Forward into the past

There's a movement to stop U.S. Senate elections

Sue Lowden is the latest casualty of battles over the 17th Amendment.

Sue Lowden is the latest casualty of battles over the 17th Amendment.


It was Thursday, Nov. 18, 2013. A member of the Douglas County Republican Central Committee, Walter Nowosad, was conducting an interview with Sue Lowden, a former state senator who was running for the GOP nomination for lieutenant governor.

In the course of the interview, Lowden showed an inclination to go along with local party sentiment, as with Nowosads’s eighth question.

“When ratified, the Constitution provided that two senators be appointed by their state legislature,” Nowosad said. “That changed in 1913 with the ratification of the 17th Amendment and provided for those seats to be filled by popular election. Mark Levin, in his book, The Liberty Amendments, suggests that we repeal the 17th Amendment and return to appointment by the legislature. Would you support Levin’s position? If not, why not?”

There were land mines all over this question, but Lowden failed to see them.

“I would absolutely support it,” Lowden answered. “I supported term limits, for instance, when I was in the state Senate. If we had term limits in the United States Senate, we wouldn’t have this problem right now. I don’t know why the senators wouldn’t want it shown in good faith to the American public that this would be a good idea for our country. Instead we have Harry Reid, the Harry Reids of our country who are there over and over again and have a tremendous amount of money to be re-elected. Yes, I think people are really fed up with bad people in government. If that’s a way to change things up in Washington, I would be all for it and do whatever we [need] to do it, but I think term limits is an easier way to do it if there was some way to get that on.”

Little of her rambling answer had to do with the question, but the bottom line was she had come out against the popular election of United States senators. The interview lay dormant for a few months, like a time bomb, until Nowosad got an interview with Lowden’s opponent, Mark Hutchison. Then on March 27 both interviews were posted on the Douglas County GOP website. Within a day Lowden was getting her reward.

“Most astonishing [in the interviews] was Lowden heartily embracing repealing the 17th Amendment and returning to state legislatures the appointment of U.S. Senators,” wrote commentator Jon Ralston.

Chris Gentilviso in the Huffington Post: “If it were up to Nevada lieutenant governor candidate Sue Lowden (R), Americans might not have to worry anymore about voting for their senators at the polls.”

Talking Points Memo: “Failed Senate Candidate Wants To End Direct Election Of Senators” (Lowden had somehow lost a U.S. senate primary to Sharron Angle in 2010).

PoliticsUSA: “Nevada Republican Wants to End Senate Elections Because Harry Reid Won.”

It would be nice to report that this is an oddball occurrence in one small state’s political life. But in fact, while the issue has not reached critical mass, it is playing a role in a fair number of states.

In a Republican primary debate in Salt Lake City in January 2010, the three Republican candidates for the U.S. Senate debated. Incumbent Robert Bennett, a conservative Republican who was adjudged insufficiently crazy by social conservatives, found himself having to defend the 17th Amendment against his two opponents. Bennett lost the primary to repeal supporter Mike Lee, who went on to win the election and now pushes for repeal of the 17th in the Senate.

The same year in Colorado, Republican Ken Buck ran as an advocate of repealing the 17th until Democrats started using the issue, whereupon he changed his position.

In Alaska, GOP U.S. Senate nominee Joe Miller’s stance allowed headlines like “Joe Miller Thinks His Own Senate Race Should Be Unconstitutional” and “Joe Miller—Elect me so I can take your vote away.” He beat GOP incumbent Lisa Murkowski in the primary but narrowly lost the general election when she ran as a write-in candidate.

Republican U.S. Senate nominees in Arizona, Indiana, Michigan and Missouri supported repeal.

The American Legislative Exchange Council (ALEC), lavishly funded by reactionary corporations and billionaires, drafted a partial proposal on appointment of senators, but dropped it after it leaked.

Clearly something is going on with the 17th Amendment.

Idea mart

It’s not unusual, during periods of economic instability, for unusual public policy proposals to enter the public arena.

Unlike previous periods of unhappiness with mainstream politics, some of the proposals that have been surfacing do not foreshadow potential policies for the future. Rather, they call for reviving policies of the past. There has been, for instance, a revival of interest in nullification and interposition, a forerunner of secession.

The theory was that a state had the power to interpose its will and nullify federal laws. (We’re not making this up.) It’s a doctrine that had considerable currency during the run-up to the Civil War and after enactment of the Affordable Care Act, there were some figures who called for states to nullify it. Texas Republican candidate for governor Debra Medina called for nullification and interposition to block federal laws in “agriculture, energy, education, health care, industry.” She stopped short of calling for secession, but just barely. Good to know a line is drawn somewhere.

It appears fairly clear that at least some of the support for repeal of the 17th Amendment is derived from the fact that some activists are trying to accomplish through legislative appointment of senators things they cannot achieve at the ballot box. At American Thinker, for instance, Jon Hall wrote that it is the fault of the 17th Amendment that Minnesota “is now represented by a comedian” (Al Franken).

Nowhere is this clearer than in Nevada, whose voters re-elected Harry Reid in 2010, to the immense displeasure of 17th Amendment opponents. “HARRY REID, THE POSTER BOY FOR THE REPEAL OF THE 17TH AMENDMENT.”

On, an anonymous posting reads, “I’ll guarantee you that Obamacare would’ve never passed if the 17th Amendment wasn’t introduced or enacted at least. Part of the process of taking back our constitutional liberties is to return power which has been lost back to the states. Let Harry Reid know he’s not king of the Senate.” “The 17th Amendment gives the federal government a Senate free of obligation to the states. Today’s senators, no matter how great, are not obligated to serve the needs of the state that elected them. Once having served to lobby for the needs of the state legislature, the 17th created a federal guarantee of political party ’block and tackle.’ What was once a check and balance has become the dysfunction of D.C. Today’s Democrat-controlled Senate has over 140 job and economy bills submitted by the Republican House that Majority Leader Harry Reid has refused to put on the docket for debate, compromise and passage.” “The Bundy Ranch Siege: An Example Why the 17th Amendment is the Reason Senator Harry Reid is Corrupt.” (The syntax is confusing and the corruption is unsubstantiated).

What is past is prologue

This is the joint resolution approved by Congress on December 4, 1911, and sent to the states to amend the U.S. Constitution to make senators elective.


But there are more serious arguments for repeal of the 17th. Some activists believe that state legislatures are less compromised than Congress, suggesting they have never been to a state legislature. Legislatures tend to be cat’s paws for business. In Nevada, the Legislature is a cat’s paw for businesses generally and casinos in particular.

There are also states’ rights advocates who argue that the original idea of appointed senators was of “ambassadors” to the federal government, increasing the authority and strength of state governments.

The historical record is uncertain on whether this theory is true. At the constitutional convention Delaware delegate John Dickinson, who proposed the plan for legislatures appointing senators, did not mention it in his list of reasons.

Moreover, during both the convention and the ratification period there were those who expected appointed senators to increase the power of the federal government. And reinforcing states’ rights wasn’t necessarily a widespread concern, in part because the state legislatures were regarded as less than competent or even corrupt. Connecticut delegate John Sherman argued that appointed senators would mean “the particular states would thus become interested in supporting the national government.” In the Federalist Papers written during ratification, “Publius” (Alexander Hamilton) discussed Senate appointments in the context of “a probability that the general government will be better administered than the particular government [state government].”

In some ways, the record suggests the opposite of the notion that appointed senators would be advocates of their states. Rather, there was some expectation that House members would look after their regions while appointed senators would take a broader, national view. During the ratification period, “A Citizen of America” (Noah Webster) wrote that appointed senators would “act for the aggregate interest of the whole community.” He also faulted senators in the state legislatures because, coming from districts instead of statewide, they were too “inspired by local views,” which does not suggest that he wanted senators preoccupied by state rights in a federal system.

James Madison of Virginia was one delegate who fit the belief that state legislative election of senators would enhance states’ rights. “This election of one branch of the federal, by the state legislatures, secures an absolute dependence of the former on the latter,” he said in responding to Patrick Henry criticisms of the proposed constitution. But his was far from a universal view.

Downhill slide

Following ratification of the Constitution, the system of legislatures appointing senators degenerated into rank corruption and graft.

History textbooks may instruct us in the debates between Stephen Douglas and Abraham Lincoln, which were held to encourage voters to support state legislators who backed the two candidates’ political parties, but the reality was not so high minded.

In Nevada’s early days, so much money was thrown around in Senate appointment years that U.S. Senate appointments were practically a form of economic development. There were two phases in each appointment—bribing rank and file voters in the general election to vote for state legislators, then bribing those state legislators to vote for Senate candidates.

In the first round in 1880, James Fair was reported having spent $40 a vote in Washoe County and up to $80 in Churchill County.

Carson City editor Sam Davis considered the 1872-73 appointment of John P. Jones to the U.S. Senate to be a turning point. Jones, who had lost a sheriff’s race in California two years earlier, moved to Nevada where public office could be purchased much more cheaply. According to Davis, Jones unnecessarily spent a half-million dollars in a race that was already wired in his favor. ($500,000 in 1873 is more than $9 million in 2013 dollars.)

In 1875, William Sharon—another Californian—laid out $800,000 for a U.S. Senate seat from Nevada, then returned to San Francisco where he spent virtually the entire six-year term, to the point that in 1879 secretary of the senate John Burch said that if Sharon tried to claim his salary then he (Burch) would submit the case to the controller of the U.S. Treasury. At that point, Sharon had shown up for work for only two months of his four years in office. To give some indication of how divorced appointive senate races were from merit, Sharon’s money nevertheless made him a serious candidate for reelection.

This era of U.S. Senate seats publicly on the auction block created so much revulsion in the public that it led to proposals to strip legislatures of the power to appoint. The Populist Party, whose platform was more or less adopted by the Democratic Party in the 1896 campaign, advanced the proposal. In 1913, more than enough state legislatures approved it and Secretary of State William Jennings Bryan had the satisfaction of signing the final ratification of the 17th Amendment, which he had advocated as the Democratic nominee for president in three campaigns, including 1896.

In 1997, the alleged Nevadan Jay Bybee, who co-authored the second Bush administration’s legal rationale for torture, wrote for conservatives who oppose popular election of senators, “How could the states have been so foolhardy as to disenfranchise themselves?” But the notion that senators might become less oriented to state rights seems belied by the record. They are often criticized for not having enough of a national outlook. Some of those who support repeal of the 17th are also those critical of Harry Reid for protecting Nevada from a federal nuclear waste dump.

Berkley defeats Heller

There seems little doubt that Democrats consider repeal of the 17th to be a good issue for them. For one thing, in 2010, one of the factions of the Tea Party released a 10-point “Contract from America.” Number 10 was “Stop the Tax Hikes: Permanently repeal all tax hikes, including those to the income, capital gains and death taxes, currently scheduled to begin in 2011.” Mysteriously, when the Democratic Party started sending out attacks on the Contract, No. 10 had been re-worded into, “Repeal the 17th Amendment: Take away your right to pick your U.S. Senator.”

When appointing U.S. senators, legislatures met as single bodies, not as two houses. The partisan breakdown nearly always determined the outcome of U.S. Senate appointments. Of the senators appointed by legislatures during 12 and a half decades, only 2 percent of the senators appointed did not represent the majority of the appointing legislature.

Translating the outcome from pre- and post-17th Amendment law can be done neatly by looking at the last two U.S. Senate elections in Nevada.

Democrat Harry Reid ran for reelection in 2010. Though news coverage of the campaign suggested a close race, he ended up winning an easy 6-point victory over Republican Sharron Angle. Voters also elected a Nevada Legislature with a 37 to 26 Democratic majority. If federal senators had still been appointive, the lawmakers would have reached the same decision as the voters.

In 2012 Republican Dean Heller, appointed to the Senate by the governor to fill a vacancy, sought election to a full term of his own. This race was much tighter—Heller defeated Democrat Shelley Berkley by a percentage point. In the legislature, Democrats held their majorities and picked up a seat, now controlling the legislature 38 to 25. The lawmakers would have appointed Berkley.

Candidates who advocate legislative election of U.S. senators often seem a bit out of touch and behind the times, as though they were debating the League of Nations or coinage of silver at 16 to 1. Yet, as in the case of Lowden, they keep doing it. Why take the political risk?

Political analyst Fred Lokken said it’s the nature of low turnout primary elections, in which the “more agitated extremists show up.”

“I like to tell my students that normal people don’t participate in primaries,” Lokken jokes.

As a result, the most zealous have an outsized influence in primaries, with the result that candidates try to cultivate them. Describing Republican primaries, he said, “It’s a kind of grotesque pandering that results, especially during a primary season when you’re trying to lure the extreme right.”

The result is that after the primary is over, Republican candidates must shed their most extreme proposals, which leads to voter cynicism.

Some believe that repeal of the 17th has no chance of getting through Congress or the states. “Fortunately, repeal will never happen,” David Firestone wrote in the New York Times. That level of certainty was also present about alcohol prohibition in 1929, three years before repeal, because dry states controlled enough votes in Congress and in state legislatures to stop it. Then repeal happened in 288 days, one of the fastest ratifications.

When Nowosad interviewed Sue Lowden’s opponent, Mark Hutchison, he asked the same questions of both. When they came to the 17th Amendment, Hutchison avoided the pitfalls into which Lowden had stepped. He had something for everyone, but didn’t endorse repeal:

“I don’t know that I would be in support of a complete repeal of the 17th Amendment, you know, just by waving a magic wand. I would be supportive of allowing the states to, by the process permitted by the United States Constitution, to come together and to determine within their state legislatures whether they would like to do that on a state-by-state basis. And if there is sufficient numbers, if there is three-quarters that decide that they wanted to amend the Constitution back to the way it was, I’m all in favor of the people of the United States being able to make that decision. But again, you don’t do it by waving a magic wand, you would go through the amendment process set forth in the United States Constitution. I will say that I am very sympathetic to the idea that state’s rights need to be asserted much more against the federal government.”

Hutchison defeated Lowden, 54 to 36 percent.

If nullification and appointment of senators are back in the political arena, can repeal of women’s suffrage and revival of slavery be far behind? After all, just last month voters in Nevada’s Douglas, Lyon and Storey counties voted to renominate a state legislator who promised to vote for slavery like a good little seismograph if that’s what the public wants him to do.