Article I, section 3 of the Constitution provided for state legislatures to elect senators. The framers hoped that this arrangement would give state political leaders a sense of participation in the new federal system and calm their fears about the dangers of a strong centralized government. The state legislatures, the framers argued, would provide the necessary "filtration” to elect the most accomplished individuals and insulate them from pressures of popular opinion.
By the 1830s and 1840s, with two national political parties firmly established, party caucuses in the state legislatures took the first step of choosing a candidate, with party leaders working to align their members in support of a single person. In most cases, the majority party candidate would be formally elected by the legislature. Factions within a majority party could lead to contentious battles over competing candidates, however, and could even create an opportunity for the minority party to prevail in its choice. In some cases, such as the famed Illinois contest between Abraham Lincoln and Stephen Douglas in 1858, Senate candidates sought popular support, and individuals running for the state legislature publicly aligned with their preferred Senate candidate. In most cases, however, state-based party caucuses were the primary forum for choosing senators. By the late 19th century, senators often served as the head or “boss” of state party organizations, all but assuring their election or reelection to the Senate.
In cases where the two houses of a state legislature were controlled by different parties, a deadlock sometimes occurred over the election of a senator, leaving a Senate seat vacant for extended periods of time. Many states required the two houses to meet jointly to resolve a deadlock, and occasionally a majority in one house refused to meet with the other, leaving the joint session short of a quorum. In Indiana in 1855, for example, the pro-slavery Democrats held a slim majority in the state senate while a new anti-slavery opposition party—what would become the Republican Party—controlled the larger state house of representatives. When the house failed to concur in the state senate’s choice for a U.S. senator, the Democrats refused to meet in joint assembly, where the Republicans would have prevailed, leaving the seat vacant. The legislatures of California and Missouri were similarly deadlocked in 1855 and each left a Senate seat vacant until 1857.
Following the Civil War, Congress passed the first law regulating how state legislatures conducted their Senate elections. The move was in response to the 1864 contested election of John Stockton of New Jersey. In that election, Democrats in the New Jersey legislature changed their rules to allow a candidate to be elected with a plurality of the vote rather than a majority. In the U.S. Senate, Republicans objected to the rules change and challenged Stockton’s election. In defending his right to the seat, Stockton argued that not all states elected their senators in the same way and presented a report that illustrated the inconsistency in such elections. The Senate ultimately voted against seating Stockton, and in 1866 Congress passed a law establishing uniform procedures for election of senators by state legislatures.
The 1866 law stated that each house of a state legislature was to meet separately and vote to elect a senator. If a majority of both houses favored the same candidate, that candidate was the winner. If the two houses differed, however, they were required to meet in joint session and the candidate who won the majority vote of the joint assembly would be the winner. If no candidate gained a majority vote of the joint assembly, the two houses were required to meet jointly and vote each day of the session until a winner was elected.
The new law brought consistency to the election of senators but did not put an end to electoral deadlocks and resulting vacancies. In some cases, state legislatures adjourned without electing a senator. Although governors could appoint senators to vacancies when legislatures were out of session, the Senate exacerbated the problem in 1893 when it refused to seat senators appointed to fill vacancies caused by deadlocks in the legislature. In 1899 the situation in Delaware became so extreme that the state legislature did not send a senator to Washington for four years. Between 1891 and 1905, state legislatures deadlocked 46 times, causing vacancies lasting various lengths in time, and ultimately failed to elect a senator 14 times.
Along with electoral deadlocks, numerous Senate elections were marred by charges of corruption, as some candidates turned to bribery to secure the votes of state legislators. Nine bribery cases were brought before the Senate between 1866 and 1906. In the first decade of the 20th century, reformers of the Progressive movement attacked what they saw as the Senate’s domination by party leaders and big business lobbyists. In 1906 William Randolph Hearst’s Cosmopolitan magazine published a series of articles titled The Treason of the Senate, which portrayed senators as the pawns of industrialists, financiers, and party machines. This and other muckraking journalism generated popular support for placing Senate elections in the hands of the people.
Direct popular election of senators had first been proposed in 1826 and by 1912 at least 287 such proposals had been introduced in Congress. In the mid-1890s, the Populist Party incorporated the direct election of senators into its party platform. Between 1893 and 1902, a constitutional amendment to elect senators by popular vote was proposed in Congress every year. Tired of the cumbersome election process, some state legislatures even submitted their own petitions calling for a direct election amendment.
In the absence of a constitutional amendment, some states initiated changes on their own. The “Oregon Plan,” for example, required candidates for the state legislature to pledge their support for the Senate candidate who won the popular vote in a primary election. Such experiments encouraged other states to adopt measures to reflect the people's will. By 1911 more than half of the states were utilizing some form of popular election to choose U.S. senators.
As more senators were elected based on state referenda, following models like the Oregon Plan, support in the Senate grew for direct election. The House passed a direct election amendment in 1911 and the Senate followed suit, passing an amended version introduced by Joseph Bristow of Kansas. In the summer of 1912, the House approved the Senate version of the amendment and sent it to the states for ratification. Connecticut's approval on April 8, 1913, gave the Seventeenth Amendment the required three-fourths majority needed for enactment. The following year marked the first time all senatorial elections were held by popular vote.
The Seventeenth Amendment restates the first paragraph of Article I, section 3 of the Constitution and provides for the election of senators by replacing the phrase "chosen by the Legislature thereof" with "elected by the people thereof." In addition, the amendment continued to allow the governor of each state, if authorized by that state's legislature, to appoint a senator in the event of a vacancy, until a special or general election occurs.
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