SB 75: Nomination of United States Senator Candidates at State Convention

Senator Buck has introduced SB 75 which requires parties to nominate their United States Senate candidates at state conventions rather than via a primary election. This would be consistent with the manner in which Indiana parties nominate their candidates for lieutenant governor, secretary of state, auditor of state, treasurer of state, and attorney general. Someone asked my thoughts on the matter. Upon reflection, my feelings about this aren’t as strong as I would have guessed. As an abstract matter, I don’t like it. Let the people decide! As a practical matter, I’m not sure it’s a bad thing to have nominees chosen at conventions. Certainly I’ve never felt deprived when my primary ballot didn’t include choices for Auditor and Treasurer of state. And, in my mind, having Richard Mourdock as a choice in the general election rather than Richard Lugar was not a positive development for voters. So, I guess I come down in favor of leaving the system for selecting U.S. Senate nominees as it is; but not by an overwhelming margin.

That said, I don’t agree at all with Sen. Buck’s own rationale for this, which seems to arise out of the notion that the 17th Amendment was a bad idea. “Sen. James Buck of Kokomo presented his plan to the Senate Elections Committee last week. He said a bloated federal bureaucracy grew from the movement toward voters — not state lawmakers — electing U.S. senators before adoption of the 17th Amendment in 1913.” The 17th Amendment provides for direct election of Senators. Prior to that, Senators were selected by state legislatures which led to all manner of corruption and shenanigans, including (without limitation) gun fire in the Indiana State House. (See: The Black Day of the Indiana General Assembly.)

The anti-17th Amendment sentiment is not unique to Senator Buck. It has expressed itself in various ways among Republicans in the last several years. In 2014, Sen. Smith introduced SJR 3 which would have purported to rescind Indiana’s ratification of the 17th Amendment. The argument is generally that, if the people elect the Senators, the Senator doesn’t truly represent the State as a sovereign which, in turn, makes the Senator more likely to go along with infringement of state sovereignty and a corresponding expansion of federal power. I think that argument is mostly specious. The fact that federal power expanded quickly after the 17th Amendment was ratified in 1913 is mostly a correlation-does-not-equal-causation situation. Industrialization and revolutions in communications and transportation were happening at the same time, we were in the midst of the Progressive Era, and World War I was on the horizon. All of those things were going to trigger an expansion of federal power no matter how Senators were selected. For my part, I’m on record as having the opinion that the selection of Senators by the General Assembly caused a lot more problems than we’ve experienced from direct election (what follows is from a 2014 blog post):

In 1854, the Indiana Democratic Party was led by a man named Jesse Bright, a man described as “hateful and extraordinarily ambitious.” He rose to power as a bully and apparently remained one thereafter. His pugnaciousness was no small part of the series of events that led to a two year period in which Indiana had only one U.S. Senator instead of the customary two. At the time, the General Assembly was responsible for choosing U.S. Senators. However, in 1854, a backlash rose against passage of the Kansas-Nebraska Act, an act that permitted slavery in states north of the Mason-Dixon line. Bright, himself a slave owner with holdings in Kentucky, pushed a state party platform that endorsed the Act. This was not popular with all Democrats, but Bright and his machinery punished those who opposed it, driving a wedge in the state Democratic party and giving rise to a confederation of former Whigs, Free Soilers, Know-Nothings, and dissident Democrats who joined into a fusion movement that swept the elections that year. They took control of the House of Representatives, but the Democrats narrowly hung on to the state Senate.

The first order of business for the new General Assembly was selecting a United States Senator. However, rather than permitting the choice of a Fusionist, the Democrats refused to caucus. As a consequence, from 1855-1857, Jesse Bright was Indiana’s lone Senator. In 1862, the United States Senate would go on to expel him from the Senate for acknowledging Jefferson Davis as President of the Confederate States of America and for facilitating the sale of arms to the Confederacy.

Dysfunction and machine politics were not unique to the Indiana Senate selection process. In 1906, Hoosier native and DePauw graduate, David Graham Phillips wrote a series of articles entitled “The Treason of the Senate” which played no small part in the eventual passage of the Seventeenth Amendment providing for the direct election, as opposed to legislative selection, of United States Senators. As the industrial might of the country grew in the post-Civil War era, those with major business interests came to understand that they could best exert their influence on the U.S. Senate by offering financial incentives to the state legislators who selected its members. Phillips documented some of these abuses, for example the close alignment between the Rockefellers and the political machine of Rhode Island’s Nelson Aldrich. Rhode Island’s legislature and, therefore, its two Senate seats could be had at very little expense.

Following popular anger at the dysfunction and abuse of the legislative selection system, the United States passed the Seventeenth Amendment, removing the selection process from frequently corruptible legislatures and providing for direct election of our Senators.

Now, however, Indiana officials, including state senator James Smith (R-Charlestown) and Indiana’s Attorney General, Gregory Zoeller have advocated repealing the Seventeenth Amendment. Earlier this year, Smith introduced legislation proposing to take the legally dubious step of rescinding Indiana’s ratification of that Amendment. Zoeller recently expressed his distaste for popular election of Senators at a meeting of the Federalist Society. The old way, he contends, was better because it made Senators instruments of the State rather than instruments of the people, thereby enhancing our federalist form of government with the States themselves being represented in Congress.

My high school history teacher told us that “today’s reforms are tomorrow’s corruption.” And our current U.S. Senate certainly is not a model organization. However, trading in today’s abuses for yesterday’s corruption is not the way to go about reform. If the state legislatures are at odds with the popular will, the solution is not to neuter the will of the People. More likely the solution is to change the composition of the legislature.