What if right now, as you're listening to this,
you had absolutely no say in who your state's
U .S. senators were? None at all. Right. Imagine
just showing up to the ballot box on Election
Day and the names of the people who will represent
your state in the highest levels of the federal
government simply aren't there. It's hard to
even picture today. It really is. But for the
first century of American history, that wasn't
some hypothetical scenario. That was just. The
law of the land. Yeah, a completely different
system. Welcome to this dump dive into the source
material. Today, we're looking at the 17th Amendment
to the United States Constitution. We've got
a stack of really fascinating sources in front
of us. We do, yeah. Historical texts, deep constitutional
analyses, and some extensive Wikipedia excerpts.
And our mission for this deep dive is to uncover
how a single, you know, seemingly procedural
change to the Constitution radically altered
the balance of power in America. It completely
shifted the influence of special interests, too.
Exactly. And we'll also look at why some modern
politicians are actively trying to repeal it.
So, OK, let's unpack this, because this is one
of those topics that sounds like a dry civics
lesson on the surface. But it's actually filled
with bribery, political gridlock and massive
unintended consequences. No, totally. I mean,
I always just assumed we voted for our senators.
How did this original architecture actually work
on Election Day? Well, what's fascinating here
is how this single amendment fundamentally redefined
the relationship between the people and the states.
Right. When we look at the original design of
the Constitution, the framers had a very specific,
carefully balanced architecture in mind. Before
1913, under Article I, Section 3, state legislatures
picked U .S. senators for six -year terms. Not
the voters. Right. Not the voters. The framers
didn't view the people and the states as the
exact same political entity. That seems like
such a foreign concept to how we view democracy
today. Why did they separate those two concepts?
We have to look back to the Connecticut Compromise
during the Constitutional Convention. The founders
were trying to forge a new nation from separate,
distinct states. And the anti -federalists, they
were terrified that this new, powerful federal
government would eventually swallow the states
whole. Like they'd just lose their individual
sovereignty. Exactly. So the compromise was to
balance representation by population. in the
House of Representatives with equal representation
for the states themselves in the Senate. Ah,
I see. The House, with their short two -year
terms, was supposed to be the direct voice of
the people. But the Senate was designed as a
direct mechanism to protect state sovereignty.
It was a counter to populism. So by having state
legislatures elect senators, the states essentially
had their own defensive shield against federal
ovaries. Precisely. It was actually meant to
be somewhat parallel to the British House of
Lords. Really? Yeah. The underlying philosophy
of the era was that the, quote, better men of
society would be chosen by the upper houses of
state legislatures. The goal was to provide stable,
insulated deliberation. Because they didn't have
to worry about getting reelected by the masses.
Right. Because these senators weren't accountable
to the daily whims of the voting public, they
could afford to take a more detached, long -term
view of the issues coming before Congress. I
mean, that sounds incredibly elitist by... today's
standards. Did they really just trust state politicians
to pick the best guys behind closed doors? They
really did. Was anyone at the time pushing back
on this? Well, the sources revealed just how
uncontroversial this elitist design was at the
time. There was only one single delegate at the
Constitutional Convention who advocated for electing
senators by popular vote. Just one? Just one.
His name was James Wilson. He pitched the idea
of the people directly electing senators and
his proposal was utterly crushed in a vote of
10 to 1. Ten to one. The consensus of the era
was firmly against direct democracy for the Senate.
In fact, state legislatures even retained the
theoretical right to instruct their senators
on how to vote on specific federal bills. I want
you, the listener, to really imagine that for
a second. Imagine your current state legislature,
the folks meeting in your state capitol right
now, having the power to act like puppeteers.
Yeah. Directly instructing your U .S. senators
how to vote in Washington. The senators were
basically acting as ambassadors for the state
government. That's a great way to put it. Ambassadors.
It's just a completely different way of viewing
federalism. But, of course, any system made by
humans is going to develop some serious bugs.
Oh, absolutely. How did this... perfectly balanced
system start to break down. The system eventually
began to crack under the weight of severe legislative
corruption and electoral deadlocks. By the late
19th century, there was a growing public sentiment
that Senate seats were literally being bought
and sold. Just straight up cash for seats. Pretty
much. It often wasn't about the competence of
the candidate anymore. It was about who had the
deepest pockets to bribe state legislators. The
sources highlight a glaring example of this with
William A. Clark. In 1900, he actually had to
resign from the Senate after an investigative
committee concluded he had flat out bought votes
in the Montana legislature to secure his seat.
Yeah, the Clark case was huge. It feels like
the definition of a smoke -filled backroom deal.
And beyond the sheer corruption, the structural
mechanics were failing, too. Because the two
chambers of a state legislature had to agree
on who to appoint to the U .S. Senate, sometimes
they simply couldn't reach a consensus. They'd
just deadlock. Right. And these deadlocks weren't
just a minor delay. They caused constitutional
crises at the state level. Delaware, for instance,
had an empty Senate seat for four solid years.
Four years. From 1899 to 1903, purely because
their legislature couldn't agree on a candidate.
That is wild to me, a state just going unrepresented
in the Senate for four years. And my favorite
or maybe the most chaotic example from the text
is Oregon in 1897. Oh, the quorum freeze. Yeah.
A full third of the Oregon House of Representatives
refused to even swear their oath of office just
to avoid a dispute over an open Senate seat.
Which is just incredible. By refusing to swear
in, they denied a quorum which completely froze
all state legislation for the entire year. The
entire state government essentially shut down
over a federal Senate fight. And this disruption
completely warped local politics. Senate races
became the single vital issue in all state legislative
campaigns. So local issues just got ignored.
Completely. Voters began ignoring the actual
local policy stances of their state representatives,
things like schools or roads, because the only
thing that mattered was who that representative
would send to the U .S. Senate. Right. The temperature
got so high that William Randolph Hearst, the
famous newspaper publisher, ran an explosive
series of muckraking articles in his Cosmopolitan
magazine in 1906. The treason of the Senate.
Yes, the one. Hearst used incredibly flamboyant
language, calling out senators as a scurvy lot
who controlled the chamber by theft, perjury
and bribes. Scurvy lot. Yeah. It whipped the
public into an absolute frenzy against the establishment.
Now, it's important as we look at these historical
sources to recognize our job isn't to pick a
side or declare whether the progressive reformers
or the conservative constitutional scholars were
right. Right. We're just analyzing the material.
Exactly. We're just the messengers pulling these
arguments apart. So you, the listener, get the
full 360 degree view. So stepping into the shoes
of those conservative analysts, how do they view
this era of supposed massive corruption? Conservative
constitutional analysts like Jay Bybee and Todd
Zwicky raise a very compelling counter perspective.
They ask whether the panic was actually justified
by the data. And what does the data say? Well,
they point out that in over a century of state
legislatures electing U .S. senators, there are
only 10 contested cases of impropriety. Wait,
only 10? 10 cases in over 100 years. That definitely
paints a different picture than Hearst's magazine
articles. What about the deadlocks that shut
down state governments? Ziewicki argues those
deadlocks were mostly happening in newly admitted
Western states that simply had inexperienced
legislatures and weak party discipline. So it
was just growing pains. Exactly. The sources
use Utah as an example. Utah deadlocked in 1897
and 1899, but then they learned from the experience,
established better internal procedures, and never
failed to elect a senator again. The conservative
argument is that this was a temporary, localized
problem, not a systemic failure requiring a permanent
constitutional amendment. Regardless of whether
the panic was statistically justified by the
numbers, the public perception was locked in.
The people felt the Senate was an aristocratic
body, completely out of touch with the welfare
of the average citizen. Perception becomes reality
in politics. True. So how did the public actually
force the government's hand? If the Senate was
a cozy club of elite ambassadors, I imagine they
weren't eager to change the rules. They absolutely
weren't. By the 1890s, the Populist Party had
incorporated the direct election of senators
into their platform. But the U .S. Senate kept
blocking any constitutional amendments the House
tried to pass. So Washington wouldn't act. Right.
And since Washington wouldn't act, the state
started getting incredibly creative at the grassroots
level. In 1908, Oregon basically hacked the system.
I love this part of the research. Walk us through
the mechanics of how a state hacks the U .S.
Constitution. So Oregon passed a law. creating
advisory popular votes. The public would vote
on U .S. Senate candidates in a primary election.
OK. Then the state legislative candidates would
pledge in advance to simply appoint whoever won
that popular vote, regardless of their own personal
or party preference. Wow. It functioned as a
de facto general election. Exactly. Nebraska
quickly followed suit. Soon, over half the states
had some form of primary selection, effectively
forcing the hands of the state legislatures through
intense public pressure. That is brilliant. By
1910, the dynamic in the Senate had completely
shifted. 14 of the 30 newly elected senators
that year had been chosen through these primary
systems. They were essentially popularly elected
and they arrived in Washington with a mandate
for reform. Here's where it gets really interesting,
though. Pushing an amendment through Congress
is never just a straightforward, noble process.
Really is. It's always a messy political negotiation.
When the House of Representatives finally passed
their resolution in 1911 to propose the constitutional
amendment, they included something called a race
writer clause. What was the purpose of that?
This is a critical and very dark piece of the
amendment's history. Under the original Constitution,
Congress has the power to override state laws
regarding the manner of federal elections. The
1911 House resolution included a rider clause
that would have specifically handed total control
of senatorial elections back to the states, permanently
stripping Congress of its federal oversight power.
And the sources make the reason for this maneuver
incredibly clear. Since the 1890s, southern states
had been passing new state constitutions specifically
designed to disenfranchise millions of black
Americans as well as many poor whites. Yeah,
through literacy tests, poll taxes, things like
that. Exactly. They were using those discriminatory
practices to create de facto one -party states.
The race rider was designed to protect those
southern states from any potential federal interference
in their discriminatory voting practices. It
was a horrific political bargain being proposed
on the floor of Congress. They were essentially
offering to give the people the right to directly
vote for senators while simultaneously ensuring
that millions of specific people would be legally
excluded from that right without any possibility
of federal recourse. How was that tension resolved?
Did the Senate just accept the writer? No. When
the resolution hit the Senate, Senator Joseph
L. Bristow from Kansas proposed an amendment
to kill that race writer clause and maintain
federal oversight. Okay, so he pushed back. He
did. And the tension in the chamber must have
been unbelievable. The vote to strip the racist
clause from the amendment resulted in a dead
tie. 44 to 44. A literal tie. A dead tie. Vice
President James S. Sherman had to step in and
cast a rare tie -breaking vote to approve Bristow's
change. Wow. The final amended resolution then
passed Congress, and the 17th Amendment was ratified
by the states on April 8, 1913. So barely squeaked
by in its final form. And if we connect this
to the bigger picture, the unintended consequences
of that ratification on April 8, 1913 fundamentally
rewired the American government. Let's look at
that massive shift in power. Before 1913, The
states had a structural defense mechanism against
the federal government. If Washington tried to
pass a law that overreached into state sovereignty,
the state legislatures would just tell their
senators to vote it down. Right. Without that
check, what happened? Once senators were directly
elected by the public, they no longer answered
to the state legislature at all. they were free
to ignore the state government's specific institutional
interests. Which changes everything. According
to the constitutional analyses in our sources,
this lack of a state -based check on Congress
paved the way for the massive expansion of the
federal government during the progressive era
and the New Deal. Because there was no one left
to say no on behalf of the states. Exactly. senators
no longer felt compelled to protect local state
interests, like a local coal industry or specific
agricultural sectors, if a popular federal program
was on the table that appealed to the broader
voting public. It also completely changed the
trajectory of the Supreme Court, didn't it? It
did. The Senate has the advice and consent power,
meaning they are the ultimate gatekeepers who
confirm or reject the president's judicial nominees.
Right. Once senators were no longer acting as
ambassadors for state sovereignty, they had an
incentive to confirm Supreme Court justices who
were inclined to increase federal power at the
expense of the states. Over the first half of
the 20th century, the court began applying the
Bill of Rights to the states, overturning state
laws whenever they harmed individual citizens.
This is a profound shift from the original system,
where state laws were much more insulated from
federal judicial review. I want to talk about
the swamp effect because there's a fascinating
irony here. We mentioned earlier that one of
the big arguments for the amendment was to stop
special interests from buying Senate seats in
state capitals. But the sources point out that
by centralizing power in the federal government,
government, the 17th Amendment actually made
special interest lobbying much more efficient.
It really did. Think about how much money massive
tech companies or pharmaceutical lobbies spend
in Washington today. Billions. Right. Before
the 17th Amendment, a lobbyist would have to
spend resources traveling to and buying influence
in... dozens of different state capitals all
across the country to influence the Senate. That
sounds exhausting. By centralizing the vote and
removing the state legislatures from the equation,
we inadvertently created a one -stop shop for
special interest money. Massive interest groups
realized they could just consolidate all their
money and pressure directly in Washington, D
.C. And Judge Jay Bybee's analysis goes even
further, looking at how direct elections completely
change the partisan makeup of the country. This
is a really interesting theory. He brings up
the concept of malapportioned districts. For
anyone who hasn't heard that term before the
1960s, state legislatures were notoriously unbalanced.
You'd have large rural areas given equal weight
to densely populated cities, meaning one rural
vote could essentially have the same power as
200 city votes. Right. The representation was
totally skewed. Yeah. Ivey argues that those
malapportioned, heavily rural state legislatures
naturally leaned Republican. He points out a
wild alternate history. If the 17th Amendment
hadn't passed, those rural state legislatures
would have handed the U .S. Senate to the Republicans
in the 1916 elections. But they didn't. No. Because
of direct popular elections, where every citizen's
vote counted equally statewide, regardless of
whether they lived in a city or a farm, the Democrats
were able to pick up new seats in places like
New Mexico, Utah, and Wyoming. That direct vote
allowed them to retain control of the Senate.
He also notes it works both ways. Bybee argues
the famous Republican Revolution of 1994, where
the GOP took massive control of Congress, simply
wouldn't have happened without the direct election
of senators. That's right. If state legislatures
were still in charge back in 1994, Bybee estimates
the Democrats would have controlled a staggering
70 seats in the Senate to the Republicans 30.
The entire political landscape of the 20th century
was dictated by this one procedural change in
how we vote. Which brings us to a reality that
might surprise a lot of people. The debate over
the 17th Amendment is not entirely dead. There
is a modern vocal movement pushing to repeal
it. Where is this modern friction coming from?
Is it just about partisan power grabs? Part of
it stems from a specific loophole written directly
into the 17th Amendment, the power to fill vacancies.
The amendment dictates that if a senator leads
office early, The state's governor can be empowered
to make a temporary appointment until a special
election is held. Oh, I remember this. Yeah,
this became a massive controversy at the beginning
of the Obama administration in 2009. Four sitting
Democratic senators left their seats to join
the executive branch. Barack Obama himself, Joe
Biden, Hillary Clinton and Ken Salazar. This
left governors to fill those seats single -handedly,
which resulted in some major national scandals.
We saw this most notably with Governor Rod Blagojevich
in Illinois and Governor David Patterson in New
York. The fallout was intense. The public perception
of governors trading Senate seats for political
favors or personal gain brought back all those
19th century anxieties about corruption. It led
senators like Russ Fangold to actually propose
a new constitutional amendment to strip governors
of this appointment power entirely. And the debate
goes beyond just fixing the vacancy loophole.
And just to reiterate. As we look at the broader
modern push to repeal this amendment, we're simply
reporting the views laid out in the research.
We aren't endorsing the massive expansion of
federal power we discussed during the progressive
era, nor are we endorsing the conservative movements
we're about to cover. Right. Our goal is strictly
impartial analysis. We just want you to see the
entire landscape of the debate. So beyond just
fixing the vacancy loophole, who is pushing to
repeal the 17th Amendment completely? Over the
last decade or so. Elements of the Tea Party
movement began arguing that repealing the amendment
is the only way to truly restore the 10th Amendment,
which reserves powers to the states, and to rein
in the massive power of the federal government.
So it's a structural argument for them. Yes.
And this isn't just internet chatter either.
In 2016, the Utah legislature officially passed
a resolution asking Congress to offer an amendment
to the U .S. Constitution to repeal the 17th.
We've also seen prominent political figures voice
support for this. In 2017, former Arkansas Governor
Mike Huckabee publicly endorsed the repeal. He
did. He argued that if state legislatures chose
senators, those senators would actually work
for their states and respect the 10th Amendment.
He literally called the direct election of senators
a major cause of the Washington swamp. And as
recently as September 2020, Senator Ben Sasses
of Nebraska wrote an opinion piece in The Wall
Street Journal officially calling for the repeal
of the 17th Amendment. His argument centered
on a return to the founders' original design
as a way to reduce the partisan temperature and
gridlock in Washington. So what does this all
mean? We started this deep dive talking about
a time when you wouldn't have a direct say in
who goes to the U .S. Senate. What we've uncovered
is how a shift in the mechanics of voting, moving
a decision from a statehouse backroom to a public
ballot, didn't just change who got elected. It
shifted the entire trajectory of American federalism.
Truly altered the course of history. It altered
the size of the national government, changed
the nature of the Supreme Court, and relocated
the center of gravity for special interests.
It's a powerful reminder that in constitutional
law, process is policy. The way we choose our
leaders dictates the kind of government those
leaders will build. I want to leave you with
a final provocative thought to mull over. Our
sources noted that before 1913, voters essentially
proxy voted for U .S. senators by carefully picking
their state legislators. Right. That was their
only leverage. But once that changed, citizens
couldn't monitor their U .S. senators as closely,
which inadvertently empowered federal lobbyists.
I want you to imagine. If you had to vote for
your state legislators today, knowing that those
local politicians would be the ones choosing
your US senators, how would that change the way
you research local candidates? It's a huge shift
in perspective. Would those local state -level
elections suddenly become the absolute most important
events on your calendar? It completely changes
the weight of local politics. Thank you for joining
us on this deep dive into the source material.
Keep questioning the structures around you, keep
looking closely at the history of how we got
here, and we will catch you next time.