MASSON: Repealing the 17th Amendment would be step backward

In 1854, the Indiana Democratic Party was led by Jesse Bright, a man described as “hateful and extraordinarily ambitious.” He rose to power as a bully and apparently remained one. His pugnaciousness was no small part of the events that led to a two-year period in which Indiana had only one U.S. senator.

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, which permitted slavery north of the Mason-Dixon line.

Bright, himself a slave owner with holdings in Kentucky, pushed a state party platform endorsing 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 took control of the House—though the Democrats narrowly hung on to the Senate.

The first order of business for the new General Assembly was selecting a U.S. senator. However, rather than permitting the choice of a Fusionist, the Democrats in the Senate refused to caucus. As a consequence, from 1855 to1857, Bright was Indiana’s lone senator.

In 1862, the U.S. Senate expelled him 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 titled “The Treason of the Senate” which played no small part in the eventual passage of the 17th Amendment providing for the direct election, as opposed to legislative selection, of U.S. senators.

As the industrial might of the country grew in the post-Civil War era, those with major business interests understood they could best influence 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, thus 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 nation passed the 17th Amendment, removing the selection process from frequently corruptible legislatures and providing for direct election of senators.

Now, however, Indiana officials including state Sen. James Smith, R-Charlestown, and Attorney General Greg Zoeller have advocated repealing the amendment. This year, Smith introduced legislation proposing to take the legally dubious step of rescinding Indiana’s ratification of the 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 legislatures are at odds with 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.•

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Masson is a Lafayette attorney, author of Masson’s Blog and former counsel for the Legislative Services Agency. Send comments to ibjedit@ibj.com.