I was learning amendments in school, it wasn't high on the top of my list. However, it is actually really important because it's how we choose our senator. So today we're talking about the 17th Amendment with Dr. Sean Vienberg. Dr. Vienberg, can you give us a little background on the 17th Amendment, please?

Why The Founders Built The Senate

Instruction And Early Push For Control

Deadlocks Corruption And Progressive Anger

The Oregon Plan Workaround

SPEAKER_01 1:14

So the what the 17th Amendment does, I'll give you that and then I'll back up to sort of how it how it developed. But the 17th Amendment effectively reverses the original constitutional rule that state legislatures picked senators. The 17th Amendment basically says senators are picked by their voters, basically akin to the House. So the reason for the original, the reason for the Senate itself, you can read Federal 62, Madison talking about it, Federals 59, Hamilton talking about it, probably through griddeteh, basically is that you want to have the Senate do a few different things. One, its main purpose in some sense, is to protect federalism and state sovereignty by both institutionally empowering the state legislatures to say, like, nope, that's going to screw with our autonomy. Don't do that. More broadly speaking, it sort of embeds the principle that the United States is not just an interchangeable homogeneous mass, that the states, as state entities, state with limited, with some sovereignty, ought to be recognized. So that's its sort of main purpose. But it also is supposed to create just simple bicameralism of a second structure of, you know, just a different set of constituencies, so that you have to have sort of more deliberation from different groups. And then finally, the long terms is supposed to be kind of a deliberation or filtering mechanism. You hear that apocryphal thing about the cooling from the craziness of the house or whatever. So at the time of the founding and senators are picked by the state legislature. But by the 1820s and 30s, you see the sort of movement that will partly that will partly develop into Jacksonian democracy, saying, like, no, we really want to have more direct control by the people. We don't really want the state legislators to do that. So that's kind of an odd split between the Jacksonian wing on federalism and the Jacksonian emphasis on direct democracy. But that doesn't go very far in the 1820s. So there's a practice in this era called instruction. Instruction is when the state legislators say, Senators, we want you to do X. And often this had a, and if you don't do X, we will replace you when you're next up. That practice for various reasons starts to fall away. Particularly efforts to make it formally binding before the Civil War in lots of places tapers out. And so what the 17th Amendment is supposed to do as a practical matter, there's a concern that the Senate is not functioning well in the late 19th century. There's a concern that one, state legislatures will fight and therefore not pick a senator. And so then maybe you only have one senator or no senators if you are a state. That seemingly is actually counterproductive to your state having some influence. So that was a concern people raised. Second is even if they manage to get them, they spend half their time fighting about senators instead of schools, potholes, whatever the things you think state governments are supposed to be working on. Third, and this is something that the progressives, the sort of people turning into the progressive movement, hype up, the fear is that the Senate is corrupt, that it's basically plutocrats buying senators. And it will be easy because it's easy to buy the state legislatures. And so their fear, their thought is it's harder to corrupt the people than the state legislatures. This is part of the same argument for why they want to have initiatives. Obviously, as an empirical matter, there are reasons to think maybe they got this one wrong. And in fact, you can buy your way with advertisements, but that's the belief that it's easier to corrupt a legislature than a than a voter electorate. And so the 17th Amendment is designed to correct those things. But the constitution is pretty specific. The state legislature gets to pick your senators. So some states start in spooling up primaries. So 1903, for example, Wisconsin, Oregon, or states that come up in a lot of progressive era reforms, they're putting an advisory thing on their ballot. Who do you voters would you like to see as the senator with an asterisk, right? This isn't binding, but this is a useful signal to your state legislatures. And then eventually this gets enhanced as a version of any state legislature has to then, legislator, as part of their campaign, will pledge whether to endorse or not endorse that advisory vote by the voters. So de facto, this creates a ton of pressure on the state legislators to, in fact, endorse what the people have voted for. So it creates a kind of indirect mechanism for direct election of senators. This is often called the Oregon plan. And so the Oregon technique or I can't hear exactly what it's the Oregon plan technique, not method, whatever. Um and this becomes increasingly something people are talking about. And remember, there's two ways to amend the constant. Now, who does who's not gonna want to change this system? If you're a sitting U.S. senator, you're pretty sure you know how you got your job. You're pretty this is why senator folks often incumbents tend to dislike campaign finance laws or changes, even because, like, you dance with them that brung you, right? You got elected on this system, you might as well keep it. So senators are not keen on this. So this is not gonna go anywhere in Congress. But remember, there's a second model in Article V state legislatures can petition for a constitutional convention, and this it's starting to look clear that they're gonna be able to do this. And so eventually enough senators say, all right, fine, like I'm gonna get hammered out. My my voters are, you know, my state legislators are getting pressured by their de facto pressure. So the 17th Amendment gets gets pushed through. There are some critics, and we can talk more about them in a second, but that's basically, and then it gets ratified very easily by the state legislators who they're happy to like not have to deal with this problem anymore. I think UT shoots it down. If I recall, there's one or two states that shoot it down, but it's it sales pretty easily, basically.

SPEAKER_00 7:57

That's interesting that the legislatures wouldn't want that role, but I can also see why they wouldn't, like just washing their hands of it. How does this make sense?

SPEAKER_01 8:07

How many podcasts did we do on Congress giving away its power to the presidency?

What Changed After Ratification

SPEAKER_00 8:11

Like I know, but I feel like state legislatures would want to be able to pick who represents their states. I guess too, because I understand the, you know, the founding and and why it was chosen that way. However, clearly I don't live in the founding, so I've only ever voted for our senators here in the state of Arizona. So what kind of changed politically then after the passing of the 17th Amendment?

Federalism Fears And Modern Arguments

A Hot Take On States Rights

SPEAKER_01 8:40

So this is a very loaded question, and I will have some relatively hot takes on this because this is something that particularly you poke around on the internet, you will find a very, very, very dedicated wing of people who are convinced the 17th Amendment was the ruin of American constitutionalism. Interesting. And I actually share many of their concerns for what the ruin is, but I don't think that the 17th Amendment is the cause. But basically, the major changes that I think that the le let the literature has suggested happen is one, it used to be much easier for people in the Senate to sort of rotate into the executive branch temporarily and then rotate back out. So, for example, you're in a scenario where you know the there's a senator who's regarded as like the expert or really friendly with a particular country. Like maybe you need to send that person as an ambassador, or maybe you need that person as secretary of state or whatever, right? So you sort of temporarily assign them off, and the state legislators are professional enough to know that like we want this person back in the Senate ASAP, but we need to sort of spare, spare at this time, it would have been him for the rest of the country's benefit. So that kind of in and out, in and out thing, like that phase away from the Senate, uh, from after the 17th Amendment. There is a debate, and this is fairly politically loaded. Does the 17th Amendment actually increase or decrease the strength of special interests? So the progressives are convinced that this will decrease their power. Other folks argue that in fact it's easier for an organized machine to basically like run a statewide campaign, right? A big statewide campaign versus lots of little state legislators. So, you know, there that's there's that's sort of empirically debated in in the literature. The the really controversial argument is does the 17th Amendment help weaken American federalism, right? Does it base is that basically the mechanism that empowers the federal government? And the argument for this is that if you look at what so the incentive, as you alluded to, if you're a state legislator and you want to protect your power, you're gonna send senators who say, I won't pass laws screwing with you. Like we will make sure the federal government blocks most things so that you at the state level can do this at the state level. So that's what the the argument is. And folks will point out and they say, aha, there's the 17th Amendment, and therefore the federal government expands massively in the next 20 years. This fear is voiced by a guy we've talked about before. We'll definitely talk about him again, Elih Root, who is one of the leading opponents of the 17th Amendment in the Senate, who says, if you do this, this is going to ruin federalism. And nobody else is that persuaded that it's going to wreck federalism, even people who are very concerned about federalism, right? So he's like the only one really shouting about the federalism concerns. So, particularly kind of Tea Party-ish or libertarian Republicans are convinced the 17th Amendment is like what empowers the progressives, Woodrow Wilson, Franklin Roosevelt, etc., to massively increase federal power. I'm a little more skeptical of that narrative, insofar as not too long after the 17th Amendment, you get Harding and Coolidge, who are hardly paragons of, you know, big government, despite what George Hunt says in Arizona, hardly paragons of big government like expansion of federal power. The better argument, I think, would be that the 16th Amendment creates sort of the fiscal capacity to do that. Even then, I'm not convinced that it is that. So for example, I I actually argued about this. I did a bad thing, Liz. I wrote an article. I wrote an article, a public article a couple of months ago that was posted, and I waited into the comments. I and I responded to the people in the comments. I signed up for an account with the people who published my article, and I waited into the comments. And I got into this fight uh with the 17th Amendment guy, basically saying exactly this. And he said, if we didn't have the 17th Amendment, we wouldn't have had the New Deal and we'd have stronger states' rights. And I said, Yes, but sir, if you actually look at the legislative endorsements of any of the like implementing legislation of the New Deal, the state legislators were slobbering all over it. Like, so whereas the assumption that you're making is the state legislators would never play ball with this and give their power away. Like, empirically speaking, the New Deal would have happened, 17th Amendment, no 17th Amendment. So it strikes me as at the very least overstated to view this as the end federalism. The most kind of far out argument on this is by a scholar at uh who just retired from Claremont-Makinna College, uh named Ralph Rossom, who takes the very strange, to my mind, take that the 17th Amendment passage meant that it's inappropriate for the Supreme Court to implement federalism. Because his argument is the 17th Amendment was the structure that was supposed to was a structure, maybe the structure that was supposed to enforce federalism. They took that away. And so therefore, this is a sign from the American people they shouldn't endorse federalism, which I just find like nobody like Calvin Coolidge and nobody is saying in like 1923, well, you know what? Federalism is obsolete. Forget it. We passed the 17th Amendment. The just the debate other than LHU Root doesn't seem like they thought that they were doing anything to change the scope of federal power. It was basically you know a protocol question more than a powers question. So I I don't I find that a very odd argument. The Supreme Court was enforcing federalism before the 17th Amendment. The Supreme Court enforced federalism in the years after the 17th Amendment. LAHU Root, the guy who was saying don't pass the 17th Amendment, goes to the Supreme Court and says, strike stuff down on federalism. Like it's just a very odd argument to me. But so that's the that's the the hot take, I suppose, which is people who I'll I'll make the even hotter version of it. I actually think that people who care about states' rights probably should like the 17th Amendment. Because it goes back to the argument that if you think that your state government should be focusing on your state policies and priorities, you want them being state stuff and not just a de facto ratifying convention for federal politics. So I actually argue that the 17th Amendment on net may even be positive for federalism or states' rights. I'm not totally convinced of that, but it's at least an ambiguous enough case that I don't think that like the 17th Amendment was the like the one cute, the one neat trick that destroyed American federalism, which you will find people say on the internet.

SPEAKER_00 15:48

I will say that I have learned I do not often wade into comments, but I have learned that people in the comments don't often want to have a conversation. They just want to state their opinion. And if you do not agree with their opinion, you are wrong.

SPEAKER_01 16:02

This guy did. He actually went back and forth like five times. And at the end, he said, Wow, I've thought about this differently. Maybe I should buy your book and learn something else.

SPEAKER_00 16:11

That is the exception and not the rule. But that's good. I think that those kinds of things are helping because when we talk about, you know, when we're giving opinions based on, you know, facts and primary sources, like obviously people are going to have different interpretations, different thoughts. But I didn't know the 17th Amendment was so controversial, but now I do.

SPEAKER_01 16:31

So it's not, except among a very, very, very, very small sense.

Closing Thoughts And Next Amendment

SPEAKER_00 16:36

That's still a controversial. But again, I would have never thought that like giving that power to the people would be like, I didn't think it would be a big deal at all, but clearly it was. Some people did not like it, and some people still don't like it. So we're going to continue on our amendment streak with our next episode talking about a very controversial amendment, the 18th Amendment. So, Dr. Beinberg, thank you very much.