GOD STOPPED AFTER 10

Democratizing the Constitution: The Failure of the Seventeenth Amendment (C. H.?Hoebeke, Humanitas)

It was with no small sense of vindication that Secretary of State William Jennings Bryan signed the proclamation of 31 May 1913, declaring the Seventeenth Amendment duly ratified and incorporated into the fundamental laws of the United States. More than twenty years earlier as a Nebraska congressman, "The Great Commoner" had joined the struggle to free the Senate from the control of corrupt state legislatures, and despite three failed campaigns for the presidency, he never wavered in his determination to make the Senate a popularly elected?body. Now, after the most protracted political battle in that usually bloodless revolution historians refer to as the Progressive Era, Secretary Bryan put his seal upon the reform that, in the expectations of those who had labored for it, would end the dominance of party "bosses" and the state "machines," stamp out the undue influence of special interests in the Senate, make it more responsive to the will of the people, and of course, eliminate, or greatly reduce, the execrable practice of spending large sums of money to get elected.

As we shall see, even while the amendment was still being considered by the American public, there were ample reasons to doubt its effectiveness and to question the credulity, if not the integrity, of those who proposed it. But more than eight decades after the amendment, the current condition of Senate elections and Senate politics makes the sanguine predictions of 1913 look wholly naive. Progressive Era reformers scandalized by the rare campaign expenditure of a hundred thousand dollars might be shocked senseless to learn that by the 1990s the average cost of a Senate seat would be well over five million dollars, that a candidate would not even approach the threshold of scandal until he had spent fifteen or twenty million?dollars. If there was once cause for concern in the muckraking stories of industrial tycoons and railroad barons buying Senate influence through contributions to the state legislators, then the largess of lobbyists and activists that is today handed openly and directly to Senate candidates (overwhelmingly in favor of incumbents) should be a cause for outright alarm. And if in 1913 the old-time brokers of Senate elections were cleared from their smoke-filled rooms, the current regime of media consultants, professional pollsters, mass-market specialists, and "constituent-minded" software is hardly the victory over political cynicism that Bryan and the Progressives had?envisioned.

In retrospect, the amendment failed to accomplish what was expected of it, and in most cases failed dismally. Exorbitant expenditures, alliances with well-financed lobby groups, and electioneering sleights-of-hand have continued to characterize Senate campaigns long after the constitutional nostrum was implemented. In fact, such tendencies have grown increasingly problematic. Insofar as the Senate also has participated in lavishing vast sums on federal projects of dubious value to the general welfare, and producing encyclopedic volumes of legislation that never will be read or understood by the great mass of Americans, it can hardly be the case that popular elections have strengthened the upper chamber's resistance to the advances of special interests. Ironically, those elections have not even succeeded in improving the Senate's popularity, which, according to one senior member, currently places a senator at about "the level of a used-car?salesman." [...]

The predilection for revoking representative authority and replacing it with more direct means of popular expression might not seem obvious from a cursory glance at the Constitution, which has seen relatively few amendments in the two centuries of its existence. But behind the document's seemingly tranquil history, hundreds of proposals have been made to create more plebiscitary law-making methods, restrict the deliberations of House and Senate, and guarantee rule according to the momentary wishes of the majority in the fundamental law. The Constitution has withstood most such assaults only because of the founders' sagacity in making change difficult, although this feature, too, has often come under the attack of ambitious populists. State constitutions, on the other hand, have proven not nearly as resistant. Subject to alterations at the hands of anonymous pluralities of voters in statewide referenda, expanding by process of accretion into detailed delineations of rules and regulations that make them practically indistinguishable from ordinary codes of statutes, the constitutions of the states more accurately depict America's long-standing distrust of representative bodies.

At the federal level, the Seventeenth Amendment is unique for having been the first and, to date, the only successful incursion of populist reformers against the representative structure instituted by the founding fathers. Of course, encroachments on the established processes have continued in other, more subtle, ways, such as in the increasing reliance on popular-opinion polls in determining the course of national policy, or the tremendous power of the mass media to influence the deliberations, and even the agenda, of Congress. While such changes have come about by circumstance and usage rather than design, they undoubtedly have debilitated the capacity of elected delegates to be representative in the sense that Edmund Burke used the term in his famous admonition to the Electors of Bristol, that is, in refusing to bow to unwarranted pressures from individual citizens and interest groups who are outside the constituted processes. But the constitutional change that divested state legislators of the power to represent their constituents in the election of U.S. senators, and that invested that power in mass statewide electorates, stands alone for having been deliberate. In fact, it is the only plebiscitarian subversion of the federal system to have been accomplished through the formal representative process itself.

In direct contradiction to the reformers' contention that the Senate, elected by the legislatures, was too unresponsive and too corrupted and that it would never yield to the demands of the people until placed directly under their control, two-thirds of the Senate and three-fourths of the legislatures concurred in a constitutional revision alleged to be against their political self-interest. The very adoption of the amendment would seem to call into question its necessity. Furthermore, considering not only that the Senate itself endorsed the amendment but that all of the legislatively elected incumbents renominated for Senate seats went on to win in the popular elections of 1914, it is difficult to determine precisely which of the "special interests" had been defeated by its?ratification. Add to these considerations the utter failure to remove the influence of money and the fact that the much-maligned electioneering machines appear not so much to have been overthrown as to have adapted their tactics, and it is not merely the necessity of the amendment that is called into question, but the validity of the assumptions on which it was advanced. [...]

Ultimately, the corruption of the Senate election process would seem to have started with the corruption of original intent as early as the Jacksonian Era. That intent, contrary to Progressive belief, was that the role of the people would be limited to choosing good legislators at the local level, and trusting the hierarchical system of representation to filter and refine popular sentiments in the appointment of senators. The eventual failure of the original method of elections was as much an indictment of the people themselves as it was of the system. Having proven incompetent in the election of honest legislators, their proposed reform consisted of transferring Senate elections from the "corrupt" few directly to the incompetent many.

But, with the exception of 1787, this has been the general direction of American constitutional reform. As Walter Lippmann clearly perceived, "The American people came to believe that their Constitution was a democratic instrument, and treated it as?such." When it failed to work as expected, it was the Constitution, not the mistaken assumptions, that had to be changed. As exemplified in the election of senators, the cure for the ills of democracy was believed to be more democracy. Parties and administrations have come and gone, but that formula has remained the prescription for American politics down to the present day.

The 17th was ratified 90 years ago today and has been a blight on the Republic ever since. We assume you're all, like us, wearing black arm-bands today? Posted by Orrin Judd at May 9, 2003 12:30 PM