WEBVTT 00:00:00.000 --> 00:00:02.680 What if right now, as you're listening to this, 00:00:02.759 --> 00:00:05.500 you had absolutely no say in who your state's 00:00:05.500 --> 00:00:08.140 U .S. senators were? None at all. Right. Imagine 00:00:08.140 --> 00:00:10.880 just showing up to the ballot box on Election 00:00:10.880 --> 00:00:14.199 Day and the names of the people who will represent 00:00:14.199 --> 00:00:16.239 your state in the highest levels of the federal 00:00:16.239 --> 00:00:18.059 government simply aren't there. It's hard to 00:00:18.059 --> 00:00:20.219 even picture today. It really is. But for the 00:00:20.219 --> 00:00:22.539 first century of American history, that wasn't 00:00:22.539 --> 00:00:25.190 some hypothetical scenario. That was just. The 00:00:25.190 --> 00:00:26.969 law of the land. Yeah, a completely different 00:00:26.969 --> 00:00:29.510 system. Welcome to this dump dive into the source 00:00:29.510 --> 00:00:32.310 material. Today, we're looking at the 17th Amendment 00:00:32.310 --> 00:00:35.049 to the United States Constitution. We've got 00:00:35.049 --> 00:00:37.670 a stack of really fascinating sources in front 00:00:37.670 --> 00:00:41.049 of us. We do, yeah. Historical texts, deep constitutional 00:00:41.049 --> 00:00:44.149 analyses, and some extensive Wikipedia excerpts. 00:00:44.229 --> 00:00:46.789 And our mission for this deep dive is to uncover 00:00:46.789 --> 00:00:49.469 how a single, you know, seemingly procedural 00:00:49.469 --> 00:00:52.729 change to the Constitution radically altered 00:00:52.729 --> 00:00:54.750 the balance of power in America. It completely 00:00:54.750 --> 00:00:56.890 shifted the influence of special interests, too. 00:00:57.179 --> 00:00:59.820 Exactly. And we'll also look at why some modern 00:00:59.820 --> 00:01:02.259 politicians are actively trying to repeal it. 00:01:02.420 --> 00:01:05.040 So, OK, let's unpack this, because this is one 00:01:05.040 --> 00:01:07.879 of those topics that sounds like a dry civics 00:01:07.879 --> 00:01:09.760 lesson on the surface. But it's actually filled 00:01:09.760 --> 00:01:13.099 with bribery, political gridlock and massive 00:01:13.099 --> 00:01:15.400 unintended consequences. No, totally. I mean, 00:01:15.420 --> 00:01:17.280 I always just assumed we voted for our senators. 00:01:17.319 --> 00:01:20.700 How did this original architecture actually work 00:01:20.700 --> 00:01:22.989 on Election Day? Well, what's fascinating here 00:01:22.989 --> 00:01:26.090 is how this single amendment fundamentally redefined 00:01:26.090 --> 00:01:29.049 the relationship between the people and the states. 00:01:29.129 --> 00:01:30.769 Right. When we look at the original design of 00:01:30.769 --> 00:01:34.170 the Constitution, the framers had a very specific, 00:01:34.349 --> 00:01:37.370 carefully balanced architecture in mind. Before 00:01:37.370 --> 00:01:41.930 1913, under Article I, Section 3, state legislatures 00:01:41.930 --> 00:01:44.750 picked U .S. senators for six -year terms. Not 00:01:44.750 --> 00:01:46.890 the voters. Right. Not the voters. The framers 00:01:46.890 --> 00:01:49.250 didn't view the people and the states as the 00:01:49.250 --> 00:01:51.469 exact same political entity. That seems like 00:01:51.469 --> 00:01:53.890 such a foreign concept to how we view democracy 00:01:53.890 --> 00:01:56.069 today. Why did they separate those two concepts? 00:01:56.370 --> 00:01:58.370 We have to look back to the Connecticut Compromise 00:01:58.370 --> 00:02:00.819 during the Constitutional Convention. The founders 00:02:00.819 --> 00:02:03.519 were trying to forge a new nation from separate, 00:02:03.640 --> 00:02:06.879 distinct states. And the anti -federalists, they 00:02:06.879 --> 00:02:09.460 were terrified that this new, powerful federal 00:02:09.460 --> 00:02:11.759 government would eventually swallow the states 00:02:11.759 --> 00:02:13.580 whole. Like they'd just lose their individual 00:02:13.580 --> 00:02:16.780 sovereignty. Exactly. So the compromise was to 00:02:16.780 --> 00:02:19.680 balance representation by population. in the 00:02:19.680 --> 00:02:22.099 House of Representatives with equal representation 00:02:22.099 --> 00:02:24.520 for the states themselves in the Senate. Ah, 00:02:24.819 --> 00:02:27.800 I see. The House, with their short two -year 00:02:27.800 --> 00:02:30.419 terms, was supposed to be the direct voice of 00:02:30.419 --> 00:02:33.699 the people. But the Senate was designed as a 00:02:33.699 --> 00:02:36.180 direct mechanism to protect state sovereignty. 00:02:36.560 --> 00:02:40.120 It was a counter to populism. So by having state 00:02:40.120 --> 00:02:43.259 legislatures elect senators, the states essentially 00:02:43.259 --> 00:02:45.840 had their own defensive shield against federal 00:02:45.840 --> 00:02:47.780 ovaries. Precisely. It was actually meant to 00:02:47.780 --> 00:02:49.680 be somewhat parallel to the British House of 00:02:49.680 --> 00:02:52.719 Lords. Really? Yeah. The underlying philosophy 00:02:52.719 --> 00:02:55.419 of the era was that the, quote, better men of 00:02:55.419 --> 00:02:58.060 society would be chosen by the upper houses of 00:02:58.060 --> 00:03:01.979 state legislatures. The goal was to provide stable, 00:03:02.020 --> 00:03:04.340 insulated deliberation. Because they didn't have 00:03:04.340 --> 00:03:06.259 to worry about getting reelected by the masses. 00:03:06.560 --> 00:03:09.199 Right. Because these senators weren't accountable 00:03:09.199 --> 00:03:12.099 to the daily whims of the voting public, they 00:03:12.099 --> 00:03:14.479 could afford to take a more detached, long -term 00:03:14.479 --> 00:03:17.199 view of the issues coming before Congress. I 00:03:17.199 --> 00:03:19.800 mean, that sounds incredibly elitist by... today's 00:03:19.800 --> 00:03:22.759 standards. Did they really just trust state politicians 00:03:22.759 --> 00:03:25.560 to pick the best guys behind closed doors? They 00:03:25.560 --> 00:03:28.300 really did. Was anyone at the time pushing back 00:03:28.300 --> 00:03:30.960 on this? Well, the sources revealed just how 00:03:30.960 --> 00:03:33.240 uncontroversial this elitist design was at the 00:03:33.240 --> 00:03:35.919 time. There was only one single delegate at the 00:03:35.919 --> 00:03:38.479 Constitutional Convention who advocated for electing 00:03:38.479 --> 00:03:41.139 senators by popular vote. Just one? Just one. 00:03:41.340 --> 00:03:44.319 His name was James Wilson. He pitched the idea 00:03:44.319 --> 00:03:46.379 of the people directly electing senators and 00:03:46.379 --> 00:03:48.780 his proposal was utterly crushed in a vote of 00:03:48.780 --> 00:03:52.240 10 to 1. Ten to one. The consensus of the era 00:03:52.240 --> 00:03:54.680 was firmly against direct democracy for the Senate. 00:03:54.840 --> 00:03:57.300 In fact, state legislatures even retained the 00:03:57.300 --> 00:04:00.099 theoretical right to instruct their senators 00:04:00.099 --> 00:04:02.979 on how to vote on specific federal bills. I want 00:04:02.979 --> 00:04:05.120 you, the listener, to really imagine that for 00:04:05.120 --> 00:04:07.400 a second. Imagine your current state legislature, 00:04:07.699 --> 00:04:09.259 the folks meeting in your state capitol right 00:04:09.259 --> 00:04:12.259 now, having the power to act like puppeteers. 00:04:12.400 --> 00:04:15.180 Yeah. Directly instructing your U .S. senators 00:04:15.180 --> 00:04:17.800 how to vote in Washington. The senators were 00:04:17.800 --> 00:04:20.160 basically acting as ambassadors for the state 00:04:20.160 --> 00:04:22.660 government. That's a great way to put it. Ambassadors. 00:04:22.759 --> 00:04:24.779 It's just a completely different way of viewing 00:04:24.779 --> 00:04:27.839 federalism. But, of course, any system made by 00:04:27.839 --> 00:04:29.660 humans is going to develop some serious bugs. 00:04:29.839 --> 00:04:32.810 Oh, absolutely. How did this... perfectly balanced 00:04:32.810 --> 00:04:35.550 system start to break down. The system eventually 00:04:35.550 --> 00:04:38.769 began to crack under the weight of severe legislative 00:04:38.769 --> 00:04:42.310 corruption and electoral deadlocks. By the late 00:04:42.310 --> 00:04:44.709 19th century, there was a growing public sentiment 00:04:44.709 --> 00:04:47.009 that Senate seats were literally being bought 00:04:47.009 --> 00:04:50.439 and sold. Just straight up cash for seats. Pretty 00:04:50.439 --> 00:04:52.620 much. It often wasn't about the competence of 00:04:52.620 --> 00:04:55.160 the candidate anymore. It was about who had the 00:04:55.160 --> 00:04:58.560 deepest pockets to bribe state legislators. The 00:04:58.560 --> 00:05:00.939 sources highlight a glaring example of this with 00:05:00.939 --> 00:05:04.000 William A. Clark. In 1900, he actually had to 00:05:04.000 --> 00:05:06.319 resign from the Senate after an investigative 00:05:06.319 --> 00:05:09.199 committee concluded he had flat out bought votes 00:05:09.199 --> 00:05:11.660 in the Montana legislature to secure his seat. 00:05:11.800 --> 00:05:14.420 Yeah, the Clark case was huge. It feels like 00:05:14.420 --> 00:05:16.980 the definition of a smoke -filled backroom deal. 00:05:17.399 --> 00:05:20.060 And beyond the sheer corruption, the structural 00:05:20.060 --> 00:05:23.279 mechanics were failing, too. Because the two 00:05:23.279 --> 00:05:25.660 chambers of a state legislature had to agree 00:05:25.660 --> 00:05:28.259 on who to appoint to the U .S. Senate, sometimes 00:05:28.259 --> 00:05:30.620 they simply couldn't reach a consensus. They'd 00:05:30.620 --> 00:05:32.899 just deadlock. Right. And these deadlocks weren't 00:05:32.899 --> 00:05:35.040 just a minor delay. They caused constitutional 00:05:35.040 --> 00:05:38.089 crises at the state level. Delaware, for instance, 00:05:38.310 --> 00:05:41.709 had an empty Senate seat for four solid years. 00:05:41.769 --> 00:05:45.569 Four years. From 1899 to 1903, purely because 00:05:45.569 --> 00:05:47.569 their legislature couldn't agree on a candidate. 00:05:47.730 --> 00:05:50.410 That is wild to me, a state just going unrepresented 00:05:50.410 --> 00:05:53.110 in the Senate for four years. And my favorite 00:05:53.110 --> 00:05:55.189 or maybe the most chaotic example from the text 00:05:55.189 --> 00:05:58.870 is Oregon in 1897. Oh, the quorum freeze. Yeah. 00:05:59.230 --> 00:06:01.750 A full third of the Oregon House of Representatives 00:06:01.750 --> 00:06:04.769 refused to even swear their oath of office just 00:06:04.769 --> 00:06:07.430 to avoid a dispute over an open Senate seat. 00:06:07.529 --> 00:06:09.829 Which is just incredible. By refusing to swear 00:06:09.829 --> 00:06:12.449 in, they denied a quorum which completely froze 00:06:12.449 --> 00:06:15.129 all state legislation for the entire year. The 00:06:15.129 --> 00:06:17.009 entire state government essentially shut down 00:06:17.009 --> 00:06:19.649 over a federal Senate fight. And this disruption 00:06:19.649 --> 00:06:23.339 completely warped local politics. Senate races 00:06:23.339 --> 00:06:26.339 became the single vital issue in all state legislative 00:06:26.339 --> 00:06:29.079 campaigns. So local issues just got ignored. 00:06:29.459 --> 00:06:32.439 Completely. Voters began ignoring the actual 00:06:32.439 --> 00:06:35.240 local policy stances of their state representatives, 00:06:35.439 --> 00:06:37.980 things like schools or roads, because the only 00:06:37.980 --> 00:06:39.560 thing that mattered was who that representative 00:06:39.560 --> 00:06:42.160 would send to the U .S. Senate. Right. The temperature 00:06:42.160 --> 00:06:45.060 got so high that William Randolph Hearst, the 00:06:45.060 --> 00:06:47.420 famous newspaper publisher, ran an explosive 00:06:47.420 --> 00:06:50.259 series of muckraking articles in his Cosmopolitan 00:06:50.259 --> 00:06:53.339 magazine in 1906. The treason of the Senate. 00:06:53.459 --> 00:06:56.259 Yes, the one. Hearst used incredibly flamboyant 00:06:56.259 --> 00:06:58.980 language, calling out senators as a scurvy lot 00:06:58.980 --> 00:07:01.660 who controlled the chamber by theft, perjury 00:07:01.660 --> 00:07:03.980 and bribes. Scurvy lot. Yeah. It whipped the 00:07:03.980 --> 00:07:06.100 public into an absolute frenzy against the establishment. 00:07:06.300 --> 00:07:08.259 Now, it's important as we look at these historical 00:07:08.259 --> 00:07:11.560 sources to recognize our job isn't to pick a 00:07:11.560 --> 00:07:14.240 side or declare whether the progressive reformers 00:07:14.240 --> 00:07:16.420 or the conservative constitutional scholars were 00:07:16.420 --> 00:07:19.000 right. Right. We're just analyzing the material. 00:07:19.529 --> 00:07:22.230 Exactly. We're just the messengers pulling these 00:07:22.230 --> 00:07:25.009 arguments apart. So you, the listener, get the 00:07:25.009 --> 00:07:30.250 full 360 degree view. So stepping into the shoes 00:07:30.250 --> 00:07:34.189 of those conservative analysts, how do they view 00:07:34.189 --> 00:07:38.680 this era of supposed massive corruption? Conservative 00:07:38.680 --> 00:07:41.240 constitutional analysts like Jay Bybee and Todd 00:07:41.240 --> 00:07:43.759 Zwicky raise a very compelling counter perspective. 00:07:44.300 --> 00:07:46.860 They ask whether the panic was actually justified 00:07:46.860 --> 00:07:49.199 by the data. And what does the data say? Well, 00:07:49.259 --> 00:07:51.060 they point out that in over a century of state 00:07:51.060 --> 00:07:53.399 legislatures electing U .S. senators, there are 00:07:53.399 --> 00:07:56.100 only 10 contested cases of impropriety. Wait, 00:07:56.160 --> 00:07:59.259 only 10? 10 cases in over 100 years. That definitely 00:07:59.259 --> 00:08:00.839 paints a different picture than Hearst's magazine 00:08:00.839 --> 00:08:03.199 articles. What about the deadlocks that shut 00:08:03.199 --> 00:08:05.519 down state governments? Ziewicki argues those 00:08:05.519 --> 00:08:07.860 deadlocks were mostly happening in newly admitted 00:08:07.860 --> 00:08:10.540 Western states that simply had inexperienced 00:08:10.540 --> 00:08:12.819 legislatures and weak party discipline. So it 00:08:12.819 --> 00:08:14.759 was just growing pains. Exactly. The sources 00:08:14.759 --> 00:08:17.959 use Utah as an example. Utah deadlocked in 1897 00:08:17.959 --> 00:08:20.660 and 1899, but then they learned from the experience, 00:08:20.879 --> 00:08:23.399 established better internal procedures, and never 00:08:23.399 --> 00:08:25.540 failed to elect a senator again. The conservative 00:08:25.540 --> 00:08:28.019 argument is that this was a temporary, localized 00:08:28.019 --> 00:08:31.620 problem, not a systemic failure requiring a permanent 00:08:31.620 --> 00:08:34.139 constitutional amendment. Regardless of whether 00:08:34.139 --> 00:08:36.200 the panic was statistically justified by the 00:08:36.200 --> 00:08:38.539 numbers, the public perception was locked in. 00:08:39.049 --> 00:08:40.950 The people felt the Senate was an aristocratic 00:08:40.950 --> 00:08:43.730 body, completely out of touch with the welfare 00:08:43.730 --> 00:08:46.090 of the average citizen. Perception becomes reality 00:08:46.090 --> 00:08:49.970 in politics. True. So how did the public actually 00:08:49.970 --> 00:08:52.509 force the government's hand? If the Senate was 00:08:52.509 --> 00:08:55.289 a cozy club of elite ambassadors, I imagine they 00:08:55.289 --> 00:08:57.529 weren't eager to change the rules. They absolutely 00:08:57.529 --> 00:09:00.480 weren't. By the 1890s, the Populist Party had 00:09:00.480 --> 00:09:02.519 incorporated the direct election of senators 00:09:02.519 --> 00:09:05.600 into their platform. But the U .S. Senate kept 00:09:05.600 --> 00:09:08.139 blocking any constitutional amendments the House 00:09:08.139 --> 00:09:10.460 tried to pass. So Washington wouldn't act. Right. 00:09:10.539 --> 00:09:13.120 And since Washington wouldn't act, the state 00:09:13.120 --> 00:09:15.179 started getting incredibly creative at the grassroots 00:09:15.179 --> 00:09:19.320 level. In 1908, Oregon basically hacked the system. 00:09:19.440 --> 00:09:21.600 I love this part of the research. Walk us through 00:09:21.600 --> 00:09:24.259 the mechanics of how a state hacks the U .S. 00:09:24.279 --> 00:09:27.509 Constitution. So Oregon passed a law. creating 00:09:27.509 --> 00:09:30.509 advisory popular votes. The public would vote 00:09:30.509 --> 00:09:33.070 on U .S. Senate candidates in a primary election. 00:09:33.250 --> 00:09:36.269 OK. Then the state legislative candidates would 00:09:36.269 --> 00:09:38.509 pledge in advance to simply appoint whoever won 00:09:38.509 --> 00:09:41.289 that popular vote, regardless of their own personal 00:09:41.289 --> 00:09:44.129 or party preference. Wow. It functioned as a 00:09:44.129 --> 00:09:47.149 de facto general election. Exactly. Nebraska 00:09:47.149 --> 00:09:50.870 quickly followed suit. Soon, over half the states 00:09:50.870 --> 00:09:53.850 had some form of primary selection, effectively 00:09:53.850 --> 00:09:56.389 forcing the hands of the state legislatures through 00:09:56.389 --> 00:09:58.549 intense public pressure. That is brilliant. By 00:09:58.549 --> 00:10:00.929 1910, the dynamic in the Senate had completely 00:10:00.929 --> 00:10:04.309 shifted. 14 of the 30 newly elected senators 00:10:04.309 --> 00:10:06.669 that year had been chosen through these primary 00:10:06.669 --> 00:10:09.230 systems. They were essentially popularly elected 00:10:09.230 --> 00:10:11.250 and they arrived in Washington with a mandate 00:10:11.250 --> 00:10:13.600 for reform. Here's where it gets really interesting, 00:10:13.679 --> 00:10:15.559 though. Pushing an amendment through Congress 00:10:15.559 --> 00:10:18.120 is never just a straightforward, noble process. 00:10:18.360 --> 00:10:21.340 Really is. It's always a messy political negotiation. 00:10:21.779 --> 00:10:24.179 When the House of Representatives finally passed 00:10:24.179 --> 00:10:27.080 their resolution in 1911 to propose the constitutional 00:10:27.080 --> 00:10:29.620 amendment, they included something called a race 00:10:29.620 --> 00:10:32.019 writer clause. What was the purpose of that? 00:10:32.200 --> 00:10:35.879 This is a critical and very dark piece of the 00:10:35.879 --> 00:10:38.480 amendment's history. Under the original Constitution, 00:10:38.980 --> 00:10:41.740 Congress has the power to override state laws 00:10:41.740 --> 00:10:44.700 regarding the manner of federal elections. The 00:10:44.700 --> 00:10:47.980 1911 House resolution included a rider clause 00:10:47.980 --> 00:10:50.639 that would have specifically handed total control 00:10:50.639 --> 00:10:53.919 of senatorial elections back to the states, permanently 00:10:53.919 --> 00:10:56.179 stripping Congress of its federal oversight power. 00:10:56.559 --> 00:10:58.940 And the sources make the reason for this maneuver 00:10:58.940 --> 00:11:01.940 incredibly clear. Since the 1890s, southern states 00:11:01.940 --> 00:11:04.759 had been passing new state constitutions specifically 00:11:04.759 --> 00:11:07.279 designed to disenfranchise millions of black 00:11:07.279 --> 00:11:09.659 Americans as well as many poor whites. Yeah, 00:11:09.679 --> 00:11:11.799 through literacy tests, poll taxes, things like 00:11:11.799 --> 00:11:14.100 that. Exactly. They were using those discriminatory 00:11:14.100 --> 00:11:16.559 practices to create de facto one -party states. 00:11:16.799 --> 00:11:19.039 The race rider was designed to protect those 00:11:19.039 --> 00:11:21.360 southern states from any potential federal interference 00:11:21.360 --> 00:11:24.000 in their discriminatory voting practices. It 00:11:24.000 --> 00:11:26.039 was a horrific political bargain being proposed 00:11:26.039 --> 00:11:28.240 on the floor of Congress. They were essentially 00:11:28.240 --> 00:11:31.080 offering to give the people the right to directly 00:11:31.080 --> 00:11:33.679 vote for senators while simultaneously ensuring 00:11:33.679 --> 00:11:36.820 that millions of specific people would be legally 00:11:36.820 --> 00:11:39.519 excluded from that right without any possibility 00:11:39.519 --> 00:11:42.399 of federal recourse. How was that tension resolved? 00:11:42.620 --> 00:11:45.419 Did the Senate just accept the writer? No. When 00:11:45.419 --> 00:11:47.600 the resolution hit the Senate, Senator Joseph 00:11:47.600 --> 00:11:50.379 L. Bristow from Kansas proposed an amendment 00:11:50.379 --> 00:11:53.080 to kill that race writer clause and maintain 00:11:53.080 --> 00:11:55.620 federal oversight. Okay, so he pushed back. He 00:11:55.620 --> 00:11:57.940 did. And the tension in the chamber must have 00:11:57.940 --> 00:12:01.440 been unbelievable. The vote to strip the racist 00:12:01.440 --> 00:12:03.700 clause from the amendment resulted in a dead 00:12:03.700 --> 00:12:08.240 tie. 44 to 44. A literal tie. A dead tie. Vice 00:12:08.240 --> 00:12:10.500 President James S. Sherman had to step in and 00:12:10.500 --> 00:12:13.179 cast a rare tie -breaking vote to approve Bristow's 00:12:13.179 --> 00:12:15.929 change. Wow. The final amended resolution then 00:12:15.929 --> 00:12:18.889 passed Congress, and the 17th Amendment was ratified 00:12:18.889 --> 00:12:22.570 by the states on April 8, 1913. So barely squeaked 00:12:22.570 --> 00:12:25.110 by in its final form. And if we connect this 00:12:25.110 --> 00:12:28.309 to the bigger picture, the unintended consequences 00:12:28.309 --> 00:12:33.409 of that ratification on April 8, 1913 fundamentally 00:12:33.409 --> 00:12:36.230 rewired the American government. Let's look at 00:12:36.230 --> 00:12:40.230 that massive shift in power. Before 1913, The 00:12:40.230 --> 00:12:42.669 states had a structural defense mechanism against 00:12:42.669 --> 00:12:45.110 the federal government. If Washington tried to 00:12:45.110 --> 00:12:48.049 pass a law that overreached into state sovereignty, 00:12:48.370 --> 00:12:50.370 the state legislatures would just tell their 00:12:50.370 --> 00:12:52.750 senators to vote it down. Right. Without that 00:12:52.750 --> 00:12:55.409 check, what happened? Once senators were directly 00:12:55.409 --> 00:12:57.769 elected by the public, they no longer answered 00:12:57.769 --> 00:13:00.240 to the state legislature at all. they were free 00:13:00.240 --> 00:13:02.639 to ignore the state government's specific institutional 00:13:02.639 --> 00:13:05.220 interests. Which changes everything. According 00:13:05.220 --> 00:13:07.399 to the constitutional analyses in our sources, 00:13:07.659 --> 00:13:10.340 this lack of a state -based check on Congress 00:13:10.340 --> 00:13:12.720 paved the way for the massive expansion of the 00:13:12.720 --> 00:13:14.860 federal government during the progressive era 00:13:14.860 --> 00:13:16.740 and the New Deal. Because there was no one left 00:13:16.740 --> 00:13:19.960 to say no on behalf of the states. Exactly. senators 00:13:19.960 --> 00:13:22.299 no longer felt compelled to protect local state 00:13:22.299 --> 00:13:25.139 interests, like a local coal industry or specific 00:13:25.139 --> 00:13:28.580 agricultural sectors, if a popular federal program 00:13:28.580 --> 00:13:30.500 was on the table that appealed to the broader 00:13:30.500 --> 00:13:33.879 voting public. It also completely changed the 00:13:33.879 --> 00:13:36.139 trajectory of the Supreme Court, didn't it? It 00:13:36.139 --> 00:13:40.360 did. The Senate has the advice and consent power, 00:13:40.580 --> 00:13:43.299 meaning they are the ultimate gatekeepers who 00:13:43.299 --> 00:13:46.399 confirm or reject the president's judicial nominees. 00:13:46.419 --> 00:13:49.580 Right. Once senators were no longer acting as 00:13:49.580 --> 00:13:52.340 ambassadors for state sovereignty, they had an 00:13:52.340 --> 00:13:55.159 incentive to confirm Supreme Court justices who 00:13:55.159 --> 00:13:57.600 were inclined to increase federal power at the 00:13:57.600 --> 00:14:01.269 expense of the states. Over the first half of 00:14:01.269 --> 00:14:03.850 the 20th century, the court began applying the 00:14:03.850 --> 00:14:06.169 Bill of Rights to the states, overturning state 00:14:06.169 --> 00:14:08.570 laws whenever they harmed individual citizens. 00:14:09.049 --> 00:14:11.710 This is a profound shift from the original system, 00:14:11.809 --> 00:14:14.429 where state laws were much more insulated from 00:14:14.429 --> 00:14:16.570 federal judicial review. I want to talk about 00:14:16.570 --> 00:14:18.610 the swamp effect because there's a fascinating 00:14:18.610 --> 00:14:21.110 irony here. We mentioned earlier that one of 00:14:21.110 --> 00:14:23.490 the big arguments for the amendment was to stop 00:14:23.490 --> 00:14:25.490 special interests from buying Senate seats in 00:14:25.490 --> 00:14:27.889 state capitals. But the sources point out that 00:14:27.889 --> 00:14:29.649 by centralizing power in the federal government, 00:14:29.639 --> 00:14:31.659 government, the 17th Amendment actually made 00:14:31.659 --> 00:14:33.860 special interest lobbying much more efficient. 00:14:34.039 --> 00:14:37.539 It really did. Think about how much money massive 00:14:37.539 --> 00:14:40.000 tech companies or pharmaceutical lobbies spend 00:14:40.000 --> 00:14:43.159 in Washington today. Billions. Right. Before 00:14:43.159 --> 00:14:45.620 the 17th Amendment, a lobbyist would have to 00:14:45.620 --> 00:14:48.320 spend resources traveling to and buying influence 00:14:48.320 --> 00:14:51.059 in... dozens of different state capitals all 00:14:51.059 --> 00:14:53.399 across the country to influence the Senate. That 00:14:53.399 --> 00:14:56.299 sounds exhausting. By centralizing the vote and 00:14:56.299 --> 00:14:58.480 removing the state legislatures from the equation, 00:14:58.740 --> 00:15:02.000 we inadvertently created a one -stop shop for 00:15:02.000 --> 00:15:04.700 special interest money. Massive interest groups 00:15:04.700 --> 00:15:06.899 realized they could just consolidate all their 00:15:06.899 --> 00:15:09.360 money and pressure directly in Washington, D 00:15:09.360 --> 00:15:12.080 .C. And Judge Jay Bybee's analysis goes even 00:15:12.080 --> 00:15:14.840 further, looking at how direct elections completely 00:15:14.840 --> 00:15:17.740 change the partisan makeup of the country. This 00:15:17.740 --> 00:15:19.580 is a really interesting theory. He brings up 00:15:19.580 --> 00:15:22.059 the concept of malapportioned districts. For 00:15:22.059 --> 00:15:24.299 anyone who hasn't heard that term before the 00:15:24.299 --> 00:15:28.120 1960s, state legislatures were notoriously unbalanced. 00:15:28.379 --> 00:15:31.159 You'd have large rural areas given equal weight 00:15:31.159 --> 00:15:34.039 to densely populated cities, meaning one rural 00:15:34.039 --> 00:15:36.159 vote could essentially have the same power as 00:15:36.159 --> 00:15:38.519 200 city votes. Right. The representation was 00:15:38.519 --> 00:15:41.080 totally skewed. Yeah. Ivey argues that those 00:15:41.080 --> 00:15:44.059 malapportioned, heavily rural state legislatures 00:15:44.059 --> 00:15:47.440 naturally leaned Republican. He points out a 00:15:47.440 --> 00:15:50.700 wild alternate history. If the 17th Amendment 00:15:50.700 --> 00:15:53.259 hadn't passed, those rural state legislatures 00:15:53.259 --> 00:15:55.360 would have handed the U .S. Senate to the Republicans 00:15:55.360 --> 00:15:59.039 in the 1916 elections. But they didn't. No. Because 00:15:59.039 --> 00:16:02.179 of direct popular elections, where every citizen's 00:16:02.179 --> 00:16:04.820 vote counted equally statewide, regardless of 00:16:04.820 --> 00:16:07.480 whether they lived in a city or a farm, the Democrats 00:16:07.480 --> 00:16:09.480 were able to pick up new seats in places like 00:16:09.480 --> 00:16:12.600 New Mexico, Utah, and Wyoming. That direct vote 00:16:12.600 --> 00:16:14.659 allowed them to retain control of the Senate. 00:16:14.960 --> 00:16:17.700 He also notes it works both ways. Bybee argues 00:16:17.700 --> 00:16:20.840 the famous Republican Revolution of 1994, where 00:16:20.840 --> 00:16:23.519 the GOP took massive control of Congress, simply 00:16:23.519 --> 00:16:25.320 wouldn't have happened without the direct election 00:16:25.320 --> 00:16:27.580 of senators. That's right. If state legislatures 00:16:27.580 --> 00:16:30.840 were still in charge back in 1994, Bybee estimates 00:16:30.840 --> 00:16:32.960 the Democrats would have controlled a staggering 00:16:32.960 --> 00:16:35.860 70 seats in the Senate to the Republicans 30. 00:16:36.299 --> 00:16:39.320 The entire political landscape of the 20th century 00:16:39.320 --> 00:16:42.240 was dictated by this one procedural change in 00:16:42.240 --> 00:16:44.879 how we vote. Which brings us to a reality that 00:16:44.879 --> 00:16:47.820 might surprise a lot of people. The debate over 00:16:47.820 --> 00:16:51.120 the 17th Amendment is not entirely dead. There 00:16:51.120 --> 00:16:53.720 is a modern vocal movement pushing to repeal 00:16:53.720 --> 00:16:56.220 it. Where is this modern friction coming from? 00:16:56.279 --> 00:17:00.240 Is it just about partisan power grabs? Part of 00:17:00.240 --> 00:17:03.200 it stems from a specific loophole written directly 00:17:03.200 --> 00:17:06.380 into the 17th Amendment, the power to fill vacancies. 00:17:07.000 --> 00:17:09.319 The amendment dictates that if a senator leads 00:17:09.319 --> 00:17:11.880 office early, The state's governor can be empowered 00:17:11.880 --> 00:17:14.279 to make a temporary appointment until a special 00:17:14.279 --> 00:17:16.759 election is held. Oh, I remember this. Yeah, 00:17:16.779 --> 00:17:18.779 this became a massive controversy at the beginning 00:17:18.779 --> 00:17:21.940 of the Obama administration in 2009. Four sitting 00:17:21.940 --> 00:17:24.299 Democratic senators left their seats to join 00:17:24.299 --> 00:17:27.160 the executive branch. Barack Obama himself, Joe 00:17:27.160 --> 00:17:29.609 Biden, Hillary Clinton and Ken Salazar. This 00:17:29.609 --> 00:17:31.950 left governors to fill those seats single -handedly, 00:17:32.069 --> 00:17:34.670 which resulted in some major national scandals. 00:17:34.769 --> 00:17:37.569 We saw this most notably with Governor Rod Blagojevich 00:17:37.569 --> 00:17:40.009 in Illinois and Governor David Patterson in New 00:17:40.009 --> 00:17:43.009 York. The fallout was intense. The public perception 00:17:43.009 --> 00:17:45.549 of governors trading Senate seats for political 00:17:45.549 --> 00:17:48.750 favors or personal gain brought back all those 00:17:48.750 --> 00:17:52.230 19th century anxieties about corruption. It led 00:17:52.230 --> 00:17:54.950 senators like Russ Fangold to actually propose 00:17:54.950 --> 00:17:57.809 a new constitutional amendment to strip governors 00:17:57.809 --> 00:18:00.789 of this appointment power entirely. And the debate 00:18:00.789 --> 00:18:03.849 goes beyond just fixing the vacancy loophole. 00:18:04.150 --> 00:18:07.220 And just to reiterate. As we look at the broader 00:18:07.220 --> 00:18:10.359 modern push to repeal this amendment, we're simply 00:18:10.359 --> 00:18:12.619 reporting the views laid out in the research. 00:18:12.920 --> 00:18:15.519 We aren't endorsing the massive expansion of 00:18:15.519 --> 00:18:17.579 federal power we discussed during the progressive 00:18:17.579 --> 00:18:20.599 era, nor are we endorsing the conservative movements 00:18:20.599 --> 00:18:22.779 we're about to cover. Right. Our goal is strictly 00:18:22.779 --> 00:18:25.359 impartial analysis. We just want you to see the 00:18:25.359 --> 00:18:27.660 entire landscape of the debate. So beyond just 00:18:27.660 --> 00:18:30.220 fixing the vacancy loophole, who is pushing to 00:18:30.220 --> 00:18:33.039 repeal the 17th Amendment completely? Over the 00:18:33.039 --> 00:18:35.480 last decade or so. Elements of the Tea Party 00:18:35.480 --> 00:18:37.880 movement began arguing that repealing the amendment 00:18:37.880 --> 00:18:40.859 is the only way to truly restore the 10th Amendment, 00:18:41.019 --> 00:18:43.940 which reserves powers to the states, and to rein 00:18:43.940 --> 00:18:45.819 in the massive power of the federal government. 00:18:45.980 --> 00:18:48.420 So it's a structural argument for them. Yes. 00:18:48.539 --> 00:18:50.420 And this isn't just internet chatter either. 00:18:50.680 --> 00:18:53.819 In 2016, the Utah legislature officially passed 00:18:53.819 --> 00:18:56.859 a resolution asking Congress to offer an amendment 00:18:56.859 --> 00:18:59.720 to the U .S. Constitution to repeal the 17th. 00:19:00.009 --> 00:19:02.509 We've also seen prominent political figures voice 00:19:02.509 --> 00:19:06.329 support for this. In 2017, former Arkansas Governor 00:19:06.329 --> 00:19:09.569 Mike Huckabee publicly endorsed the repeal. He 00:19:09.569 --> 00:19:12.549 did. He argued that if state legislatures chose 00:19:12.549 --> 00:19:15.009 senators, those senators would actually work 00:19:15.009 --> 00:19:17.069 for their states and respect the 10th Amendment. 00:19:17.610 --> 00:19:20.210 He literally called the direct election of senators 00:19:20.210 --> 00:19:23.150 a major cause of the Washington swamp. And as 00:19:23.150 --> 00:19:26.170 recently as September 2020, Senator Ben Sasses 00:19:26.170 --> 00:19:28.190 of Nebraska wrote an opinion piece in The Wall 00:19:28.190 --> 00:19:30.630 Street Journal officially calling for the repeal 00:19:30.630 --> 00:19:33.130 of the 17th Amendment. His argument centered 00:19:33.130 --> 00:19:35.109 on a return to the founders' original design 00:19:35.109 --> 00:19:37.690 as a way to reduce the partisan temperature and 00:19:37.690 --> 00:19:40.230 gridlock in Washington. So what does this all 00:19:40.230 --> 00:19:42.289 mean? We started this deep dive talking about 00:19:42.289 --> 00:19:44.349 a time when you wouldn't have a direct say in 00:19:44.349 --> 00:19:46.880 who goes to the U .S. Senate. What we've uncovered 00:19:46.880 --> 00:19:49.660 is how a shift in the mechanics of voting, moving 00:19:49.660 --> 00:19:52.259 a decision from a statehouse backroom to a public 00:19:52.259 --> 00:19:55.200 ballot, didn't just change who got elected. It 00:19:55.200 --> 00:19:57.960 shifted the entire trajectory of American federalism. 00:19:58.039 --> 00:20:00.299 Truly altered the course of history. It altered 00:20:00.299 --> 00:20:02.279 the size of the national government, changed 00:20:02.279 --> 00:20:04.779 the nature of the Supreme Court, and relocated 00:20:04.779 --> 00:20:06.559 the center of gravity for special interests. 00:20:06.900 --> 00:20:09.539 It's a powerful reminder that in constitutional 00:20:09.539 --> 00:20:13.859 law, process is policy. The way we choose our 00:20:13.859 --> 00:20:16.259 leaders dictates the kind of government those 00:20:16.259 --> 00:20:18.440 leaders will build. I want to leave you with 00:20:18.440 --> 00:20:21.079 a final provocative thought to mull over. Our 00:20:21.079 --> 00:20:24.180 sources noted that before 1913, voters essentially 00:20:24.180 --> 00:20:27.400 proxy voted for U .S. senators by carefully picking 00:20:27.400 --> 00:20:29.240 their state legislators. Right. That was their 00:20:29.240 --> 00:20:31.859 only leverage. But once that changed, citizens 00:20:31.859 --> 00:20:34.599 couldn't monitor their U .S. senators as closely, 00:20:34.779 --> 00:20:37.460 which inadvertently empowered federal lobbyists. 00:20:37.619 --> 00:20:40.549 I want you to imagine. If you had to vote for 00:20:40.549 --> 00:20:43.069 your state legislators today, knowing that those 00:20:43.069 --> 00:20:45.569 local politicians would be the ones choosing 00:20:45.569 --> 00:20:48.329 your US senators, how would that change the way 00:20:48.329 --> 00:20:51.029 you research local candidates? It's a huge shift 00:20:51.029 --> 00:20:53.549 in perspective. Would those local state -level 00:20:53.549 --> 00:20:56.170 elections suddenly become the absolute most important 00:20:56.170 --> 00:20:59.109 events on your calendar? It completely changes 00:20:59.109 --> 00:21:02.130 the weight of local politics. Thank you for joining 00:21:02.130 --> 00:21:04.250 us on this deep dive into the source material. 00:21:04.549 --> 00:21:06.910 Keep questioning the structures around you, keep 00:21:06.910 --> 00:21:08.950 looking closely at the history of how we got 00:21:08.950 --> 00:21:11.509 here, and we will catch you next time.