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Surviving Legislative Deadlock

Permanent Link: http://ufdc.ufl.edu/UFE0042381/00001

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Title: Surviving Legislative Deadlock Institutional Reform in the United States Senate
Physical Description: 1 online resource (196 p.)
Language: english
Creator: Cicenia, Daniel
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2010

Subjects

Subjects / Keywords: deadlock, legislative, senate, states, united
Political Science -- Dissertations, Academic -- UF
Genre: Political Science thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

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Abstract: SURVIVING LEGISLATIVE DEADLOCK: INSTITUTIONAL REFORM IN THE UNITED STATES SENATE This dissertation addresses the following broad theoretical question. Why do seemingly stable democratic institutions undergo sudden, abrupt transformation? Only once in American political history has the structure of a national political institution changed through a constitutional amendment. This dissertation examines the forces contributing to the passage of the 17th Amendment, which allowed for direct election of US Senators. The effects of this amendment s passage are obviously far-reaching, as it took the power of appointing Senators away from the state legislatures and gave it to the general public. Contributing to the literature on institutional development in the US Congress, this study examines the long-term patterns and short-term pressures which led to the direct election of Senators. One contribution of this dissertation is to provide empirical evidence regarding theoretical claims about institutional change in a democracy, as well as shifts in the motives and behavior of individual members of Congress. A second contribution is to provide theoretical insight into an understudied event in American political development. Third, this dissertation uses original data, which provides new understanding into the nature of legislative deadlocks during the Progressive Era.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Daniel Cicenia.
Thesis: Thesis (Ph.D.)--University of Florida, 2010.
Local: Adviser: Dodd, Lawrence C.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2012-12-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2010
System ID: UFE0042381:00001

Permanent Link: http://ufdc.ufl.edu/UFE0042381/00001

Material Information

Title: Surviving Legislative Deadlock Institutional Reform in the United States Senate
Physical Description: 1 online resource (196 p.)
Language: english
Creator: Cicenia, Daniel
Publisher: University of Florida
Place of Publication: Gainesville, Fla.
Publication Date: 2010

Subjects

Subjects / Keywords: deadlock, legislative, senate, states, united
Political Science -- Dissertations, Academic -- UF
Genre: Political Science thesis, Ph.D.
bibliography   ( marcgt )
theses   ( marcgt )
government publication (state, provincial, terriorial, dependent)   ( marcgt )
born-digital   ( sobekcm )
Electronic Thesis or Dissertation

Notes

Abstract: SURVIVING LEGISLATIVE DEADLOCK: INSTITUTIONAL REFORM IN THE UNITED STATES SENATE This dissertation addresses the following broad theoretical question. Why do seemingly stable democratic institutions undergo sudden, abrupt transformation? Only once in American political history has the structure of a national political institution changed through a constitutional amendment. This dissertation examines the forces contributing to the passage of the 17th Amendment, which allowed for direct election of US Senators. The effects of this amendment s passage are obviously far-reaching, as it took the power of appointing Senators away from the state legislatures and gave it to the general public. Contributing to the literature on institutional development in the US Congress, this study examines the long-term patterns and short-term pressures which led to the direct election of Senators. One contribution of this dissertation is to provide empirical evidence regarding theoretical claims about institutional change in a democracy, as well as shifts in the motives and behavior of individual members of Congress. A second contribution is to provide theoretical insight into an understudied event in American political development. Third, this dissertation uses original data, which provides new understanding into the nature of legislative deadlocks during the Progressive Era.
General Note: In the series University of Florida Digital Collections.
General Note: Includes vita.
Bibliography: Includes bibliographical references.
Source of Description: Description based on online resource; title from PDF title page.
Source of Description: This bibliographic record is available under the Creative Commons CC0 public domain dedication. The University of Florida Libraries, as creator of this bibliographic record, has waived all rights to it worldwide under copyright law, including all related and neighboring rights, to the extent allowed by law.
Statement of Responsibility: by Daniel Cicenia.
Thesis: Thesis (Ph.D.)--University of Florida, 2010.
Local: Adviser: Dodd, Lawrence C.
Electronic Access: RESTRICTED TO UF STUDENTS, STAFF, FACULTY, AND ON-CAMPUS USE UNTIL 2012-12-31

Record Information

Source Institution: UFRGP
Rights Management: Applicable rights reserved.
Classification: lcc - LD1780 2010
System ID: UFE0042381:00001


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1 SURVIVING LEGISLATIVE DEADLOCK: INSTITUTIONAL REFORM IN THE UNITED STATES SENATE By DANIEL A. CICENIA A DISSERTATION PRESENTED TO THE GRADUATE SCHOOL OF THE UNIVERSITY OF FLORIDA IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF DOCTOR OF PHILOSOPHY UNIVERSITY OF FLORIDA 2010

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2 2010 Daniel A. Cicenia

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3 To Robert and Jacqueline Cicenia

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4 ACKNOWLEDGMENTS I am deeply indebted to everyone whose assistance has made this achievement possible. I have dedicated this dissertation to my parents, Robert and Jacqueline Cicenia. Your love, support, and example have guided me throughout my life. Completion of this project would not have been possible without the generous financial support of the Department of Political Science. The department has supported me continuously since I entered the doctoral program in 2004. Additionally, the department h as provided funding to attend the ICPSR Summer Program in 2005, and in 2008 to conduct archival research in Washington D.C., in addition to monetary support to attend second trip to the Summer Program in 2007. My success in this program began the moment I chose Lawrence C. d enthusiasm for my research was unyielding throughout my doctoral studies Daniel A. Smith has taken a prominent role in my development as a political scientist and as an instructor. Professor Smith is the consummate scholar, whose mentoring provided a wo nderful example for me to learn from Bet h A. constructive advice helped make this dissertation a better product Won ho Park was an indispensible part of my Larry Kenny provided helpful and insightful commen ts along the way Last, I would like to thank the friends I have made in the greater Gainesvi lle community. Your friendship not only made me feel at home, but also strengthened me as a person.

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5 TABLE OF CONTENTS page ACKNOWLEDGMENTS ................................ ................................ ................................ .. 4 LIST OF TABLES ................................ ................................ ................................ ............ 7 LIST OF FIGURES ................................ ................................ ................................ .......... 8 ABSTRACT ................................ ................................ ................................ ..................... 9 CHAPTER 1 INTRODUCTION ................................ ................................ ................................ .... 11 Existing Theories on the 17 th ................................ ............. 13 Foundations of the Early Senate ................................ ................................ ............. 20 Development of the Early Senate ................................ ................................ ........... 22 Building Consensus for Direct Elections: Cases Before the Privileges and Elections Committee ................................ ................................ ............................ 25 Later Disputes and Calls for Reform ................................ ................................ ....... 26 Tipping Points and Calls f or Final Passage ................................ ............................ 29 2 FOUNDATIONS OF THE EARLY SENATE ................................ ............................ 33 Introduction ................................ ................................ ................................ ............. 33 Mixed Constituti on Theory ................................ ................................ ...................... 34 Modern Liberal Philosophers and Constitutional Theory ................................ ........ 36 Senates in Early State Legislatures ................................ ................................ ........ 39 Debates in the Constitutional Convention ................................ ............................... 41 The Great Compromise ................................ ................................ .......................... 44 Debate Over Senate Elections ................................ ................................ ................ 46 Conclusion ................................ ................................ ................................ .............. 49 3 DEVELOPMENT OF THE EARLY SENATE ................................ ........................... 51 Introduction ................................ ................................ ................................ ............. 51 The First Senate ................................ ................................ ................................ ..... 51 ................................ ................................ 54 Relations between the Senate and State Legislatures ................................ ........... 56 Early Disputes and Proposals for Reform ................................ ............................... 58 The Stockton Case and The Elections Act of 1866 ................................ ................. 64

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6 4 BUILDING CONSENSUS FOR DIRECT ELECTIONS: CASES BEFORE THE PRIVIL EGES AND ELECTIONS COMMITTEE ................................ ...................... 69 The Louisiana Cases ................................ ................................ .............................. 69 More Competing Senate Appointments ................................ ................................ .. 72 Pressure Mounts for Reform ................................ ................................ ................... 75 ................................ ................................ ............................ 80 William Clark of Montana ................................ ................................ ........................ 83 Reed Smoot of Utah ................................ ................................ ............................... 87 Conclusion ................................ ................................ ................................ .............. 90 5 LATER DISPUTES AND CALLS FOR REFORM ................................ ................... 91 Introduction ................................ ................................ ................................ ............. 91 The Progressive Context ................................ ................................ ........................ 93 Impa ct of the National Press ................................ ................................ ................... 96 Senate Election Disputes and Calls for a Constitutional Amendment ................... 100 Data and Methodology ................................ ................................ .......................... 103 Analysis ................................ ................................ ................................ ................ 105 Conclusion ................................ ................................ ................................ ............ 122 6 TIPPING POINTS AND CALLS FOR FINAL PASSAGE ................................ ....... 126 Introduction ................................ ................................ ................................ ........... 126 Social Learning, Prospect Theory and Congressional Decisionmaking ................ 128 Oregon Plan ................................ ................................ ................................ .......... 134 Rise of the Insurgents ................................ ................................ ........................... 136 Lorimer and Stephenson Cases ................................ ................................ ........... 139 Debate over Final Passage ................................ ................................ ................... 148 Roll Call Data ................................ ................................ ................................ ........ 154 Results ................................ ................................ ................................ .................. 159 Conclusion ................................ ................................ ................................ ............ 164 7 CONCLUSION ................................ ................................ ................................ ...... 169 Impact of Direct Elections on the U.S. Senate ................................ ...................... 169 Implications for Future Research ................................ ................................ .......... 170 Implications for Future Constitutional Amendments ................................ .............. 171 Conclusion ................................ ................................ ................................ ............ 175 APPENDIX: CODING SHEET FOR ARTICLES IN STUDY ................................ ........ 178 LIST OF REFERENCES ................................ ................................ ............................. 182 BIOGRAPHICAL SKETCH ................................ ................................ .......................... 196

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7 LIST OF TABLES Table page 4 1 House votes on the Amendment for Popular Election of Senators. .................... 77 5 1 State Petitions for a Constitutional Convention ................................ ................. 102 5 2 Article Themes for Senate Elections ................................ ................................ 107 5 3 Articles For/Against Amendment ................................ ................................ ...... 110 5 4 State Petitions for a Constitutional Amendment 1897 1912 ........................... 120 6 1 Vote to Expel Lorimer From the Senate in the 61 st Congress ........................... 144 6 2 Vote to Unseat Lorimer from the Senate in the 62 nd Congress ......................... 147 6 3 Final vote in Senate by Party and Petition State (62 nd Congress) .................... 158 6 4 Final Passage on the 17 th Amendment in U.S. Senate ................................ ..... 161 7 1 Popular Support for Proposed Constitutional Amendments ............................. 174

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8 LIST OF FIGURES Figure page 5 1 Articles by category ................................ ................................ .......................... 108 5 2 Risk of a State Petitioning Congress for a Constitutional Convention .............. 118 6 1 Value Function in Prospect Theory ................................ ................................ ... 132

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9 Abstract of Dissertation Presented to the Graduate School of the University of Florida in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy SURVIVING LEGISLATIVE DEADLOCK: INSTITUTIONAL REFORM IN THE UNITED STATES SENATE By Daniel A. Cicenia December 2010 Chair: La wrence C. Dodd Major: Political Science This dissertation addresses the following broad theoretical question. Why do seemingly stable democratic institutions undergo sudden, abrupt transformation? Only once in American political history has the stru cture of a national political institution changed through a constitutional amendment. This dissertation examines the forces contributing to the passage of the 17th Amendment, which allowed for direct election of U.S. reaching, as it took the power of appointing Senators away from the state legislatures and gave it to the general public. Contributing to the literature on institutional development in the U.S. Congress, this study examines the long term patterns and short term pressures which led to the direct election of Senators. One contribution of this dissertation is to provide empirical evidence regarding theoretical claims about institutional change in a democracy, as well as shifts in the motives and behavior of individual members of Congress. A second contribution is to provide theoretical insight into an understudied event in American

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10 political development. Third, this dissertation uses orig inal data, which provides new understanding into the nature of legislative deadlocks during the Progressive Era.

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11 CHAPTER 1 INTRODUCTION the office was experiencing an increase of 400 constituent cases, 30% additional meetings, 5% more constituent phone calls, along with an additional committee a ssignment. All this was due to the protracted campaign between incumbent which U.S. Senate seats to remain vacant for several months in the beginning of 200 9 1 This underrepresentation in Minnesota had profound one vote shy of a filibuster proof majority. Minnesota was not the only state to endure a Senate vacancy entering the 111 th Congress. Colorado, Delaware, Illinois, and New York had vacancies for different President Obama and Vice President Biden respectively. Colorado and New York were cabinet. Individual states have varying requirements for filling senate vacancies should they occur. The most common method is a gubernatorial appointment for a new senator to serve the remainder of the term in office. Other states call for a special election within weeks of a vacancy. As one can imagine, vacant senate seats can lead to confusion and deadlock. 1

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12 Deadlock such as this did occur in late 2008 with the appointment of President Blagojevich intended to sell the Senate seat previously held by Obama. 2 The scandal This was not the first time the state of Illinois endured a scandal of this type, as a similar controversy occurred nearly a century ago. As will be seen i n this dissertation, this controversy was the tipping point that produced a political earthquake. T hese more recent controversies have led Senator Russ Finegold (D WI) to propose amending the constitution over vacant senate seats. Finegold proposes a special election be called immediately following a senate vacancy. This solution would assuage any confu sion while allowing citizens to directly choose their senator for the a state was lacking o ne or both of their Senators were once a common occurrence. Between 1891 throu gh 1905, there were 14 Senate seats vacant for at least one session due to disputed appointments. In fact, the state of Delaware had no representation in the Senate between 1899 and 1901. 3 These deadlocks over disputed Senate appointments were one major fa ctor pushing Congress to pass the most sweeping institutional reform in American history This reform, the 17 th Amendment to the constitution, changed how Senators are 2 3 Studies in American Political Development (13): 1 30 Schiller, Wendy th Century Party Dominance: Evidence From Indirect Senate Elections 1871 American Political Science Association

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13 elected. The framers originally designed a Senate that was appointed by the individual s tate legislatures. The 17 th Amendment changed the method of electing senators so it would now be done by the voters in each state. Once dismissed as an effort without any realistic chance of passage, the 17 th Amendment emerged through a series of events ov er the course of decades. Both the exogenous and endogenous forces causing this I will provide a review on the limited a theory as to how this reform ultima tely passed, and empirical testing of this theory. Existing Theories on the 17 th Passage The existing literature has provided a limited glimpse as to the pressures facing the Senate in the decades preceding the 17 th Amendment. The first, and mo st widely used explanation is that the 17 th amendment was merely a reflection of several progressive electoral reforms passed during that period. 4 This is the focus of two major works focused on the 17 th Amendment 5 In 1938, Political Scientist George Ha ynes published a comprehensive volume on the United States Senate. The first section chronicles Senate history of the first 150 years of the chamber. The second section is a detailed portrait of Senate organization, procedure, and practices in the late 193 0s. In his chapter on the lead up to the 17 th Amendment, 4 Hoebeke, C. H. 1995. The Road to Mass Democracy: Orig inal Intent and the Seventeenth Amendment. New Brunswick, NJ: Transaction Publishers. Haynes, George H. 1938. The Senate of the United States: Its History and Practice, Volume II.Reprint. New York: Russell and Russell. 1960. 5 Haynes, G eorge H. 1938. The Senate of the United States: Its History and Practice, Volume II.Reprint. New York: Russell and Russell. 1960 Hoebeke, C. H. 1995. The Road to Mass Democracy: Orig inal Intent and the Seventeenth Amendment. New Brunswick, NJ: Transaction Publishers.

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14 Haynes provides a descriptive account on the controversies and arguments surrounding 6 A generation earlier, Haynes wrote a book taking a normative stand in support of the direct election of Senators. In arguing for the book. 7 There have been four doctoral disserta tions, three in Political Science and one in History whose focus is related to the 17 th Amendment. The first was in 1936, by Wallace Worthy Hall. This work is an excellent example of scholarship from the old institutionalist paradigm which dominated Politi cal Science in the first half of the 20 th Century. Hall provides detailed description of the resolutions and debates surrounding the history of the direct elections amendment. Hall proceeds to voice his normative approval, stating that this reform was bene ficial in that it took power away from elites. 8 th Amendment impacted the Senate internally after 1913. Daynes examines questions related to this factionalization, its role as a policy making body, and how it altered how candidates are recruited. 9 lected Senate impacted the 6 Haynes, George H. 1938. The Senate of the United States: Its History and Practice, Volume II.Reprint. New York: Russell and Russell. 1960. 7 Haynes, George H. 1906. The Election of Senators. New York: Henry Holt and Company. 8 Hall, Wallace W Dissertation 9 Unpublished PhD Dissertation.

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15 were that the Senate became more professionalized, with members more likely to be born in the state in which they were elected, and more likel y to have previously served in the House. 10 The most recent work by William D. Murphy attempts to directly tackle issues behind the 17 th th Amendment emerged as a reform due to a new understa nding of power relationships between the state legislatures and the Senate. This was in part, due to the Progressive porting a measure that expanded democratic practice, it was actually spurred by a desire to limit the participation of minorities and immigrants. 11 My dissertation goes beyond the above institution caused its members to act in a defensive posture towards this reform, as well as an passage. There also exists a limited number of journal length scholarship re lated to the 17 th Amendment. One article written four decades ago addresses why urban political machines were more likely to support the 17 th Amendment. The author argues how steps taken by state governments to weaken the electoral power of cities was a ma jor 10 Crook, Sara Brandes 1992. "The consequences of the Seventeenth Amendment: The twentieth century Senate" Unpublished PhD Dissertation. 11

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16 factor in engendering this support from urban machines. 12 Additional research has indicated that state interests played a strong role in predicting final passage of the 17 th Amendment. 13 An article by Jenkins points to partisanship as the main correlate to the outcome of contested Senate election cases throughout the history of the chamber. 14 Current work by Wendy Schiller and Charles Stewart is examining a similar question within state legislatures. 15 Wirls provides evidence that strategic motives for partisan 16 Another article finds that the 17 th Amendment and the introduction of the electoral cycle led to ideological moderati on among Senators. 17 However, no other scholarship exists that directly addresses the causes of the 17 th My argument in this dissertation is that three main forces drove an unlikely reform, the direct election of Senators to its eventua l passage. The explanation which I propose is that the old method of Senate elections being approved by State Legislatures and approved by the Senate led to increasing levels of controversy and institutional gridlock. 12 American History 56: 305 22. 13 the 16 th and 17 th E conomics and Politics 10: 143 159. Interest and the Senate Vote on Direct Elections Economics and Politics 2: 291 301. 14 Stud ies in American Political Development 19: 53 74 15 th Century Party Dominance: Evidence From Indirect Senate Elections 1871 American P olitical Science Association 16 Studies in American Political Development (13): 1 30. 17 Bernhard, William, and Brian R. th 57.

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17 First, the institution benefited from the infusion of institutional activists, who were pushing for popular reforms against an intransigent old guard. Second, deadlocks over Senate elections, led to higher levels of institutional instability within state legislatures and the U.S. Senate which brought increased pressure by states and members of Congress for institutional reform. In 1910, a major scandal which played a role both in shaping public opinion, and distracting members from other legislative business, and proved to be the tipping point that pushed the Senate over the edge. Last, the Senate was facing institutional threats. An exogenous threat was the state petitions calling for a constitutional convention for the direct election of Senators. An endogenous threat was the distractions Sen ators faced from their regular legislative business. Both these forces moved Senators to act in a defensive posture, acting in the interest of defending the institution and its stand ing in the national government. This dissertation takes a mixed methods approach in testing my argument. Mixed methods has become increasingly popular in the social sciences as an alternative to a single method research design. 18 Mixed Methods research integrates quantitative and qualitat ive data at different stages of the research process. By including both quantitative and qualitative data, the researcher can generalize to a population as well as gain a deeper context into the research question. 19 18 Creswell, J.W. 2003. Research Design: Quantitative, Qualitative, and Mixed Method Approaches 2nd Ed. Thousand Oaks, CA: S age Publications. Tashakkori, A., and Teddlie, C. Eds. 2003. Handbook of Mixed Methods in Social and Behavioral Research Thousand Oaks, CA: Sage Publications 19 Brewer, J. and Hunter, A. 1989. Multimethod Research: A Synthesis of Styles Newbury Park, NJ: Sa ge Publications Hanson, William E., Vicki L. Plano Clark, Kelly S. Petska, John W. Creswell, and J. David Creswell 2005. 224 35.

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18 This study contains a detailed historica l narrative tracing from the founding, the institutionalization of the Senate as it relates to disputed elections. Narratives help guide us in examining the temporal changes and sequencing patterns that impact institutional shifts. 20 This narrative is deriv ed from Congressional archival documents as well as articles from The Historical Washington Post. This study also contains a detailed quantitative analysis of the factors behind the drive to pass the 17 th Amendment. I turn to Event History Analysis to syst ematically examine the patterns behind state legislative calls for a constitutional amendment for the direct election of Senators. This is the first study to systematically examine the petitioning process by the states in the run up to the 17 th Amendment. Also included is a roll call analysis of final passage of the 17 th Amendment in the U.S. Senate. These analysis model the causal processes for how this amendment emerged and eventually passed. I draw from diverse literatures such as Historical institution alism and social learning to construct my theoretical argument. Historical institutionalism tends to be more wide ranging in the substantive topics it addresses. Scholars within this perspective are attracted to questions addressing why policies change or remain stable, as well as the unanticipated consequences of policy change. Particular attention is paid to the gradual and punctuated nature of policy change over time. This literature privileges the role early historical events play in shaping institution s, which in turn set a Tashakkori, A., and Teddlie C. 1998. Mixed Methodology: Combining Qualitative and Quantitative Approaches Thousand Oaks, CA: Sage Publications 20 e Review 96 (3):481 93. For applications in a legislative development context see also Kassel, Jason 2008. Constructing a Professional Legislature: The Physical Development of Congress, 1783 1851. Unpublished PhD Dissertation.

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19 particular path in motion, ev entually becoming resistant to change over time 21 However, over the long term, the eventual outcome may not necessarily be the most optimal occurs as the actor proceeds further up a given path, the cost of reducing cours e and pursuing a previously available policy becomes increasingly higher. Thus, for significant institutional change the status quo, 22 which slowly reach a threshold level, which ushers i n a new major institutional change. 23 The process by which Senators processed and arrived at this decision occurred as changes in the organizational environment. These institutional crisis moments lead members to question their epistemological assumptions about how the institution operates internally and with its power relationships in the br oader political system. 24 Such a crisis moment presented itself as Congress faced an explosive scandal and the 21 Comparative Historical Analysis in the Social Sciences, ed. James Mahoney and Dietrich Rueschemeyer, 337 372. Cambridge, UL; New York: Cambridge Univ. Press. Pi American Political Science Review 94: 251 267. 2004. Politics in Time: History, Institutions, and Social Analysis Princeton: Princeton University Press. 22 Pierson, 164. 23 Ibid 83. 24 Politics: Approaches and Interpretations (Boulder: Westview Press, 1994) Lawrence C. Dodd Bruce I. Oppenheimer, eds. Congress Reconsidered, 8 th Ed. (Washington DC: CQ Press, 2005).

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20 threat of a constitutional convention. With a constitutional convention, the Senate faced a potentially devastating change in its standing. I tur n to Prospect Theory as a form of social learning that provi des a model that can provide some insight into these motives as to why the Senate eventually passed the 17 th Amendment. 25 Central to Prospect Theory is how the environment shifts an aluation of outcome alternatives 26 Subscribers to the theory argue that this is an indication that losses loom larger than gains when making choices under risk. When Senators voted on the 17 th Amendment, they were reacting to various s standing as an institution. The Senate had become overwhelmed with the Lorimer case, with its hearings distracting senators from other stake due to the threat of a con stitutional convention. Therefore, the Senate passed this reform in a defensive posture, attempting to protect itself from these institutional threats. Foundations of the Early Senate ve to go back during the Constitutional Convention of 1787. Examining an 25 ity of human beings. Most decisions take place in a complex environment, and include a multitude of considerations. Individuals have the capacity to focus on only a limited number of considerations when making a specific choice. Therefore the focus of our attention at a particular point in time provides a major component for how we make choices. Jones, Bryan D. 2001. Politics and the Architecture of Choice: Bounded Rationality and Governance Chicago: University of Chicago Press. 26 McDermott, Rose. 1998. Ris k Taking in International Politics: Prospect Theory in American Foreign Policy Ann Arbor: Univ.of Michigan Press.

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21 path over time 27 Additionally, by examining the effect of enviro nmental changes to an particular choices are made at a particular point in time. 28 Chapter 2 b egins with a discussion of the philosophical underpinnings behind the government, consisting of different classes of society which would be a check against one another. In particular, I briefly look at the Roman senate, providing the separation of powers from an ancient perspective. I also address how some prominent 18 th Century philosophers either expanded or contradicted mixed government theory. Specifically, I constitution. It is important to look at these theories as they lead us to address why the founders created a Senate, why it gave it the spe cific powers it has, and most importantly, why Senators were elected by the state legislatures. Next, I turn to specific debates during the Constitutional Convention of 1787. Examining these foundations will illustrate why the framers chose the election o f political system. Debate over the selection of Senators during the Constitutional Convention included proposals such as election from the lower house, direct election fro m citizens, appointment by Governors, and appointment by State Legislatures. 27 Theory and Society 29: 507 48. en American Political Science Review 94: 251 267. 2004. Politics in Time: History, Institutions, and Social Analysis Princeton: Princeton University Press. 28 Legislative Studies Quarterly 14: 67 105.

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22 Overall, arguments supporting the election by the state legislatures centered on two themes. The first, was to preserve the interests of the wealthy and property holders against the masses. This point of view was supported by actions of the several state legislatures during the era of the continental congress. This sentiment also supported the view that the Senate should be an American House of Lords, with Senators of superior cha racter and prestige. The second argument was to preserve the power and representation of the state governments. 29 These arguments ruled the day and the convention overwhelmingly approved Senate election by the state legislatures. Development of the Early Se nate Chapter 3 examines how the Senate evolve d in the manner it did during the early 19 th Century, why disputes over Senate elections were rare prior to the Civil War and early attempts to reform the Senate election process. Scholars such as Daniel and St ephen Wirls explain Senate development and insti tutionalization as based on the expectations and conditions from the Convention of 1787. These authors point to the gradual rise of partisan voting patterns over time as a key indicator. 30 Therefore, one reaso n why disputed appointments did not reach a high level of salience during the first half of the 19 th Century is due to the fact that strong party and committee structures had yet to emerge in the Senate. 29 Murphy, 33 35. 30 Wirls, Daniel and Stephen Wirls 2004. The Invention of the United States Senate Baltimore: Johns Hopkins University Press. discussion of the House. They examine how the early Senate resolved uncertainty in norms and procedures, creating precedents for its relationship with the executive, the House, and the states. Wirls the House in its electoral relationship with the public, while diverging from the House with its internal rules.

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23 Several attempts to reform the Senate Election proc ess were proposed in Congress dating back to 1826. 31 This reform encountered substantial resistance in Congress. Andrew Johnson both as a Senator and as President made the most serious ss did not seriously consider this amendment again until the early 1890s. 32 The first dispute over a U S Senate election to reach national salience occurred in1865 over the appointment of James Stockton of New Jersey. 33 were quest ioned due to his election by a joint session of the New Jersey state Judiciary Committee the New Jersey st ate legislature were in compliance with the state constitution. However, controversy erupted as it was discovered that the state of New Jersey typically applied different rules at each session for electing U S Senators. 34 The Stockton controversy reached t he Senate floor, expanding into a debate over S Senate elections. Congress responded by passing a law in 1866 regulating the election of Senators in each state. This legislation required eac h house to hold a joint session, with the instruction to choose a candidate with majority vote. If no candidate received a majority, 31 Hoebeke, 1995. 32 Ibid. 33 A highly contentious Senate election kept a seat from Indiana vacant in 1857, however, no significant reform legislation reached the floor during this decade Byrd, Robert C., 1989 The Senate 1789 1989: Addresses on the History of The United States Senate Vol. 1 Washington DC: U.S. Government Printing Office. 34 Byrd, 1989: 391.

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24 a state legislature was to consider the election during each legislative day until a Senator was chosen. 35 One of the major criticisms of this legislation was that it did not allow for election by a plurality. 36 The new standard for state legislative selection led to the unanticipated consequence of deadlocked legislatures. The Stockton controversy is the perfect example of the unintended consequences of institutional reform. Unintended outcomes occur when institutional reform does not produce outcomes consistent with existing beliefs or practices within a particular policy paradigm. 37 Recent theoretical work by Paul Pierson on path dependency is an example of scholarship that privileges the role historical events, such as the Stockton case, play in shaping institutions, which in turn set a particular path in motion that eventually becomes resistant to change over time 38 However, over the long term, the eventual outcome may not necessarily be the most optimal outcome given the original choice set. given path, the cost of reducing course and purs uing a previously available policy becomes increasingly higher. clear path for how Senate elections would be conducted within the states. The expectation was that this new, unifor m standard would cause future disputed elections a 35 Haynes, 1906; Hoebeke, 1995. 36 I bid. 37 Cortell, Andrew P. and Susan Peterson. 2001. Limiting the Unintended Consequences of Institutional Change. Comparative Political Studies 34 (7): 768 799. 38 48. Pierson, 2002; 2004.

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25 rarity. The Senate, created a new Committee on Privileges and Elections, designed to handle any subsequent disputes should they occur. Of course, this legislation did little to curb disputed Senate electio ns and may have in fact, exacerbated the problem. Building Consensus for Direct Elections: Cases Before the Privileges and Elections Committee Chapter 4 provides a qualitative analysis of how the Elections Act of 1866 failed to reduce the frequency and dur ation of disputed U S Senate elections. Although this legislation appeared successful at preventing controversial Senate elections in the short term, deadlocks over Senate elections accelerated during the late 1880s and 1890s. In fact, this law had the ef fect of stalling legislative business within both state legislature and the U.S. Senate. The Committee on Privileges and Elections was appointed on March 10, 1871. 39 Chapter 4 focuses on the disputes were waged in earnest in state chambers in addition to t Disputes both at the state and national levels were now covered by the national press who chronicled these deadlocks in all its scandalous detail. Charges of bribery, often stemming from partisan motiv es, became rampant during this period. 40 It is interesting to point out that prior to 1872 there was only one case where it bribery of a Senator was proven. 41 One of the most famous bribery cases during this time was Senator William Clark of Montana who conf essed to spending over $140,000 to the legislators of his state. 42 39 Compilation of Senate Elections cases XXVII. 40 Wirls, Daniel, 1999. 41 Hoebeke, 1995: 91. 42 Haynes, 1938: 130.

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26 Chapter 4 also discusses the rise of an increasingly vocal minority in Congress whose frustration over these deadlocks spurred them to propose a constitutional amendment to have Senators ele cted directly by the people. An amendment calling for the direct election of Senators first passed the House in 1893, and five additional times before it eventually passed the Senate in 1912. 43 However, this chapter also reveals the institutional powerlessn ess reformers felt during the 1890s and early 1900s. Constitutional change would not come about through Congress, at least for the time being. By 1900, external forces were building that would place unprecedented pressure on the Senate to act. Chapters 5 a nd 6 will illustrate how reformers to build a coalition that would eventually bring constitutional change. Later Disputes and Calls for Reform Chapter 5 provides the pr ogressive era context behind the calls for reform, in addition to an assessment of the frequency and duration of disputed Senate electi ons from 1789 1913, develop ing a model over time. The Progressive movement evolved during the 1890s and emerged in full force during the 1900s and 1910s 44 Unlike the more agrarian and western origin of the Populists, the Progressives tended to emerge from midwestern states and from urban centers. Progressives also tended to be from the middle and upper economic classes in s ociety. The intellectual genesis behind 43 Haynes, 1938: Hoebeke, 1995. 44 Hofstadter, Richard 1960. The Age of Reform. New York: Vintage Books. Link, Arthur S., and Richard L. McCormic k 1983 Progressivism Wheeling IL: Harlan Davidson

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27 many progressive policies can be traced to the academics, attorneys, and journalists of this era 45 However, there were some significant contradictions within progressivism. Several policies were passed during this pe riod that restricted the participatory rights of specific groups. Some of the most egregious policies were voting rights restrictions such as poll taxes and racial segregation laws. 46 Other policies included restrictions on immigration and miscegenation law s. The prohibition movement in particular was viewed as targeting immigrant groups. Chapter 5 will also detail how the desire to disenfranchise minorities made its way into the debate over the 17 th Amendment. Specifically, there was a desire by some states to remove Article I Section 4, which gives the national government control over congressional elections. The states were clearly burdened by the deadlocks observed in the 1880s and 90s. These burd ens were compounded by the regulation of senate elections from the Elections Act of 1866 These controversies led to many calls for reform however the S enate remained intransigent in its unwillingness to act. However, pressure on the S enate did not abate. This chapter will reveal how outside pressures from the states and the national p ress continued to build on the S enate during the 1890s and 1900s. The press clearly played a critical role by chronicling both the Senate election deadlocks, and the corruption in the Senate as a whole. This coverage clearly sent a signal to the public that the Senate was awry and needed some kind of reform. A content a nalysis of articles in The Washington Post shows that close to half of the 45 Ibid. 46 Progressivism and the New Democracy. Amherst: University of Massachusetts.

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28 articles whose major theme was on Senate elections focused on the deadlocks and scandals. This analysis also revealed spikes in coverage during some of the highly salient election c ases covered in the previous chapter. Another interesting finding is that articles related to the proposed direct elections constitutional amendment tended to lag closely behind articles that focusing on deadlocks. This reveals that the press was somewhat responsive to the scandals and deadlocks in their calls for reform Pressure was also building on the Senate from another institution, the state legislatures. More than two dozen state legislatures invoked Article V of the constitution in calling for a con stitutional convention where the direct election of Senators would be addressed. 47 An Event History Analysis revealed that states who generated more coverage of scandals and deadlocks related to their Senate elections were more likely to petition Congress f or the constitutional convention. This clearly indicates that the deadlocks and scandals were taking their toll on the state legislatures. In desperation, the states wished to delegate control over Senate elections to the people. As discussed earlier, the decades after the Civil War saw an increasing role for party leadership in Congress. 48 The Republican caucus came under control of a faction of led by Senators Nelson Aldrich and William Allison. Although not nearly as strong as the party leadership struct ure developed by Reed and Cannon in the House, Aldrich 47 Haynes, 1930. Hoebeke, 19 94. 48 Binder, Sarah A. 1997 Minority Rights Majority Rule: Partisanship and the Development of Congress Cambridge: Cambridge University Press Rothman, David. 1969 Politics and Power New York: Athenium Press. Wirls, 1999.

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29 and Allison enjoyed considerable sway in setting the legislative agenda in the Senate. 49 Efforts at achieving institutional reform would not only need to undermine this power base, it would need to repl ace it. This will be addressed in full in Chapter 6. Tipping Points and Calls for Final Passage Chapter 6 examines the role played by a few critical events in the 17 th Long term, durable change in Congressional history is often facilit ated by the infusion of new members. This process is often triggered with the arrival of newer members who do not have immediate access to the power structure will try to fragment the existing structure in an effort to advance a new power base 50 This proce ss occurred in two steps. In 1904, Oregon was the first state to pass a direct election method for U S Senators. One feature of what became known as the Oregon Plan asks candidates for the state legislature to sign a pledge that they will support the cand idate for U S Senate who received a plurality in the statewide general election. Not only did this law make state legislators more accountable to the direct will of citizens, it also weakened state party control over Senate elections. 51 This was followed b y several other states that passed their own form of direct election legislation known as the Oregon Plan In 1904 the state of Oregon passed a 49 Hechler, Kenneth W., 1940. Insurg ency: Personalities and Politics of the Taft Era PhD Dissertation: University of Columbia. Merrill, Horace Samuel and Marion Galbraith Merrill 1971 The Republican Command 1897 1913 Lexington: University of Kentucky Press Schickler, Eric 2001. Disjointed Pl uralism: Institutional Inn ovation and the Development of The U.S. Congress Princeton: Princeton University Press. 50 Bruce Oppenheimer ed., Congress Reconsidered. New York: P raeger Books. In Political Science: The Science of Politics. New York: Agathon Press. 51 Eaton, Allen H. 1912 The Oregon System: The Story of Direct Legislation in Oregon Chicago: AC Mc Clurg and Co., 5.

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30 citizens became increasingly Senatorial elections. 52 This alliance of insurgent Republicans and Democrats were able to gain control of the legislative agenda after the 1910 election. 53 Senators recently elected by the Oregon Plan pr included a reform agenda. 54 After taking control from Aldrich led power structure, reform oriented Senators were able to implement parts of their agenda which included the 17 th Amendment. 55 more precisely, events occurring at decisive moments, creating a critical mass for a particular action to occur. 56 The scandal surrounding the appointment of Senator Lorimer from Illinois and state petitions calling for a constitutional convention can be described as potential tipping points that pushed Congress over the edge. The controversy over the election of William Lorimer achieved considerable coverage in the 52 Eaton, 1912. 53 Haynes, 1936. Heckler, 1940. Hoebeke, 1995. 54 Swift, 1997. Schickler, 2000. Similarly in the House, an insurgent group of progressive Republicans from the Midwest led a revolt against the strong power structure controlled by speaker Cannon (Heckler, 1940; Harrison, 2004; Schickler, 2000). 55 Heckler, 1940 Hoebeke, 1995 Schickler, 2 000. 56 Pierson, 2002 and 2004.

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31 press. 57 Lo controversial. This is partially attributed to the fact that some of the individuals who accused Lorimer of bribery later recanted. 58 Another important point is the strong relationship b etween the Senate vote to expel Lorimer and support for the 17 th Amendment. The Lorimer case was clearly viewed as presenting a political opportunity by amendment proponents. 59 By the end of 1910s, over 20 states invoked Article V of the Constitution, calli ng for a Constitutional Convention to address the Direct Elections issue. 60 Some scholars have argued that state petitions for a constitutional convention can be an effective means at provoking an unresponsive Congress to enact institutional reforms. 61 Janic e May has argued that petitions for a convention to propose constitutional amendments can be effective at provoking Congress to act. 62 By 1911, a total of 31 states applied, which was one state short of the two thirds required for a constitutional conventi on. 63 With only one additional state petition required for a constitutional convention, the power of individual Senators and the institution as a whole was now at risk. The Lorimer case notwithstanding, Senators who were previously disposed to 57 Hoebeke, 1995. Tarr, Joel A., 1971 A Study in Boss Politics: William Lorimer of Chicago Urbana: University of Illinois Press 58 Hoebeke, 1995: 92. Tarr 1971: 307. 59 Hoebeke, 1995. 60 Publius (17) No. 1, New Developments in State Constitutional Law. 61 May, 1987 62 Ibid. 63 Diamond, 1980

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32 opposing Dir ect Elections, were now in a strategic environment where shifting their position may have been necessary for holding on to power. Congress not only faced the possibility of a direct elections amendment, but possibly a plethora of additional changes to the constitution. Calls for a constitutional reference point bias to a losses frame. Congressional leadership, especially in the Senate may have observed a shift in what Prospect Th eory would call their value position once the petitions for a constitutional convention gained momentum. This may have been the final catalyst forcing leadership to come to terms with the obvious. The states had enough of the deadlocks and scandals. Congre ss had no choice but to act. Chapter 7 concludes this dissertation with a summary of the previous six chapters, implications for future Constitutional reforms, and directions for future research. What does the literature have to say about the effects of th e Seventeenth Amendment? What opportunities are there for future research into Congressional ethics reforms? Do the events surrounding the 17 th constitutional reforms such as the elimination of the Elector al College?

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33 CHAPTER 2 FOUNDATIONS OF THE EARLY SENATE Introduction As indicated in the previous chapter, the existing literature has provided a limited glimpse into the pressures facing the Senate in the decades preceding the 17 th understanding its developmental path over tim e. 1 back to the underpinnings behind t Convention of 1787. This chapter begins with a discussion of these philosophical underpinnings behind the framer s design. I reach back to the ancient philosophers who argued for a mixed government, consis ting of different classes of society which would be a check against one another. In particular, I briefly look at the Roman senate, providing the separation of powers from an ancient perspective. I also address how some prominent 18 th c entury philosophers either expanded or contradicted mixed government theory. Specifically, I constitution. It is imp ortant to look at these theories as they lead us to address why the founders created a Senate, why it gave it the specific powers it has, and most importantly, why Senators were elected by the state legislatures. 1 Theory and Society 29: 507 48; American Political Science Review 94: 251 267; Pierson, Paul 2004. Politics in Time: History, Institutions, and Social Analysis Princeton: Princeton University Press.

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34 Next, I turn to specific debates during th e Constitutional Convention of 1787. Examining these foundations will illustrate why the framers chose the election of political system. Mixed Constitution Theory Many of t he framers arrived at their views towards democracy from the theories of the early philosophers. Investigating these theories help us to understand the following questions. Why was the Senate proposed as an institution? Why was it given its specific powers ? How did the framers arrive at their decision to have Senators elected by the state legislatures? Thus, it is important that we examine these theoretical underpinnings t influenced the framers. It is possible to point all the way back to Plato, in our search for the founder s theoretical foundation s Plato demarcated government into three forms, monarchy (rule by one), aristocracy (rule by a few), and democracy (rule by many). The existence of each form of government over time would dissolve with monarchy devolving into tyranny, aristocracy into oligarchy, and democracy deteriorating into mob rule. Plato forms of government. 2 Mixed government theory was further developed by the historian Polybius in the a cyclical manner over history. In short, this cycle begins with a p rimitive society looking 2 R U.S. Bowling and Donald R. Kennon Athens, OH: Ohio University Press.

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35 for a strong leader to protect themselves from chaos and external enemies. Thus, they turn to a monarch. Over time, the monarchy becomes despotic and degenerates into tyranny. The monarch is then overturned by a group of nobles, wh ich in turned formed an aristocracy. This form of government would also become corrupt, with the nobles oppressing the common class, with the government devolving into an oligarchy. Next, the people would revolt and form a democracy. However, the wealthy c lass, according to this theory, would corrupt the people with bribes, leading to factions and social chaos. This social unrest would lead to calls for a dictatorship, thus repeating the cycle over again. In order to prevent this from occurring, according t o Polybius, it would be wise that a constitution provide for power to be distributed among these three classes in society. 3 It was the Romans, who were in part influenced by the earlier Greek writings who developed mixed constitution theory in practice. I n fact, Polybius looked to the Roman republic as the best example of a mixed government. It was this government, which ution would consist of Counsels, a Senate, and Tribunes. According to Polybius, and the Roman philos opher Cicero, it was the Senate that was the key institution in the Roman republic. According to Cicero, the Senate should 4 3 Ibid., 6. Hoebeke, 33. Polybius, The Rise of the Roman Republic, from The Histories, Ian Scott K ilvert, trans. (New York: Penguin Books, `986), pp. 307 310. 4

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36 Both the public and the consuls were dependent on the Roman Senate, due to it s dominanc e over the judicial system, it is control over the army, and its control over contracts. The Senate, was in turn, depende to veto any Senate legislation. 5 Polybius argued that these checks on power wer e what kept the mixed government going. Under this system each of the three institutions were given substantial power, thus satisfying the need for each to be prominent under the constitution. 6 s influence derived mostly from its ability to counteract and secure cooperation from the other and Wirls make a cogent point that Polybius s constitution was premised on a similar as sumption as the American framers. That deep seated selfishness must be accounted for in a political system. This was especially needed during times of peace and prosperity, where corruption and power seeking is more in play. 7 Modern Liberal Philosophers an d Constitutional Theory The framers were, of course also inspired by several modern liberal philosophers of the 18 th Century. The French philosopher, Baron de Montesquieu argued in support for a separation of powers, and his theories are considered by some to be compatible Wirls, Daniel and Stephen Wirls, 2004. The Invention of the United States Senate, Baltimore: Johns Hopkins Univers ity Press, 13. 5 Richard, 7. E.W. Walbank, A Historical Commentary on Polybius, 3 vols. (Oxford, 1957 79), 1:635 746. 6 Polybius 193, 6.44. Wirls and Wirls, 14,15. 7 Ibid.

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37 with mixed constitution theory. 8 The Spirit of the Laws he argues forcefully not only for a separation of powers, but for bicameralism as an independent executive and a bicameral legislature. In this model republic, the first house initiates all laws, the second house approves, and the executive enforces them. Montesquieu did not believe the common people had the ability to legislate direct ly, calling them 9 Hoebeke quotes ers would eventually design: The legislative body being composed of two parts, they check one another by the mutual privilege of rejecting. They are both restrained by the executive power, as the executive is by the legislative. 10 There is a distinct point of departure between Montesquieu and the earlier mixed constitutionalists. Wirls and Wirls point drawn primarily from the upper class, while its main purpose is to control the legislative excesses of the lower hous e. Unlike some other philosophers of his time, this argument does not assume a well informed public, devoted to the general good. Instead, it argues 8 Hoebeke, 34. 9 Ibid. Charles de Secondat, Baron de Montesquieu, The Spirit of the Laws, Great Books of the Western World, Thomas Nugent, trans. (Chicago: Encyclopedia Britannica, 195) vol. 38 p. 70 72.. 10 Hoebeke, 35. Charles de Secondat, 74.

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38 of diligence a mong the general public. 11 However, some theorists during this period argued for a limited government that contrasted with mixed constitution theory. The most prominent of these theorists were John Locke and Thomas Paine. Locke excludes any discussion of a second legislative house in his discussion of the right constitution. Locke, of course, is famous for arguing that all persons are equal in that none has the right to rule over another. Thus, any arguments for an aristocratic class, or what upper houses we re considered to be Locke, each individual is free to pursue their own happiness without giving a particular class an authoritative position. The role of the government, in regulate the law, and to protect the property and liberty of the individual. Locke does not prescribe a specific institutional framework. Instead, he leaves it up to individual societies to decide the proper institutional arrang ements according to their own judgement. 12 Paine takes on mixed constitution theory directly. According to his ju dgment, America would never need a mixed constitution, due to the fact that he did not view any conflict between personal and public liberty. I n fact, he viewed interests in society to be relatively homogenous. Paine argued for a more simple form of government, one that 11 Wirls and Wirls, 21 22. Montesquieu 1989, 2.2 3, 8.2. 12 Locke, 1980, sec. 129, 132 133; Wirls and Wirls, 18.

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39 the simplest and least inhibitive means of en 13 Thus, there was no need on their liberty. 14 Senates in Early St ate Legislatures How did these theories manifest themselves within the early senates of the late 18 th c entury? Although there was no particular pattern in constitutional design, each state drew from the above theoretical underpinnings in its own way. Sinc e many of the framers who attended the Convention of 1787 criticized the failings of these institutional designs, it is important to discuss some of them, and why they were implemented. Eleven states had a bicameral legislature, however, each had their own way of separating the two chambers. Most states had additional property requirements to be eligible to vote in a senate election. Some states had larger s enatorial districts, whereas others had specific property holding requirements in order to serve. senate was elected indirectly through the lower house. 15 provided for a s elected an electoral college, who voted for an eight member senate. Many st ates had a 13 Paine, Thomas Common Sense (New York: Pengui n Books, 1968), p. 67 69. Hoebeke, 36 37. 14 Ibid. 15 Hoebeke, 37 39. Wirls and Wirls, 44 45. Anderson, 1992; Wood, Gordon S. 1972 The Creation of the American Republic: 1776 1787 Chapel Hill : University of North Carolina Press.

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40 weak executive whose powers were limited, some did not even have a veto. 16 Overall, Hoebeke found the Maryland Senate to be more protective of property, more responsive to the Continental Cong ress, and less responsive to than lower house. 17 This is clearly government. Wirls and Wirls argue that although these states had a mixed governmen t, they were quite distinct from the type described by Montesquieu. The intent behind these governments was rooted more in restraining the executive and preventing tyranny. Any provisions for an upper chamber that would check the masses were simply an afte rthought. 18 This is even more evident in the designs of the two unicameral states. Georgia and Pennsylvania both had unicameral governments. The government in Pennsylvania in particular was one of the more innovative states in their design. Pennsylvania had seven years to vote on the constitutionality of various laws. This branch also had an oversight role, looking into any abuses of power, or violations of the separation of powers 19 Pennsylva nia also had a provision stating that public office was reserved for 20 Clearly, there was sentiment in 16 Hoebeke, 37 39. Wirls and Wirls, 44 45. 17 Hoebeke, 39. 18 Wirls and Wirls, 42 43. 19 the legislatures Wood, 1972; Wirls and Wirls, 43. 20 Ibid.

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41 Pennsylvania that only a certain class of society can be trusted with government service. In this design, the pe ople elected a delegate from the upper class to represent them. This constitution appears concerned more with checking against potential tyrannical power than any expression of the popular will. So, how did the founders view the constitutions in the states and how did they impact their designs for the Senate? This issue will be addresse d in a later section. I turn now to the general debates over the Senate during the constitutional convention. Debates in the Constitutional Convention In the next few pages, I will review the arguments posed by the framers during the constitutional convention as it relates to the design of the Senate. I will also discuss how the founders drew from constitutional designs implemented in the states. In this discussion, I suggest how theory of path d ependency applies to this period. I s theory, then provide examples of how decisions were made at critical times during the founding that had profound implications for Congressional developm ent. emphasizes the importance early critical decisions that usually ha ve a random chance element in them Early on, there are a range of outcomes where actors must make a particular choice. Pierson refers to this as multi ple equilibria. During this process, there are critical moments in time, where a particular decision is made, that is difficult to reverse and sets in motion a series of successive events over time. These series of events that reinforce the earlier decisi on is what Thorpe, Francis N., ed. 1909 The Fe deral and State Constitutions Colonial Charters and Other Organic Laws of the United States 7 vols. Washington DC: Government Printing Office., 5: 3084.

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42 sequence of events at the early stages of development. This theory also acknowledges that the conditions behind the design of a particular institution or poli cy are also critical to the availability of options available to decision makers. 21 As previously mentioned, the convention of 1787 took place only a decade after 1971 classic work presents a provocative argument that some of the framers felt rather insecure about some of the social changes resulting from the American Revolution. The revolution brought the promise of social mobility for many. According to Wood, this was not only felt in the economic realm, but was even more pronounced in the political realm Individuals from all walks of life became empowered to participate in the political process in ways that were considered unthinkable under the British regime. 22 America, of course, never had the type of natural aristocracy as was common in Europe. However, the revolution unleashed among many, a sense that mobility among the social classes is possible. Some of the founders felt quite concerned with the prospect of individuals for whom they perceived as co ming from a lesser station in life, obtaining political positions of responsibility. A cause of anxiety was the increase in contentious politics in the states. Some during this period even held the view that a oviding common citizens with access to too much power in a democracy 23 More than anything else, it was obvious that the new nation was having difficulty adjusting to self rule. 21 Pierson, 2000. 22 Wood, 1972. 23 Ibid.

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43 During this period leading to the convention, groups were polarized into two major camps over reforming the government. Some wanted a strong central government, while others wanted the states to have more control. The Federalists seized control over the debate in two ways. First, some of those opposed to the new constitution (Anti Federalists) did not even show up to the Convention. Thus, they abdicated their ability to voice their arguments. Second, the Federalists were strategic in how they refuted the Anti Federalist fears in the public debate after the Convention. The Federalist s assuaged the fears of their rivals by arguing that the source of political power in the new republic was derived from the people and not its rulers. This was a new dynamic where elected officials are agents of the general public. Thus, the principle of F ederalism was born, argued by Madison in the Federalist papers where both the federal and state governments serve as agents of the people, however with each level of government serving different purposes 24 Since the people were now the source of politica l power, they also had the discretion for how to delegate it. This provided Federalists with their main rebuttal for concerns over the division of powers between the national and state governments. The concept of Federalism became easier to contemplate, wi th the people merely delegating certain powers to their state government and others to the national government. This case was made even stronger by reiterating that the people were also empowered to change the allocation of said powers between the said gov ernments. 24 Wood, 1972: 546.

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44 The Great Compromise I turn more specifically to the debate over the structure and powers of the upper legislative body. Daniel and Stephen Wirls describe the most critical moment during the convention was the compromise over the size of the uppe r house and the apportionment of is members among the states. 25 Surprisingly, there was a general consensus among the delegates to have a bicameral national legislature. Even James Wilson, who was a delegate from unicameral Pennsylvania voiced support f or two legislative chambers: I f the legislative authority be not restrained, there can be neither liberty nor stability; and it can only be restrained by dividing it within itself, into distinct and independent branches. In a single house there is no check . 26 I n fact, Madison notes that when the bicameral legislature came up for discussion it provoked virtually no debate. 27 Wirls and Wirls argues that this agreement was based on the assumption that a Senate was critical for ensuring a balanced l egislative process. Wirls and Wirls also find that a small chamber and an independent selection 28 Longer te rms would also bring institutional memory that was not anticipated for the House. According to 25 Wirls and Wirls, 1999. 26 Pennsylvania did vote against two branches, mostly out of deference to Benjamin Franklin. Wirls, 76 77. Records, 1:254 27 Ibid. 28 Wirls and Wirls, 79.

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45 Wirls and Wirls, that would balance against the periodic whims of the masses. 29 The Sena the executive. Some of the framers felt that each house would annul the choice of the other. Another concern was that an executive elected by the Senate would be controlled by the stat es. This new hesitation for providing the legislature the power to elect the executive resulted in the creation of the Electoral College system 30 Although the need for a Senate was almost universally accepted among the delegates, one area of contention was whether each state would have equal population. The main line of conflict was between the larger states (and states projected to become larger sates), who supported proporti onal representation in both houses, and the smaller states such as New Jersey who wanted one vote in the house per state. upper house. Madison, in particular, was vehemently opposed to a Senate with equal representation among the states. The proponents for equal representation won the debate as it became apparent that a Senate with proportional representation was 29 Wirls and Wirls, 78 82. 30 Ibid., Anderson 1993

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46 incompatible with a small Senate. Interestingly, the district proposal was defeated due to the fact that the proposal was linked to the popular election of Senators. 31 Debate Over Senate Elections Although not debated nearly as much as other aspects of the constitution, the issue of how Senators would be selected generated a variety of proposals and some heated discussion. Some delegates such as Roger Sherman and Elbridge Gerry were even opposed to direct election of the House. However, proponents of direct elections such as Madiso n and Wilson won with the argument that the people need some kind of direct connection to their representatives. 32 There was only minimal support for the direct election of Senators among the delegates. Madison was a fervent supporter for direct election b y the people, arguing : T he great fabric to be raised would be more stable and durable if it should rest on the solid foundation of the people themselves than if it should stand merely on the pillars of the legislatures. 33 Wilson is considered to be the bigg est supporter for proposing that all white male voters in a state be allowed to vote for a Senator. Wilson was also a proponent of the important for both chambers to have the same constituency, since if they did not then they would have diverging interests which would cause disagreement and deadlock. 31 Popular elections were viewed as the most logical mode since multiple states would be selecting a Senator in a district. Wirls 87 89. 32 31. 33 Report No. 125., 55 th Congress, 2 nd Session. U.S.

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47 for some kind of indirect election of Senators 34 Consistent with the prevailing view regarding popular rule at the convention, delegate Elbridge Gerry claimed : The evils we experience flow from an excess of democracy. The people do not lack virtue, but are the dupes of pretended patriots 35 George Reed of Delaware proposed that the Senate be appointed by the executive from a list of nominees provided by the legislature. This proposal did not receive any support and was not even seconded. 36 Another proposal receiving little support was election by the lower house. One of the reasons this proposal failed was that it was tied to proportionality, along with the fact that it would eliminate the independent nature of the upper body, thus defeatin g its purpose. 37 On June 7, John Dickinson moved that Senators be selected by the state would lead to cooperation between the state and national governments. 38 Wilson, on the other hand, was still hoping for Senators to be directly electe d by the people. A bout the inherent corruption that can occur in statement was prophetic of events more than a century later: 34 Byrd, Robert C., 1989 The Senate 1789 1989: Addresses on the History of The United States Senate Vol. 1 Washington DC: U.S. Government Printing Office Haynes, George H. 1906. The Election of Senators. New York: Henry Holt and Company. 1938. The Senate of the United States: Its History and Practice, Volume II. Reprint. New York: Russell and Russell. 1960. Murphy, 32 33. 35 Byrd, 1989. 36 Report No. 125., 5 5 th Congress, 2 nd Session. U.S. 37 Wirls, 74. 38 Report No. 125., 55 th Congress, 2 nd Session. U.S.

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48 The great evils complained o f were that the State legislatures ran into schemes of paper money, etc., whenever solicited by the people, and sometimes without even the sanction of the people. Their influence, then, instead of checking a like propensity in the National Legislature, may be expected to promote it. 39 Several points were made during debate convincing a large majority of the delegates that selection by the state legislatures was the proper mode for electing Senators. Dickinson pointed out how crucial it was to preserve the ag ency of the states in the national government. Gerry argued this would provide a needed representation for the 40 Overall, arguments supporting the election by the state legislatures centered on two themes. The first, was to preserve the interests of the wealthy and property holders against the masses. This point of view was supported by actions of the several state legislatures during the era of the continental congress. This sentiment also supported the view that the Senate should be an American House of Lords, with Senators of superior character and prestige. The second argument was to preserve the representation of the state s 41 These arguments ruled the day and the convention overwhelmingly approved Senate election by the state legi slatures. The above arguments even persuaded Madison, who forcefully defended the mode of electing Senators during the ratification debate. In Federalist No. 62, Madison agreed stati ng : It is equally unnecessary to dilate on the appointment of Senators by the state legislatures. Among the various modes which might have been devised for constituting this branch of the Government, that which has been 39 Ibid. 40 Ibid. 41 Murphy, 33 35.

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49 proposed by the convention is proba bly the most congenial with the public opinion 42 Yet, t here were two issues in the ratification debate regarding the Senate that would linger until the Seventeenth Amendment passed. The first issue of contention focused on Article I Section 4 of the const itution. This section gives Congress the power to r egulate c ongressional elections and specifically reads: The Times, Places and Manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; bu t Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators The above passage was widely criticized by the Antifederalists as being a Trojan horse for the national government to usurp power. This clause w ould also lead to 43 M any Southern states wanted to eliminate this clause as a bargaining chip in order to seize control over Senate elections. 44 Another point of contention dealt with the inability of state legislatures to give instructions to, or recall a Senator. As will be observed in the next chapter, this clearly reduced ions for the Senate. Conclusion This chapter demonstrates how the founders drew from ancient philosophical foundations when designing the federal government. A mixed constitution, one that balanced and checked each class of society was a clear goal during the convention of 1787. Arguments during the constitutional convention were also drawn from 42 Byrd, 390. 43 Murphy, 46. 44 American Political Science Review 49: 452 69.

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50 experiences within the state governments, and the desire to avoid what was perceived to be some of their failings. Debate over the Senate in particular was based o n preserving this mixed system in general, and protecting the privileged classes in particular. There was also a strong desire to give the states certain power in the national government. Thus, a Senate removed from the people, one that checks the lower ho use and provides representation to the states was created. However, this design set in motion a series of events that undermined itself and the ability of the states to se lect its Senators.

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51 CHAPTER 3 DEVELOPMENT OF THE EARLY SENATE Introduction of 1787. Based on these origins, rooted in the debates of 1787, why did the Senate evolve in the manner it did over the first 130 years of its existence? Why were disputes over Senate elections rare prior to the Civil War? In order to fully address this question, one must examine the patterns of institutional development in the Senate. This chapter will briefly review the institutionalization of the early Senate. Daniel and Stephen Wirls explain Senate development and instit utionalization as based on the expectations and conditions from the Convention of 1787. These expectations and conditions were discussed at length in the previous chapter. 1 One potential reason why disputed appointments did not reach a high level of salien ce during the first half of the 19 th c entury is due to the fact that strong party and committee structures had yet to emerge in the Senate. This discussion will be followed by a review of some of the early Senate election cases and calls for a constitution al amendment. Finally this chapter turns to the pivotal case of James Stockton which spurred the first major reform of Senate elections in 1866. The First Senate business was conducted. This was because only eight out of the 22 Senators from the 1 (1968) classic discussion of the House. They examine how the early Senate resolved uncertainty in norms and procedures, creating their analysis by po electoral relationship with the public, while diverging from the House with its internal rules.

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52 states that ratified the constitution were present, thus there was no quorum. This was especi ally important since the Senate was constitutionally responsible for counting the electoral votes for the first President. Substantial absenteeism continued for several days leading to several Senators and other leaders to voice their disproval publically. 2 Connecticut Senator Samuel Huntington wrote: I know not but that particular embarrassments in some states may be sufficient excuse for delay to this time; but did those states duly consider the consequences: that at this important crisis earnest expectat ion may grow into impatience and finally change to a loss of confidence, and distrust by long disappointment. 3 The Senate finally secured its first quorum on April 6, 1798 with the arrival of Richard Henry Lee of Virginia. 4 The lack of a full Senate will b e a major theme in the coming chapters. B etween 1789 and 1801 94 men served in the Senate These were individuals of the highest esteem of the time. Eighteen were members of the Con stitutional Convention, 42 were legislators in the Continental Congress, a nd nine were former Governors. The first president pro tempore was John Langdon, a former speaker of the New Hampshire assembly. 5 Up until the Third Congress, the Senate actually met in secret. This was actually quite common for legislatures during this p eriod. 6 Secret proceedings were so taken for granted that it was not even written into Senate rules. Several state legislatures 2 It should be mentioned that the House did not secure its first quoru m unti l April 1, 1789. Byrd, 4. 3 Ibid. 4 Ibid. 3 4. 5 Ibid. 5 7. 6 Wirls and Wirls, 166.

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53 disapproved of the secret proceedings as it failed to satisfy their need for influence over their Senators. 7 The push against s ecrecy began to take hold as the Jeffersonian Republicans were in the ascendency This was directly related to the desire of southern state legislatures to assert more control over their Senators by seeing that they did not vote for Federalist policies. In December 1789, the first instructions to open Senate proceedings arrived from Virginia, North Carolina, South Carolina, and Maryland. 8 The tide began to turn as the press would ig nore the Senate, calling just the House as The Federalists, who were losing control in the Second and Third Congress began to look at an open Senate differently, as an opportunity for shaping public opinion through a large platform. 9 The Senate finally opened its proceedings after experimenting with it during the deba were questioned due to the fact that he did not have nine years of U S citizenship as required by the constitution. Gallatatin was eventually ruled ineligible b y a partisan vote of 14 12. 10 The debate over, and eventual overturning of secrecy is the first example of the Senate shifting to pressure from a defensive posture. The Federalists, who originally were the main backers of the secrecy policy realized that they were los ing power. The pressure from the new Republican Senators, along with the realization that the public was not behind them, may have caused enough Federalist votes to shift over 7 Ibid. 167. 8 Ibid. 168. 9 Ibid. 169. 10 Ibid 169 170

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54 the secrecy question. Theoretically speaking, there are two related explanations for how this occurred. First, as Smith and Fridkin demonstrate, members of the minority party in a legislature will often turn to measures that weaken an institution, with the end goal of gaining more institutional power. Therefore, minority party members are basically 11 Additionally, Therault argues that minority party members are more responsive to public opinion when it comes to rules changes in Congress. More electorally vulne rable members, in particular will be susceptible to constituent demands. 12 This is a pattern that will repeat itself, most importantly in the eventual passage of the Seventeenth Amendment. In order to understand the in stitutionalization of the Senate, it is important to briefly discuss how diverged from that of the House. The early Senate quickly attempted to assert its superiority over the House. As discussed in the previous chapter, som e viewed this new Senate as an American version of the British House of Lords. 13 Elaine S wift quotes one Senator referring to his colleagues as 14 A commi ttee was formed in the First Congress recommending 11 Competition and th American Political Science Review `02/: 333 350. 12 Therault, Sean M., 2005. The Power of the People: Congressional Competition, Public Attention, and Voter Retribution Columbus: Ohio State University P ress. 13 Swift, Elaine., 2002. The Making of an American Senate Ann Arbor: University of Michigan Press. 14 Ibid. 61.

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55 15 This was also evident in how communication was conducted between the chambers. Senators required that two Ho use members bring communication to the Senate, whereas the Senate secretary would communicate with the House. Controversy between the chambers erupted when the Senate attempted to enact a pay differential with the House. 16 Each chamber was empowered to cha rt its own internal rules under Article I of the constitution. The Senate originated as a much smaller body, with only twenty six members. These facts presented both the Senate and the House to embark on their own separate path s towards institutionalization and development 17 This initial divergence in internal rules within the two chambers set in motion a separate set of norms and procedures for each chamber that were reinforced over time 18 Sarah Binder points towards the treatm ent of the previous question rule as a major point of divergence between the two chambers The Previous Question rule allows for a simple majority to call the question and cut off further debate without additional amendments. 19 Invoking this dilatory mea sure has provided House majorities leverage for controlling the legislative agenda and debate. In 1806 the Senate abolished the previous question 15 See Murphy, 53. 16 Byrd, 9. Swift, 62. 17 Binder, Sarah A. 1997 Minority Rights Majority Rule: Partisanship and the Development of Congress Cambri dge: Cambridge University Press 18 American Political Science Review 94: 251 267. Pierson, Paul 2004. Politics in Time: History, Institutions, and Social Analysis Pr inceton : Princeton University Press. 19 Binder, Sarah A. and Steven S. Smith 1997. Politics or Principle? Filibustering in the United States Senate Washington DC: Br ookings Institution Press., 14.

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56 rule, setting in motion a tradition for unlimited debate 20 By contrast, the House instituted the previous ques tion rule during the War of 1812 as a means for agenda control by the majority faction. 21 A s the House developed as a partisan institution more quickly, unlimited debate in the Senate further facilitated norms of individualism within the smaller body 22 With out a strong partisan incentive in the Senate, members in the early 19 th Century were less likely to use precious legislative time to challenge the credentials of new members. Relations between the Senate and State Legislatures Tension between the Senate a nd individual state legislatures emerged over the rights of instruction and recall. 23 In a departure from the Articles of Confederation which gave state legislatures the powers of instruction and recall no such previsions existed in the constitution of 17 87. 24 Although largely ignored, the state legislatures proceeded to send instructions on a host of issues. Many states protested the fact that the Senate met in secret during the early Congress. 25 By 1794, the Senate finally acquiesced, and opened its procee dings to the public. This was likely the earliest instance where the state legislatures attempted to gain leverage over the Senate. In her work on the early Senate, Swift quotes the following instructions from the Maryland legislature to its Senators that precisely makes this point: 20 Ibid. 39. 21 Ibid, 72. 22 Binder, 1997. 23 Swift, 57 58. 24 Ibid, 57. 25 Another issue where Congress did act on instructions was the 12 th Amendment which addressed the conduct of pres idential elections. Ibid.

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57 We consider the responsibility of the representative to the constituent body not only to be necessary in the House of Representatives, but equally so in the Senate . We therefore instruct you, to exert your abilities t o effectuate an object so generally desirable. 26 Between the Eleventh and Twentieth Congress, state legislatures attempted to instruct their Senators at an increasing rate. 27 Controversy erupted over instructions during the debate over the Bank of the Unite d States during 1810 and 1811. This failing to obey legislative instructions relating to the bank. 28 Wirls and Wirls attribute the use of instruction and recall to the ri se and fall of partisan majorities in the state legislatures. Probably the most prominent instance when a legislature did not re elect a Senator for failing to obey an instruction was John Quincy Adams in 1808, who suffered embargo. 29 State legislatures viewed the threat of recall as an opportunity to leverage power over their Senators, and increased the use of instructions considerably. Instructions were eventually ineffect Senator. Swift points out that state legislatures had high turnover in the early 19 th c entury, thus Senators were less likely to view the failure to obey an instruction as a threat to their ree lection. 30 Therefore, a Senator had a minimal incentive to obey 26 Ibid, 57 58. Votes of the Proceedings of the House of Delegates of the State of Maryland, November S essio n, 1793 (n.p., n.d.), 104. 27 Ibid, 120. 28 This became known as the Virginia Doctrine of Instructions, used primarily in the South. For more see Ibid, 121. 29 Wirls, 198. 30 Ibid, 121.

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58 legislative instructions due to the fact that many members of the legislature would have left office by the expiration of the six year Senate term. This controversy over instructions represents a recurring theme that will be observed in the relationship between the Senate and the state legislatures. This theme begins with a state legislature eager to gain leverage over the Senate. This is followed by a response by the Senate where indi vidual Senators act in a way that is protective of the institution, leading to an increase in institutional power. By the 1830s, Jeffersonian Democracy was in full swing. Candidates for state legislature began to actively campaign for popular support. A ne w party system began to emerge, with candidates up and down the ballot running on a party ticket. Senators legislative candidates. These legislators, in turn, naturally fe lt obligated to support their Swift def tly points out how this new syst em no longer privileged Senator s relationships with individual state legislators, but rather privileged partisan affiliation in relation to the state legislature as a whole. 31 Early Disputes and Proposals for Reform During the early 19 th century, a small number of proposals relating to Senate elections were submitted to Congress. None were given any serious c onsideration. The first constitutional pro posal reforming Senate elections to be determined by the voting population of each state occurred in 1826. This resolution by Representative Henry Storrs of New York was quickly withdrawn after it was submitted. Re presentative Wright 31 Swift, 165.

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59 of Ohio proposed an amendment in 1829 that not only have given states the power to decide on their own for choosing its senators, it would have reduced a Senate term to four years 32 As a member of the House, Andrew Johnson not only off ered an amendment for the direct election of Senators, but also that would have also provided for the direct election of the President and Vice President. Johnson would continue his push for reform by offering a direct elections amendment as a U.S. Senator in 1860. This measure did not make it out of committee. 33 The paucity of proposals relating to the manner in which Senators were elected could have been due to the fact that legislative appointments went rather smoothly at that time. However, several case s developed during the first half of the nineteenth century, mostly over questions pertaining to gubernatorial appointments or a incumbent. Another series of cases focused on residency requirements. Varying standards among the states for electing Senators had been established during this period. 34 Throughout this period, there was no effort to assert Article I, Section Four which gives Congress the power to regulate t he time and manner of electing S enators. The first precedent setting case occurred in 1794, involving Senator Kensey Johns of Delaware. Johns was appointed by the Governor after the resignation of the incumbent George Reed in December 1793 The Delaware legisla ture disputed this 32 unpublished Ph.D. dissertation, Syracuse University; 2006 133 134. D dissertation, (University of California at Berkeley; 1936 10 13; Haynes, 1906. 33 While President, Andrew Johnson also proposed the election of President and Vice President by popular vote, as well as a federal judicial term of 12 years. Ibid. 34 Haynes, S enate of the United States, 81.

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60 appointment since it was in session during the time, and chose not to appoint anyone to fill this vacancy. 35 Article I, Section three of the U S Constitution empowers governors with the ability to appoint senators provided that a legisl ature is not in session. It also states that the legislature must fill the vacancy upon returning to session. The Johns case proved to be of profound importance, as it was cited often in subsequent cases dealing with gubernatorial appointments. The Senate ruled not to seat Johns due to the fact that the legislature was in session while the gubernatorial appointment took place. 36 1836. This case is relevant since it was one of t he first whose outcome was determined by a party line vote. In October, the Arkansas legislature appointed Ambrose Sevier and class whose term ended the following March With the legislature in recess, the governor appointed Sevier to a new term. Therefore, this was the first case where a governor appointed a senator in anticipation of a vacancy. The Judiciary committee, which had jurisdiction over senate elections in th e early 19 th Century, ruled Sevier to be entitled to his seat under Article I Section Three, declaring, and if vacancies happen by resignation or otherwise during the recess of the legislature of any State the executive thereof may make temporary appointme nts until the next meeting of the legislature, which shall then fill such vacancies. 37 35 Taft, George S., Compilation of Senate Election Cases from 1789 to 1913.Senate Documents Vol. 9 62 nd Congress, 3 rd Session. 36 Ibid. 37 Ib id., 7 9.

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61 19. This vote was determined primarily along party lines with 23 out of 29 Democrats vot ing in the affirmative while 13 out of 16 Whigs voted against seating Sevier. 38 During the 1850s, a series of disputed Senate election cases emerged that focused on a host of procedural issues within individual state legislatures. Partisanship would be a significant factor in the determination of these cases as well. As the decade ensued, such cases increased in both in their complexity and frequency. These series of disputed senate cases, along with the strain it placed on the Sena Committee, led Congress to invoke Article I, Section Four empowering it to regulate the times and manner of Senate elections. One rather complicated case surrounding the resignation and death of Henry Clay occurred in 1852. In December of th e previous year, Clay issued his resignation to the Kentucky legislature effective September, 1852. Within weeks, Archibald Dixon was appointed by the Kentucky legislature s governor appointed David Meriwether as Senator. Meriwether took his seat on July 15 and held it until Congress adjourned in late August. When the Senate was back in session in December, Meriwether did not return, and Archibald Dixon presented his creden tials. A few Democratic Senators objected to the appointment of the Whig Dixon Senator. The seat remained vacant until a couple weeks later when the Senate voted 27 to 16 to admit Meriwether. The final vo te fell along partisan lines even though this was the period when the Second Party System was dissolving. All 19 Whigs and 3 Free 38 Ibid.

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62 Soilers who voted did so in the affirmative, whereas 16 out of 21 Democrats voted Nay with 15 Democratic abstentions. 39 The above case presented the Senate with the following questions. First, can a Senator choose a date when his resignation becomes effective? Second, can said resignation be filled and by whom ? Third, can such an appointment be superseded by a th prior to his designated resignation? Precedents were applied to the first two questions, with the Senate ruling in the affirmative. The last question never occurred before Congress. The Senate ruled case applies o end of the original Senate term Therefore, Dixon was entitled to his seat. 40 In the late 1850s, there were two disputes involving the state of Indiana which became important, precedent setting cases, as we will see in the next chapter. In February 1857, the Indiana state legislature elected Graham Fitch for the Senate term credentials were presented to the Senate, there was a protest that Fitch and Bright 41 legal session of the Indiana legislature. The state legislature required that a joint session of the legislature (referred to at the time as a convention) to meet for the business of publishing the votes for Governor and Lieutenant Governor. On January 12, 39 Ibid, 13 15. 40 Ibid. 41 Compilation of Senate Election Cases, 244.

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63 1857, this joint session a djourned until February 2. The state s enate proceeded by passing a resolution protesting and disavowing any involvement with the convention. A minority of Senate members but a majority of both houses met for an adjourned meeting where Fitch and Bright were elected. 42 Was this a legal election? Oddly enough, there was no law in the State of Indiana prescribing for the time and place of Senate elections. This lack of any standard would obviously lead the state to a dispute such as the Fitc h Bright controversy. 43 The credentials for both Fitch and Bright were then referred to the Senate Judiciary Committee. A fter some deliberation, the committee and the full Senate ruled that Fitch and Bright were entitled to their seats. 44 This was not the en d of controversy for Fitch and Bright. In January 1859, the legal Senators. The legislature was basically trying to undo the selection that was made two years earlier. 45 The case was referred to the Judiciary Committee. The committee ruled that the earlier Fitch Bright ruling was final due to the fact mentioned earlier that Indiana had no law prescribing the manner a legislature elected U.S. Senators. T herefore Senate seats were not vacant, thus the Lane McCarty appointment was invalid. The minority in the Judiciary committee wrote that the earlier decision was not final and recommended the Fitch Bright case be reopened. On February 14, 1859 42 The majority report of the U.S. Senate Judiciary committee did mention that the group of legislators that elected Fitch and Bright w ere Republicans. Ibid 244, 248. 43 Of course, Congress has the power under Article I Section 5 to regulate the time, place, and manner of Senate elections. 44 Ibid. 45 This clearly indicates a change of partisan hands in the Indiana legislature in 1859. There is no mention in the committee report or floor arguments regarding a change of partisan hands in the Indiana legislature during the 19 th Century, the Indiana Gazette does not include a rticles prior to 1862.

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64 the full Senat e by a vote of 30 to 15 and 41 abstentions concurred with the Judiciary C 46 As expected, this vote fell along party lines, with all the Yea votes coming from Democrats and the small Ame rican party, whereas all Republicans either voted against the minority report or abstained. The Indiana cases set important precedents that will be observed in the next chapter addressing questions relating to when a Senate election case is considered to b e closed, as well as how to handle the presentation of multiple Senate delegations. The Stockton Case and The Elections Act of 1866 The case that served as sort of a tipping point regarding Senate appointments in Congress occurred in 1866. It involved Joh n Stockton of New Jersey. The New Jersey statute under which Stockton was elected required that a majority of the votes of the members elected to both houses of the legislature and any candidate receiving a plurality of votes of the members present shall be declared elected. 47 own vote breaking the tie between him and the other leading candidate The Senate Judiciary Committee ruled legislature were in compliance with the state constitution. However, controversy erupted as it was discovered that the state of New Jer sey typically applied different rules at each 46 Ibid. 47 See Haynes, 1930: 82.

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65 session for electing U S Senators. 48 election was ruled improper and he was unseated. 49 Congress responded to the Stockton case by passing a law in 1866 regulati ng the election of Senators in each state. The statute invoked Article I, Section Four, which of Congress. Instead of the series of precedents set by previous election case s, there hich each state legislature was to elect its Senators. The debate in the Senate was brief. Senator Willard Salisbury Jr. of Delaware was le interference by the Federal 50 However, several issues did emerge in the debate over the elections bill of 1866. The first was whether voting for Senator should be by voice vote or secret ballot. There was some resistance to this provision, as some senators argued that a viva voce vote would change the practice of many states that used a secret ballot. The counterargument was that electing a senator was part of legislative business, and that citizens of a state had the right t o know who their representatives voted for. The latter argument prevailed in the final legislation. 51 48 Congressional Globe, Thirty ninth Congress, First Session, 1635 1639 Byrd, 1989. 49 See Haynes, Senate of the United States, 82; Taft, Compilation of Senate Election Cases, 264 270; Murphy 68 69. 50 See Ha ynes, Election of Senators, 83. 51 See Haynes, The Senate of the United States, 84, Congressional Globe, Thirty ninth Congress, First Session, 3727 3734, Taft, Compilation of Senate Election Cases, xv xv1, Murphy The Politics of Reform: Direct Election of Senators and Democracy in the Prog ressive Era, 69 71.

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66 The next major issue was whether an election should be by a simple or concurrent majority. After some debate, it was decided that the first vote for Senato r should have a concurrent majority, and if no candidate was elected, each succeeding vote would require a simple majority. In his work on the history of the U S Senate, George Haynes attributes responsibility to this provision for many of the subsequent deadlocks, as it empowered a minority in a legislature to block a nomination. 52 Under this scenario, minority parties could potentially hold up legislative business as a form of ransom to force a majority party to acquiesce. Such concessions the minority p arty may achieve by staging a successful deadlock could be the appointment of a Senator who is lative calendar. As demonstrated by Smith and Fridkin, as well as Therault, minority parties becomes more precarious, the more likely a minority party is to pursue such a s trategy. 53 The third major issue pertained to how much time a senatorial election should be allowed to delay normal legislative business. The final bill required that a single vote be taken in joint session each d ay until a Senator was elected. 54 The electio ns bill passed the Senate after only one day of debate by a vote of 25 to 11, with 13 Senators absent. Eighteen out of twenty nine Republicans voted in the affirmative while the Eight Democratic Senators who voted were evenly split. This vote 52 Ibid. 53 Smith and Fridkin, 336. Therault, 2005. 54 Ibid.

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67 took place du ring the early days of Reconstruction, and the Republican party held an overwhelming majority at the time. The House passed the legislation under the previous question and no debate. This legislation required that on the second Tuesday after the org anization of a legislature, each house was to meet separately, and by a viva voce vote nominate a candidate for Senator. On the next day, there was to be a joint assembly to canvass the votes. If a candidate received the majority of both bodies, he has to be declared Senator. If no candidate received a majority, a state legislature was to consider the election during each legislative day until a Senator was chosen. 55 Did the reform of 1866 solve the problem of disputed Senate elections? The next two chapte rs will illustrate the answer is a resounding no. One of the major criticisms of this legislation was that it did not allow for election by a plurality. 56 The new standard for state legislative selection led to the unanticipated consequence of deadlocked le gislatures. This unanticipated consequence is a facet of what some political scientists call path dependency. The Stockton controversy is the perfect example of the unintended consequences of institutional reform. Unintended outcomes occur when instituti onal reform does not produce outcomes consistent with existing beliefs or practices within a particular policy paradigm. 57 Recent theoretical work by Paul Pierson on path dependency is an example of scholarship that privileges the role of historical events, such as the Stockton case, play in shaping institutions, which in turn set a particular path in motion that eventually 55 See Haynes, 1906; Hoebeke, 1995 and Murphy, 2006. 56 Ibid. 57 Cortell, Andrew P. and Susan Peterson. 2001. Limiting the Unintended Consequences of Institutional Change. Comparati ve Political Studies 34 (7): 768 799.

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68 becomes resistant to change over time 58 However, over the long term, the eventual outcome may not necessarily be the most optimal outcom e given the original choice set. given path, the cost of reducing course and pursuing a previously available policy becomes increasingly higher. Thus, the Stockton cas clear path for how Senate elections would be conducted within the states. The expectation was that this new, uniform standard for the states would cause future disputed elections a rarity. The Senate cre ated a new Committee on Privileges and Elections, designed to handle any subsequent disputes should they occur. Of course, the Elections Bill of 1866 did not produce this desired outcome. The next two chapters will illustrate how this legislation created a suboptimal outcome in By the 1880s and 1890s state legislatures and the Senate itself became increasingly deadlocked over Senate appointments Slowly, this resulted in increasingly louder calls for an amendment to the C onstitution providing anticipates, for significant institutional change to occur the status quo 59 which slowly reach a threshold level, which ushers in a new major institutional change 60 The next few chapters illustrate how this process played out with regard to Senate elections 58 Pierson, 2002; 2004.; Theory and Society 29: 507 48. 59 Pierson, 2004: 164. 60 Pierson, 2004, 83.

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69 CHAPTER 4 BUILDING CONSENSUS F OR DIRECT ELECTIONS: CASES BEFORE THE PRIVILEG ES AND ELECTIONS COM MITTEE After the Stockton case and passage of the 1866 law regulating the election of Senators, the widely held belief was that disputed Senate elections would again become a rarity. The first Committee on Privileges and Elections was a ppointed on March 10, 1871. 1 To t his new committee the jurisdiction for any disputed Senate election cases fell Yet, shortly after the Senate cases cascaded on this committee. This chapter will examine some of these cases and their impact on the reported calls for the direct election of Senators. The Louisiana Cases Three cases emanating from the state of Louisiana took up the entire perio d of 1873 1880. The first case involved William P. Kellogg, who resigned his seat less than two months before his term expired. After subsequently assuming the Louisiana governorship, Kellogg appointed a successor, John Ray. However, the previous governor had submitted the name of William McMillen. With each man submitting his credentials to the Senate, the Committee on Privileges and Elections was charged with deciding the outcome. 2 Since t his case took place during t he period of reconstruction, the committee first needed to decide if and when a legal state government took effe ct in Louisiana. The committee ruled that although the legislature electing Ray was in fact the de jure 1 U.S. Senate. 1914. Compilation of Senate Election Cases: From 1789 1913 62th Cong., 3 rd sess.,S. Doc. Vol. 9. 2 Ibid, 481.

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70 legislature, there was no quorum when the vote took place. Therefore, the committee decided that a new election should take place 3 Both legislatures pr oceeded to elect a Senator, with again McMillen elected by his legislature, and Pinckney Pinchback elected by the Kellogg legislature. The committee on Privileges and Elections could not decide on the credentials presented and referred the case to the full Senate. Over the course of the next few months the credentials of McMillen and Pinchback bounced between committee and the Senate floor without resolution. 4 The following quote from a member of the Committee on Privileges and Elections is an example of so me of the frustration that was encountered by the length of the Pinchback case: The great length of time that elapsed between the beginning of the term for which Mr. Pinchback was a contestant and the date of the final determination of that contest by the Senate, as also the remarkably close vote by which such contest was decided. 5 The Congressional session ended with no resolution to the Pinchback case. On January 22, 1875 credentials from a second election of Pinchback were presented to the Senate. Although the committee gave a favorable report, ruling that Pinchback had a prima facie title to admission, the resolution was tabled after it reached the floor. 6 In December 1875 and January 1876 the credentials of two other Senators from Louisiana were presented, referred to committee, reported out of committee, then tabled once it 3 Ibid. 4 Ibid. 5 Ibid., 564. 6 Ibid. 481.

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71 reached the floor. In December 1877 a compromise was finally reached admitting James Eustis to the seat Kellogg originally vacated back in 1873. 7 In 1877 another case involving two opposing Louisiana state legislatures reached the Senate. In March Kellogg was again appointed to the Senate, this time via a resolution signed by Governor Stephen Packard and what became known as the ature. In October, the credentials of Henry Spofford were presented and legislature. 8 Then after several hearings, the Privileges and Elections C ommittee ruled that the Nichols legi slature was the legal legislature in the State of Louisiana. The committee further ruled that Kellogg was entitled to his seat due to the fact that the legislature performed its duty, and that no subsequent legislature can undo such an act. 9 However, charges of bribery were later raised against Kellogg. 10 The case was reopened by the committee. This became the first i nvestigation of a U.S. Senate appointment The Washington Post The committee ruled that t he Nichols legislature was in fact wrought with fraud and bribery, thus disqualifying Kellogg from the Senate. A rather convincing minority report retorted that the partisan makeup of the Senate had changed between the two investigations and was the drivin g force behind the effort to oust Kellogg. The minority 7 Ibid. 481. 8 Ibid. 481 482. 9 Ibid. 482. 10

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72 report further argued that the original ruling on the Kellogg case was binding. The Senate did not take any action on the majority report. 11 More Competing Senate Appointments Several more disputed se nate cases erupted due to competing appointments from g overnor s and state l egislature s The disputes over these seats tended to be partisan in nature, with the Governor of one party attempting to appoint a senator prior to the opposite party taking control of the legislature after an election. Credentials for two senators, one from each party, often were presented to the Committee on Privileges and Elections. Therefore, the committee had the responsibility to hear the competing claims to a senate seat, and to decide its rightful holder. In early 1887 the West Virginia state legislature adjourned without selecting a Senator. On March 4, the g overnor called a special session of the legislature and on that very same day took it upon himself to select Daniel L ucas as Senator. According to the West Virginia constitution, a Governor who calls a special session has the right to declare which business will be addressed during the session. In this instance, the Governor did not specify the election of a new Senator as part of the business to be conducted. The legislature, in turn, decided to select Charles Faulkner as Senator during special session, even though the Governor did not specify this election as part of the call. To add to the controversy, Faulkner held a judicial position when he was appointed by the legislature. According to the West Virginia constitution at the time, a judicial officer was ineligible to hold a political office. 12 11 U.S. Senate. 1914. Compilation of Senate Election Cases: From 1789 1913 62th Cong., 3 rd sess.,S. Doc. Vol. 9. 12 Ibid., 722.

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73 It took the Committee on Privileges and Elections until December 1887 to f inally decide on this case. The committee decided to seat Faulkner due to the following reasons. First, the committee ruled that the West Virginia state legislature was within its right and duty to select a Senator at the time it did. Therefore, the Govern of Lucas on the same day the legislature elected Faulkner was declared invalid. The majority cited The Revised Statutes of the United States, Title II, Section 16 which states: The legislature of each state which is chosen next preceding the expiration of the time for which any Senator was elected to represent such state in Congress shall, on the second Tuesday after meeting and organization thereof, proceed to elect a Senator in Congress. 13 Second, the provision in the West Virginia constitut ion prohibiting a judicial officer from holding political office was ruled invalid in the case of national office. The majority cited Article I, Section 5 which states returns, and qualifications of its own supremacy clause invalidates said provision in the West Virginia constitution. 14 Questions relating to the validity of a legislative appointment also occurred in Florida in 1891. In the spring of that year, t he legislature was deadlocked over the appointment of a Senator. On May 29 the legislature appointed Wilkin son Call in joint session. question as to whether a quorum of the state senat e occurred when Call was elected. With no decision coming out of the Committee on Privileges and Elections by 13 Ibid., 723. 14 Ibid.

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74 September, the Governor appointed Robert Davidson as interim Senator. 15 In February The committee declared that: The joint assembly is thus composed not of the two houses, but of the members thereof. The joint assembly is not a junction or union of the two houses as such but it is a body distinct and separate from either as such. 16 Th Senators is not necessarily the separate chambers, but the coll ective body of all its members. A large number of deadlocks occurred after the 1892 elections, placing the partisan balance in the Senate in doubt. Deadlocks for this election cycle tended to be more frequent in western states due in part to the presence of the Populist Party. Wyoming, Montana, California, North Dakota, Kansas, and Washington all experienc ed a deadlock of some scale during this cycle. 17 Members of the Populist Party were tip the balance of power in that state. 18 The following quote from the Washing ton Post chronicles a deadlock in the Republican Caucus in North Dakota, and is an illustration of the nature of similar deadlocks of that time: Nothing was accomplished in the Republican Caucus this morning. The members were indifferent about attending. T hree ballots were taken, about fifteen candidates being voted for in each. It was evident that no result 15 Ibid., 806. 16 Ibid. 17 e Washington Post Feb. 9, 1893. 18

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75 could be reached, so Senator Sorley in disgust moved that it be the sense of the Republican Caucus that the joint assembly adjourn. 19 The scandals and d eadlocks described in the preceding pages reveal an increase in the frequency, duration, and saliency of disputed senate elections. These deadlocks lead to the following important questions. First, did this strain on state legislatures and the Senate contr ibute independently to calls for reform? Second, who were the main proponents for reform and what were their motives? Last, what level of success was achieved by these champions of reform? Pressure Mounts for Reform As already stated, the prolonged contest s over senate elections had taken their toll on state legislatures around the country and on Congress Legislative business became increasingly delayed, interrupted, and thwarted due to this rise in deadlocks. This frustration at the state level did not go unanswered. States began to petition Congress, asking them to act on a constitutional amendment which would take the power of 20 Haynes writes about a paralyzing deadlock that occurred in Oregon in 1897. The Oregon constitution at the time required two thirds of the members in each house to be present for the legislature to organize. No legislation was passed 21 Another resolution d tone about how the legislature was distracted from the many other matters and things of vi tal 19 The Washington Post Feb. 9, 1893 20 These petitions asking Congress to consider a constitutional amendment should not be confused with the petitions calling for a constitutional convention covered later in this dissertation. 21 Hayne s, 1938: 94.

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76 dissolve the joint session. 22 These frustration s were also reported by ne wspapers at the state level and national level The Washington Post often reprinted articles from state papers that reported in vivid detail the frustrations encountered by legislatures from across the country. disg raceful and humiliating spectacle odious and so miserable 23 Another article argued that every time argued how each time there was close senatorial election in a particular state, money, often in the form of bribery was often the deciding factor in the contest 24 Press reports that were supportive of a direct elections amendment noted two representative democracy. The second argument cited in the press was a growing disc ontent with the Senate, to the point of referencing radical proposals to abolish the Senate altogether. 25 carrying out the chief theory of popular government while avoiding the many scandals that took place in the 1890s 26 delegating senatorial elections to the people would relieve these bodies of the many distractions and lost time due to these deadlocks. 27 22 Haynes, 1906: 66. 23 The Washington Post Jan. 10, 1898 24 The Washington Post Dec. 30, 1898. 25 The Washington Post May 23, 1894. 26 e Washing ton Post May 31, 1897. 27 Washington Post. Apr. 23, 1900.

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77 A serious proposal to amend the C onsti tution for the direct election of Senators was introduced in the House in 1892. Representative Henry St. George Tucker of Virginia a law professor at Washington and Lee University, championed this amendment. 28 The 1892 bill was reported favorably out of th e Committee on the Election of President, Vice President and Me mbers of Congress. Although the bill did not reach the floor, the amendment would successfully pass the House five times between 1893 and 1902. 29 Table 4 1. House votes on the Amendment for Popu lar Election of Senators. 30 Congress Date Aye Nay 52 nd Jan 16, 1893 Two thirds 53 rd July 21, 1894 141 51 55 th May 11, 1898 185 11 56 th April 13, 1900 240 15 57 th Feb. 13, 1902 Two thirds 1890s was David Turpie of Indiana. Turpie was no stranger to disputed senate seats. He was actually first elected to the Senate in 1857 as a replacement for the expelled Jesse Bright. 31 members of the Indiana State Senate were ruled as not entitled to their seats after g overnor. Since these two members provided 28 Biographical Dictionary of the U.S. Congress. 29 Haynes, 1938: 97. 30 Ibid. 31 Biographical Dictionary of the U.S. Congress., http://bioguide.congress.gov/biosearch/bio search.asp

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78 margin of victory, his election was contented as invalid. The Committee on Privileges and Elections took on this case and ruled that Turpie was entitled to his seat. seat. 32 Judiciary Committee in 1891. 33 This proposal failed to gain any traction. Turpie who served as a member on the Committee on Privileges and Elections, submitted a proposal to that committee in 1895. After heated debate, the amendment failed to get voted out of committee. This outcome should be expected, as a committee of such importan ce would be stacked with defenders of the status quo. As author of the mi nority report, Senator Turpie succinctly described the frustration reformers felt over the increase in deadlocks over Senate elections: When we consider the very great evils of the present system of electing United States Senators, it might well be deemed of the first importance that the present mode should be changed. . The conflicting interests involved in such question absorb public attention and prevent the transaction of other legislative business. The same may truly be said, of the election of Senators, where, as is likely to happen and has occurred very often quite recently, parties are closely divided in the legislative bodies and the whole time of the general assembly of the State is taken up with balloting in the Senatorial election, and even then has failed in effecting a result. 34 32 Compilation of Senate Elections cases, 719. 33 34 United States Senate. Report No. 916 53 rd Congress, 3 rd Session.

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79 A similar report in the House noted how the election of Senators by popular vote would have avoided the recent deadlocks observed in sever al states. 35 Although this reform was unsuccessful in the Senate, it did make somewhat of an impact on one of its most strident opponents. One of the most powerful Senators of the time was George Hoar of Massachusetts. Hoar was chairman of the Judiciary Com mittee and a powerful member of the Committee on Privileges and Elections. During his career, Hoar went so far as to write a treatise opposing the direct election of Senators. Y et in 1899, Hoar propose d a modification in the administration of senatorial e lections that would be designed to prevent deadlocks from occurring. Hoar proposed that after seven days of balloting, a state legislature would only be required to have a plurality instead of a majority of a state legislature for the election of a senato 36 Opponents to this plan pointed to the fact that weak Senators would be elected, and that cohesive minori ty factions would have considerable power in the selection of Senators. 37 example of a Senator acting from a defensive posture as he observes cracks in his roposal was not born out of any desire for reform, but to prevent an alternative from gaining momentum. Such a sentiment will be observed again in Chapter 6 when I discuss how reform efforts eventually prevail ed 35 U.S. House of Representatives. Report No. 125., 55 th Congress, 2 nd ion of United States 36 Feb. 25, 1899. 37 I bid.

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80 Although Congress fai led to act on constitutional reform of senate elections during the mid 1890s, the deadlocks and controversies continued. In fact, these controversies became more acute, at times causing Senate seats to remain vacant for a congressional session or longer. B etween 1890 and 1905 a total of 14 Senate seats remained vacant for an entire Congress. 38 A conspicuous example is the state of Delaware. Between 1895 and 1905 Delaware had full representation during only one Congress, and had no Senator at all during the 5 7 th Congress. 39 attempted to buy himself a Senate seat. Addicks first emerged as an unsuccessful candidate in the early 1890s, throwing money at Republican state legislative c andidates in an attempt to build a majority coalition for his election to the Senate. 40 After the Republicans gained control of the Delaware state legislature in 1894, a deadlock several votes, DuPont had 15 votes, one short of a majority. During this period the governor died and the Speaker of the State Senate, William Watson, became interim neede d for election. However, Watson refused to vacate his seat, keeping the election in deadlock resulting what would normally be a vacant Senate seat once the legislature 38 Haynes, 1938: 92. 39 Ibid. 40 Murphy 2006: 114.

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81 inf luenced by a monetary contribution from Addicks. 41 However, the Speaker of the Delaware House declared DuPont the winner of the Senate election and sent his credentials to Washington. A majority of the Committee on Privileges and Elections ruled DuPont the was ruled that Watson was ineligible under the Delaware constitution to be present in 42 However, once the DuPont case reached the Senate floor, he was decl ared ineligible for his Senate seat by a vote of 31 30, leaving the seat vacant. 43 Republican Party. In 1897, Addicks produced credentials to the Senate signed by the Speaker of th e state House, and speaker of the state Senate. A second set of credentials in support of Richard Kenney was sent to the Senate signed by the Governor. An application by Henry DuPont asking the Committee on Privileges and Elections to reopen his case was also presented. Kenney, having been present while his credentials were presented was administered the oath of office and the case regarding his seat referred to the Committee on Privileges and Elections. 44 However, no report 41 Ibid, 114 115. Compilation of Senate Election Cases, 818. The Arena 10 (September 1893), 453 460. 42 Compilation of Senate Election Cases, 821. 43 Ibid, 818. 44 Ibid, 117.

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82 was ever produced by the commit tee. 45 After the appointment of Kenney in January 1897, DuPont again asked for his case to be reopened. In early February, the seated. 46 It should also be noted that while the Kenney v Addicks case was being debated in the Senate a deadlock over the Du Pont seat from the previous Congress, was ongoing in the Delaware legislature. 47 Addicks and his faction continued to produce deadlocks in the Delaware legislature for each succee had the dubious distinction of failing to elect two Senators during the January 1901 session. This was due to the fact that the legislature failed to elect a Senator for a seat that became vacan t in March 1900, in addition to the seat that was set to expire in March 1901. This scenario repeated itself in March 1903. 48 described by The New York Times to debauch a commonwea 49 Addicks was finally brought down after President Theodore Roosevelt intervened in resolving the Delaware deadlocks in 1903. A compromise was reached where one Senate seat went to a longtime all y of Addicks and another Senate seat went to one of 45 Compilation of Senate Election Cases, 875 876. e Washington Post Feb. 6, 1897. 46 he Washington Post Feb. 3, 1897 47 e Washington Post Jan. 4, 1897. 48 Murphy, 117 119. 49 Ibid. 118 Clark 488.

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83 50 abandoned him and his adversary Henry DuPont was finally elected to a Senate seat. 51 William Clark of Montana rivaled by the actions of William Clark of Montana, whose transgressions were not discovered until after he assumed office. Clark was no stranger to controversy, as his initial run for the Senate in 1890 was disputed as well. In 1890 two sets of Senators were sent by two different bodies claiming to be the Montana st ate legislature. The first body sent the credentials of Thomas Power and Wilbur Sanders, whereas the second body sent the credentials of Martin Maginnis and William Clark. The question as to which legislative election was legitimate rested on the delegation of Silver Bow County which sent two dif ferent sets of five legislators to the state capitol. 52 Determinat ion of which delegation from Silver Bow County was legitimate rested on the Committee on Privileges and Elections. The case came down to whether or not the votes in a specific precinct in Silver Bow County were properly counted. It is quite striking that t he Committee had to go into such minute detail of a Montana state election to decide this case. The majority of the committee ruled that the state canvassing board was within its right to receive the election returns and certify the election of the state l egislators representing Silver Bow County. Therefore, the first set of legislators votes were considered to be valid and Sanders and Powers were admitted to the Senate. It should be noted that the minority of the committee held that the county commissioner s 50 Murphy, 118 120. 51 Ibid, 120. 52 Comp ilation on Senate Election Cases p. 727

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84 were the proper canvassing board and that Clark and Maginnis were entitled to be seated. 53 Montana politics in the 1890s was wrought with controversy and known for expensive electoral campaigns. In 1895, the state government passed a law limiting the amou nt that could b e spent on any state election in Montana This law also limited to $1,000 the amount a candidate for U.S. Senate can give to a county political committee and a $1,000 limit on personal expenses during a campaign. 54 As discussed earlier, Willi am Clark was a major player in Montana politics. Clark was a candidate for the U.S. House in 1888, and the U.S. Senate in 1890, 1893, and 1895. In 1898, Clark consulted with the Governor, his son, and other operatives in an effort to gain election to the S enate in 1899. 55 Clark was a very wealthy man, with an income e stimated to be around 1 million dollars a month. 56 Even with some of the campaign limits described above, Clark still had the means to conduct a major campaign in such a small state. Clark resor ted to bribery, and in the end spent approximately $140,000 to gain the vote of state legislators. 57 are discussed below On December 4, 1899 ly January 1900, the committee began to hear the Clark case. 58 The committee found several 53 Ibid. 54 Ibid, 908. 55 Ibid. 56 Washington Post. May 27, 1900. 57 Hoebeke, 91. 58 Compilation of Senate Election Cases, 906.

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85 their private businesses. One legislator, John Geiger received a sum of $3,600 in cash stating that the money was obtained through gambling. 59 One lump sum payment of back. 60 Although no specific transgression was found, the report mentioned the peculiar favor of Clark the Democrat. 61 Mar conspiracy of any kind took place. 62 On April 23, 1900, the committee submitted a report stating that Clark was not legally elected U.S. Senator from Montana. The report stated that out of his majority of 15 votes, at least 8 were obtained through corrupt means. 63 The two dissenting votes on the committee, although agreeing with the majority that Clark was not legally elected Senator, chastised the committee for unethical practices during the investigation. 64 This included a member of the House of Representat ives involving himself in the an. 6, 1900. 59 Compilation of Senate Election Cases. 908 909. 60 Ibid. 911. 61 Washington Post Apr. 24, 1900. 62 Compilation of Senate Election Cases 911 912. 63 Ibid. 906. 64 Ibid. 920 926.

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86 investigation, and the offer of unlimited money in contributions from Daly to conduct the investigation. 65 On May 5, 1900 Clark resigned his seat only to be reappointed that same day by the Lieutenant Governor A .E. Spriggs. Sin ce the sitting g overnor was in California at the time, the lieutenant governor retained all g ubernatorial powers, including the credentials were originally accepted on t he Senate floor, they were quickly referred to the Committee on Privileges and Elections for further investigation. Upon his return to the Senate floor, Clark received a standing ovation from Democrats, Republicans, and Populists alike. 66 This appointment b lin dsided Senator Chandler, the chairman of the 67 Other Senators on the committe e voiced the opinion that if found void. Senator Allison who was second in command in the Republican caucus voiced an opinion that was almost dismissive of the original charges against Clark, citi ng a previous case. 68 move his credentials to the Committee on Privileges and Elections for investigation. 69 65 The Washington Post Apr. 24, 1900 66 impeached, or absent from the state, all functions powers, and emoluments shall devolve upon the Lieutenant Governor. Clark actually presided over the const itutional convention that gave the Lieutenant Governor this particular power. See The Washington Post 67 Ibid. 68 Ibid. 69 Citing an earlier case, it was ruled that a Governor had the power to make an appointment the ab senc e of a legislative session.

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87 Upon returning from Montana, Governor Smith was interviewed by the Washington Post for cited his belief that only 25% of Montana citizens approve of Mr. Clark. 70 On May 11, 1900 Clark resigned a second time. 71 Clark was undeterred as he was appointed to the Senate in 1 901, this time by a fair vote. 72 Reed Smoot of Utah One particular case that caused an uproar in Congress and the national press had not hing to do with scandal but a lot to do with religious bigotry. The credentials of Reed Smoot of Utah were presented to t he Senate in February 1903. On the same day a election was received by the Senate. 73 The animus against Smoot stemmed from alleged polygamy from Smoot individual ly, and the Mormon Church as a whole. Among the charges leveled against Smoot and the of laws against polyg amy, and are solemnly banded together against the people of the United States . to frustrate the attempts of the Government to eradicate polygamy and polygamous cohabitation. 74 70 The Washington Post May 17, 1900. 71 Compilatio n of Senate Election Cases 906. 72 The Washington Post Jan. 17, 1901. 73 Compilation of Senate Election Cases 930. 74 Ibid, 930 931.

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88 including 75 Smoot was seated on the first day of special session in March. Smoot served without controversy until the first day of the second session of Congress met in January 1904 when a resolution was referred to the 76 What follows was a two year investigation by the committee. The main charge against S moot in committee was that he was a polygamist. 77 This case undoubtedly generated considerable attention in the press. The committee even conducted part of their investigation in Utah. 78 Issues surrounding Mormon Church practices, the Mormon Bible, and Churc h history were discussed at length by the committee. 79 Over the course of the investigation some in Utah suggested that Smoot resign from the church, thus ending the controversy. Smoot however, was undeterred and remained loyal to his church. 80 When Smoot to ok the stand, his testimony was forceful, as he specifically denied ever being involved in polygamous relationships and that his duties to the Church in no way interfered with his duties to the Senate. 81 He even went on to voice his disapproval The Washington Post February 16, 1903. 75 The Washington Post Dec. 19, 1903 76 Ibid, 928. 77 The Washington Post Dec. 13, 1903. 78 The Washington Post Apr. 28, 1904. 79 The Washington Post Dec. 13, 1904. 80 The Washington Post Jan. 13, 1903. 81 The Washington Post Jan. 10, 1904.

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89 of polygamy. 82 Testimonials from former members of Congress and a former Governor 83 More welcome support came from Senator William Borah of Idaho a powerful leader in the Republican caucus. 84 When the Chairman of the Committee on Privilege s and Elections, Senator Burrows took the floor, he did not even charge Smoot with polygamy which was the principle charge against him. Instead, Burrows went into a scathing critique of the h made him ineligible for office. Burrows went on to accuse Smoot with aiding and promoting the was inconsistent with his duties as Senator. 85 On June 11, 1906 the committ ee by a vote of 7 to 5 reported a resolution that Smoot was not entitled to his seat. 86 The minority report argued there was no evidence of polygamy by Smoot and the only way he could be removed from his seat is by an expulsion by the full Senate. Debate ov er the Smoot case continued until February 1907. At that time, the resolution was amended to require a two thirds vote for expulsion. After a series of procedural votes, the resolution to expel Smoot from the Senate failed by a vote of 28 to 42. 87 82 The Washington Post Jan. 21, 1905. 83 The Washington Post Jan. 12, 1905. 84 The Washington Post Dec. 26, 1903. 85 The Washington Post Dec. 12, 1906. 86 The Washington Post Jun. 12, 1906. 87 Compilation of Senate Election Cases, 928.

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90 Conclusio n This chapter looks historically at how the Elections Act of 1866 failed to reduce the frequency and duration of disputed U S Senate elections. In fact, this legislation actually led to an increase in Senate disputes at an alarming rate. Disputes both at the state and national levels were now covered by the national press who chronicled these deadlocks in all its scandalous detail. This chapter saw the rise of an increasingly vocal minority in Congress whose frustration over these deadlocks spurred them t o propose a constitutional amendment to have Senators elected directly by the people. However, this chapter also reveals the institutional powerlessness reformers felt during the 1890s and early 1900s. Constitutional change would not come about through Co ngress, at least for the time being. By 1900, external forces were building that would place unprecedented pressure on the Senate to act. The next two chapters will illustrate empowering reformers to build a coalition that would eventually bring constitutional change.

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91 CHAPTER 5 LATER DISPUTES AND C ALLS FOR REFORM Introduction The previous chapter provided a qualitative descriptive analysis of the disputes over Senate elections during the 1880s and 1890s. The cases described in the previous chapter illustrated how several disputed Senate elections deadlocked legislative business both at the state and national levels. The states were clearly burdened by the deadlocks observed in the 1880s and 90s. These burdens were compounded by the regulation of Senate elections from the Elections Act of 1866 These controversies led to many calls for reform; however the Senate remained intransigent in its unwillingness to act. P ressure on the Senate did not abate. This chapter will reveal how outside pressures from the states and the national press continued to build on the Senate during the 1890s and 1900s. The following questions will address the institutional response by the press and the state legislatures to the magnitude of these deadlocked Senate elections. Did the press cover these disputes? If so, how was the debate framed? Did the state legislatures have any effective response to these cumbersome pressures? Which s tates were more likely to respond? This chapter provides the Progressive Era context behind calls for a constitutional amendment during the 1890s and 1900s. Providing this context is important since it provides the backdrop behind some of the zeal for refo rm. Next, I turn specifically to the national press. This important institution helped shape public opinion while also pressuring public officials towards the view that the Senate had deteriorated and was in need of a significant reform. I also look to the state legislatures, who had to endure most

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92 of the damaging effects of the Senate deadlocks. The states did respond, in a rather forceful manner, by calling for a constitutional convention to address the manner of Senate elections. This chapter also contai ns a quantitative analysis of the points described above using two original datasets. My quantitative data include articles related to Senate elections for the period 1878 1912 from The Washington Post. The article dataset contains categories examining the different facets of Senate elections for that period. Articles related to the proposed amendment are further coded as to their relative positive or negative tone. There are additional sub categories to indicate the type of tone. From this point, I track t he frequency of articles related to disputed Senate elections over time. I also include an analysis of the tone and nature of these articles. A second dataset examines state level data of disputed Senate elections. This data includes basic demographics, th e frequency and duration of disputed Senate elections in that state, and whether that state petitioned congress for a constitutional convention calling for the direct election of Senators. The two described datasets are merged to examine whether higher lev els of disputes translated into petitions calling for a Constitutional Amendment for the direct election of Senators. This is the first study to ever systematically examine factors that led state legislatures to petition Congress for a constitutional conve ntion. Data collection procedures are discussed in more detail in the methodology section of this chapter. The results indicate that articles related to disputed Senate elections tended to vary with articles related to the constitutional amendment over tim e. Additionally, states that had more frequent coverage of their disputed Senate elections were more likely to

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93 petition Congress for a constitutional convention which would have addressed the issue related to the election of senators. This result, in parti cular, reveals that pressures felt by the state legislatures due to these disputes, forced them to respond in a most austere manner. The Progressive Context The Progressive Era was a truly transformative period in American political history. Although many earlier Populist Era, the Progressives were quite distinct. The Progressive movement evolved during the 1890s and emerged in full force during the 1900s and 1910s. 1 Unlike the more agrari an and western origin of the Populists, the Progressives tended to emerge from Midwestern states and from urban centers. Progressives also tended to be from the middle and upper economic classes in society. The intellectual genesis behind many progressive policies can be traced to the academics, attorneys, and journalists of this era. 2 One of the central puzzles of the Progressive movement focuses on why the impetus behind reform efforts of this era was driven by the middle class and professionals. Hofstadter provides a compelling argument that Progressives were motivated by the threat the new large business i nterests posed to their status. Hofstadter as described middle class grievances, not because of economic deprivations but primarily because th ey were victims of an upheaval in status that took place in the United States . Progressivism was led by men who suffered from the events of their 1 Hofstadter, Richard 1960. The Age of Reform New York: Vintage Books. Link, Arthur S., and Richard L. McCormick 1983 Progressivism Wheeling IL: Harlan Davidson 2 Ibid.

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94 time not through shrinkage in their means but through the changed pattern in the distribution of deference and power. 3 Hofstadter describes how middle class professionals such as physicians, attorneys, academics, and the clergy enjoyed a high degree of status and influence onomic hardship during the end of the 19 th Century, members of these professions felt so due to the rise of large industrial business. These new industries produced large concentrations of wealth in a short period of time within a small number of people wh o were often less educated than the established professionals. 4 The middle class also had an adverse reaction to patron based democracy. They viewed this system of party machines as giving too much power to immigrants and the uneducated. 5 These professiona ls began to mobilize, calling for social reforms. These credibility behind reform proposals. 6 Progressive reforms began at the state and local level before making its way up to the national government. Western states saw the regulation of utilities and mining interests, and the institution of the initiative and referendum. 7 Some businessmen, who had the public interest of social reform in mind, ran as mayors in cities such as Cleveland and Jersey City on an a genda of reforming the structure of municipal 3 Hofstadter, 135. 4 Ibid. 5 Skowronek, Stephen 1982 Building A New American State: The Expansion of National Administrative Capacities 1877 1920. Cambridge University Press 6 Hofstadter, 1955 7 Link and McCormack, 34.

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95 government. Innovations such as the city commission system came into being. 8 As Governor of Wisconsin, Robert LaFollette mobilized a diverse group of interests in an effort to pass reforms such as the direct primary, industry regulations, and progressive taxation. 9 However, there were some significant contradictions within progressivism. Several policies were passed during this period that restricted the participatory rights of specific groups. Some of the most egregious policies were voting rights restrictions such as poll taxes and racial segregation laws. 10 Other policies included restrictions on immigration and miscegenation laws. The prohibition movement in particular was viewed as targeting immigrant groups. The next chapter will detail how the desire to disenfranchise minorities made its way into the debate over the 17 th Amendment. Specifically, there was a desire by some states to remove Article I Section 4, which gives the national government control over congressional elections. Scholar James Morone addresses some of these inherent contradictions within the progressive movement. In essence, these reforms had some unintended consequences that reinforced participatory bia s in the system. 11 For instance, although the Australian ballot ended some voter intimidation at the polling place, it also served to disenfranchise African Americans. Morone also points out how the direct primary led to the diminution of partisan competi tion, bringing about one party rule in many states. This point is made 8 Ibid, 30. 9 Ibid, 31. 10 McDonagh, 1999; 157 11 Morone, James A., The Democratic Wish 1998 New Hav en: Yale University Press.

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96 quite persuasively as Morone points towards declining participation numbers during the Progressive Era. 12 These points lead to the obvious questions; did the direct election of senators lead to more responsiveness or less? Did this reform provide more opportunities for people of less means to reach the Senate? Were there any unanticipated consequences to the 17 th Amendment making the Senate less representative? These are just some of the questions that will be addressed in Chapter7. Impact of the National Press How did progressive reforms manifest themselves on the public agenda in the first place? As an institution in its own right, the print media transformed itself as well. These new j background, informed the public in glaring detail, many of the outrages occurring both in industry and government. These were depicted in periodicals such as Outlook, The Arena, and The North American Review. 13 However, this institution endured internal and external pressures as well. Advertisers who saw their interests threatened pulled their support for these periodicals. Many publications had to deal with the pressures of maintaining a large circulation and while deciding on how to report on an industrial sector that was hostile towards any reforms. 14 One particular article hailed other reforms such as Direct Democracy and the Direct Primary. It was argued that the direct election of Se nators was a similar reform, would also be accomplished through use of 12 Ibid. 123 125. 13 Hofstadter, 1955. 14 Ibid, 196.

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97 the Direct Primary. 15 One editorial in The Independent magazine took aim directly at the deadlocks at the state and national levels, stating: We should eliminate from our political syste m an absurd anachronism which is a continuing cause of corruption and of misrepresentation of the public in the Senate at Washington. 16 The Muckrackers did hold a particular aversion towards how business was conducted in the Senate. In fact, several periodicals during this period devoted played a major role in swaying pub lic opinion against the Senate as an institution, and towards the view that a major reform such as direct elections was necessary. In one rottenborough institution in the civilize 17 Another editorial in The Outlook not only cited deadlocks as a reason for reform, but also called out individual Senators This article decried the effect Senate ele ctions had on both the state legislatures and the Senate itself: The worst of the present method of choosing Senators, however, is not that it is inefficient; . It has done injury to the character of the Senate, and it has done much to degrade the State Legislatures. .If a rich man wishes to buy a high office for himself, he looks first to the Senate. 18 One of the major publishers during this time was William Randolph Hearst. Hearst was a major supporter of direct elections, and in 1906 one of his publications, 15 he Outlook. September 13, 1906. 16 17 18

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98 ips, a supporter of the direct election of senators. 19 Towards the beginning of the article, Phillips takes the issue on 20 As was the case with the article in Outlook described above, the first article in this series was aimed directly at Senators Chauncey DePew and Thomas Platt. Phillips by receiving thousands of dollars from the insurance industry. 21 The balance of the article focused on DePew, who Phillips characterized as a puppet of railroad executive Cornelius career starting with his early days in Tammany Hall and mentorship from Boss Tweed. 22 The author proceeded to indict DePew through a means of guilt by association with the Vander bilts, covering his early days as a railroad lawyer for New York Central, to his involvement with railroad related legislation in the Senate. DePew was also portrayed as a pawn for the insurance industry, through his dealings with a disgraced leader in the industry. 23 19 n Magazine March, 1906.487 502. 20 Ibid. 488. 21 Ibid. 488. 22 Ibid. 492 494. 23 Ibid. 5 00.

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99 24 As discussed earlier, the decades after the Civil War saw an increasing role for party leadership in Congress. 25 The Republican caucus came under control of a faction of led by Senators Nelson Aldrich and William Allison. Although not nearly as strong as the party leadership structure developed by Reed and Cannon in the House, Aldrich and Allison enjoyed considerable sway in setting the legislative agenda in the Senate 26 his early days as a grocer and a bookkeeper. 27 n the politics of Rhode Island and the Senate itself is discussed at length in the article. The Aldrich 28 With a firm burying it in the stacked Committee on Privileges and Elections. 29 As will be observed in 24 itan Magazine May, 1906.628 38. 25 Rothman, David. 1969 Politics and Power New York: Athenium Press. Cox Gary W. and Matthew D. McCubbins 1993. Legislative Leviathan: Party Government in the House Berkeley: University of California Press. Binder, Sarah A. and St even S. Smith 1997. Politics or Principle? Filibustering in the United States Senate Washington DC: Brookings Institution Press. Amendment and the Politics of Represe Studies in American Political Development (13): 1 30. 26 Hechler, Kenneth W., 1940. Insurgency: Personalities and Politics of the Taft Era PhD Disser tation: University of Columbia. Merrill, Horace Samuel and Marion Galbraith Merrill 1971 The Republican Command 1897 1913 Lexingto n: University of Kentucky Press Schickler, Eric 2001. Disjointed Pluralism: Institutional Innovation and the Development of The U.S. Congress Princeton: Princeton University Press. 27 Ibid. 630. 28 Ibid., 628. 29 Haynes, 1930.

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100 the next chapter, it would take an infusion of new me mbers to loosen this grip Aldrich had over the Senate and pave the way for the amendment to pass. The above periodicals were critical in shifting public opinion on the Senate and fueling the cause for direct elections. The press had clearly taken their sta nd. The effort from the states, one that would be much more forceful in pushing Congress to a ct. Senate Election Disputes and Calls for a Constitutional Amendment The previous chapter described various proposals for a constitutional amendment calling for the direct election of senators. Each proposal, including those that achieved overwhelming sup port in the House, fell on deaf ears in the Senate. However, there was one method by which the states hoped to achieve this change by bypassing the Senate altogether. This involved invoking Article V of the constitution which states that a constitutional c onvention can be called provided that two thirds of the states petition Congress for one. After the turn of the 20 th Century, states began invoking Article V. By the end of the decade, a total of 31 states petitioned Congress, one short of the two thirds n ecessary for a convention. Table 5 1 shows each state and the year they petitioned Congress for a constitutional convention. an amendment calling for the direct elec tion of Senators. The following is an example Whereas the United States Senate has each time refused to consider or vote upon said resolution, thereby denying to the people of the several Hoebeke, 1994.

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101 states a chance to sec ure this much desired change in the method of electing Senators; therefore be it Resolved by the Senate and Assembly of the State of Wisconsin, That under the authority of Article V of the Constitution of the United States, an application is hereby made to Congress to forthwith call a constitutional convention for the purpose of submitting to the states for ratification an amendment to the Federal Constitution providing for the election of United States Senators by direct vote of the people. 30 In 1906, Iowa Governor Albert Cummins called a meeting of representatives from 31 Representatives from a total of thirty state legislatures attended this convention. 32 The delegates to the meeting decided to form a permanent 33 Calling a constitutional convention was considered to be a drastic move by many. A potential convention would not on ly address the direct elections issue, but any other potential issue as well. As will be observed in the next chapter, Congress took this threat quite seriously, and it may have been the tipping point that pushed the 17 th Amendment over the edge. Was ther e a relationship between the disputed Senate election cases described in the previous chapter and the calls for a constitutional convention discussed in the previous paragraphs? The states were clearly burdened by the deadlocks observed in the 1880s and 90 s. These burdens were compounded by the regulation of Senate election s from the Elections Act of 1866 30 Ibid., 373. 31 Hoebeke, 149. The Outlook December 15, 1906 : 902. 32 The Washington Post December 3, 1906. 33 The Washington Post December 7, 1906.

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102 Table 5 1. State Petitions for a Constitutional Convention 34 1893 1895 1901 1902 1903 1904 1907 1908 1911 NE WY AR CO ID KS MI MN MO MT NV NC OR PA SD TN TX KY CA IL UT WA WI IA IN LA NJ OR OH OK ME The following questions address how the institutional response to the magnitude of these deadlocked Senate elections. Did the press cover these disputes? If so, how was the debate framed? How did the state legislatures respond to these cumbersome pressures? Was there any manner that empowered the states to pressure Congress to act? The remainder of thi s chapter provides quantitative analysis addressing the above questions. The results show an involved press that did not support constitutional reform, yet covered disputed Senate elections in sensational detail. My data also reveal that the state legislat ures did act in a rather forceful manner. States with more press coverage of 34 U.S. House of Representatives. Committee on the Judiciary, Problems Relating to a Federal Constitutional Convention by Cyril F. Brickfield, 85th Cong., 1st sess.

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103 disputed Senate elections were more likely to turn to the most serious forms of constitutional change: a formal petition to congress for a constitutional convention. I turn to a discussion of my data collection and methodology. This is followed by a detailed data analysis of the issues described above. Data and Methodology The first dataset consists of a total of 1277 articles collected from The Historical Washington Post using th e ProQuest Historical Database. Many of these articles were examined in a descriptive/qualitative manner in the previous chapter. A quantitative examination allows for a more precise assessment of the forces that occurred in the decades leading to the pass age of the 17 th Amendment. Therefore, I am able to determine whether higher levels of disputes over U.S. Senate appointments led to increased petitions from the states to call for an amendment to change how Senators are selected. As mentioned in the previo us paragraph, all articles were searched under the ProQuest Historical Database. This database contains historical newspaper archives from several national and regional periodicals dating to the early 19 th Century. My sample begins in 1878, which was the f irst year The Washington Post was in circulation. The choice of 1878 also corresponds nicely with the end of reconstruction. The newspaper sample was drawn inclusive to dates where Congress was in session during the years 1878 through 1912 Searches were c search criteria were then placed into the dataset for coding. The coding sheet used to code all articles is included in the appendix to this dissertation. Several approaches exist for performing Content Analysis, each with a

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104 variety of strengths and weaknesses. 35 One approach tabulates the number of times a particula r word or phrase is mentioned in a particular body of text. 36 Although many researchers who use content analysis use word counts to determine, some argue there are limitations to this technique, due to the fact that words used most frequently in a piece of text can often be used in multiple contexts. 37 tests for consistency in word usage. 38 By utilizing this method, the researcher comes close to recreating how most potential voters r ead the newspaper. Specifically, most readers take one or two relevant points from an article, therefore less likely to break down each small point that was made. This method enables the researcher to pull several sentences from the document, thus facilita ting a more valid coding of content categories. 39 The content unit 40 for this study is each informational article from the main news section of the newspaper whose major theme was the contest for a U.S. Senate seat in that particular state. 35 Practical Assessment, Research And Evaluation 7: (1 7). Weber, Robert Phillip. Basic Content Analysis. Sage University Papers. Series, No. 07 049. Beverly Hill s, CA: Sage Publications, 1985. 36 Riffe, Daniel. Stephen Lacy and Frederick G. Fico. Analyzing Media Messages Mahwah, NJ: Lawrence Erlbaum Associate s, 1998. 37 a political en 38 Ibid. 39 Ibid. 40 not be confused in any way with the unit of analysis in this study. See Weber, 1985

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105 Analysis The following tables and histograms examine the major theme for each article both at the aggregate and over time. As indicated in the table below, disputed Senate outcomes at the state level accounted for the highest category of article themes at 48.2%. This f inding reveals that disputed Senate elections both at the state and national levels, in the aggregate, were covered by the national press has significant theoretical implications. This high level of newspaper coverage, in turn, helped to shape public opini on about the existing conduct of Senate elections. Legislators, who were already frustrated by the ongoing deadlocks over Senate elections, became pressured to do something about this problem. I posit, and demonstrate later in this chapter that as the nati Constitutional Convention calling for the Direct Election of Senators. I demonstrat e this by deriving a variable that classifies each article related to a disputed Senate election by state. This variable is included in an Event History analysis that models the timing of a Another interesting re sult is the subcategories of articles focusing on disputed Senate elections. The subcategories producing the most coverage were intra and inter party factional disputes. Some of the more sensational cases tended to engender significant coverage. For instan ce, 80 out of the 654 articles in this category focused on the sectarian dispute over Senator Smoot of Utah discussed at length in Chapter 4. The consequential dispute surrounding William Lorimer of Illinois produced 77 articles. The Lorimer case was so de bilitating to the Senate that it was one of the key factors forcing

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106 the chamber over the edge in considering the 17 th Amendment. This will be discussed in considerable detail in the next chapter. The second highest category was horserace coverage of indivi dual Senate races at 20.9%. These articles tended to focus on a couple of themes. First, was the partisan other major horserace theme focused on the fortunes of various fa ctions within a within a chamber and how it affected the aspirations of specific Senatorial candidates. C lose to 200 articles focused on hearings of the Committee of Pri vileges and Elections dealing with disputed Senate elections. These articles typically focused on the cases in this category were discussed at length in the previous chapter. Slightly more than 10% of all articles focused on a proposed amendment for the direct election of Senators. Articles in this category tended to focus on proposals within state legisla tures calling for a constitutional amendment. Other articles in this category were editorials and opinion pieces. A full discussion of the articles in this category is included later in this chapter. A surprising result is that only seven articles reported on the loss of a Senate seat due to a disputed election, accounting for less than 1% of the entire dataset. In fact, 1893 and 1900 were the only years where more than one article in this category was recorded. One article of note focused on a proposal by Senator Debois of Idaho who proposed to postpone the consideration of a Silver repeal bill until

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107 a full Senate was seated. 41 This is an example of a U S Senator attempting to hold up regular business due to vacancies within the chamber, a phenomenon which will be observed again in the next chapter. Table 5 2. Article Themes for Senate Elections Disputed Outcomes 48.2% (615) Horserace 20.9% (268) Senate Hearings on Disputed Senate Elections 15.5% (199) Proposed Amendment 10.1% (129) Endorsement 4.6% (60) Seat Loss 1% (7) Total: (1277) Source: Data compiled by the author. Number of articles is in parentheses. Figure 5 1 overlays all the articles by topic related to several of the proposed constitutional amendment over time. The top line depicts the number of articles related to disputes over Senate appointments in a given year whereas the lower and thicker line represents articles related to horserace coverage of a particular Senate election in a particular year. The dashed line with the observed sp ikes are articles related to a proposed constitutional amendment for the direct election of Senators, while the dashed line that is relatively flat represents articles related to a vacant Senate seat. The period around the 1890 election provides the first example of a major increase in press coverage of disputed Senate appointments 41

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108 Figure 5 1. Articles by category This was the period discussed in the previous chapter when Montana sent two sets of Senators to be considered by Congress. 42 Another highly partisan deadlock in Kansas time. 43 The press responded by beginning to suggest changes to how Senators were chosen. Proposed remedies included both dire ct elections, and electing Senators at a state convention. 44 The later part of the 1890s saw two spikes, with the second spike yielding over 60 articles in a year. This was also the period when Addicks was beginning to cause 42 e Washington Post Fed. 16, 1890 43 Th e Washington Post Dec. 15, 1890 44 Washington Post April 15, 1890

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109 controversy in Delaware. The las t major spike around 1900 coincides with the Clark case discussed in the previous chapter. Article frequencies increased to a steady level during the first half of the 1900s with a substantial spike at the end of the decade. Much of this earlier increase can be attributed to the disputes over Senators Smoot and Quay of Utah and Pennsylvania respectively. This last major increase, almost exclusively includes articles related to the disputed appointments of Issac Stevenson of Wisconsin and William Lorimer o f Illinois. Both cases and their impact on Congress will be discussed at length in the next chapter. It should be noted that the corresponding increase in articles related to the proposed amendment were much more positive in tone than what was observed in previous years. This graph shows a slight lag between articles relating to disputed elections and articles related to the amendment. Peaks observed around 1890, 1900, and the during the Lorimer scandal of the early 1910s demonstrate this pattern. Therefore it may be inferred that articles related to disputed Senate outcomes are leading to more articles that are focused on a proposed amendment for the direct election of Senators. This is a critical point, since it signified that more frequent and salient di sputed Senate elections were having an impact. Specifically, they were moving the press and opinion writers to consider a constitutional amendment to remedy the problem. Since this remedy was never seriously considered prior to 1890, this pattern demonstra tes that the disputes were taking their toll.

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110 Additionally, the number of articles related to horserace coverage appears to have no relationship with the level of articles related to disputed elections or with articles related to the proposed constitutional amendment. This is a surprising result since higher levels of partisan competition in a legislature tended to lead to more disputed Senate elections. 45 This graph shows peaks for election periods during the 1890s, followed by smaller peaks du ring the 1900s. This can be attributed to the more highly competitive nature of the party system in the 1890s. 46 The following table examines the general tone for articles that are specifically focused on the proposed constitutional amendment. Out of the 12 9 articles related to the amendment, 54 were neutral in tone, whereas 75 were either positive or negative in nature. Overall, articles were more likely to be negative in nature; however the overall tone tended to improve over time. As illustrated in the hi stogram below, articles after 1902 tended to be substantially more positive towards the amendment than in previous decades. Table 5 3 indicates the general theme for the articles that had either a positive or negative tone towards the amendment. The Gener al Positive and General Negative categories contain articles that did not state a specific reason for supporting or opposing a constitutional amendment. Deadlocks and scandals were the most common reason given for positive articles, whereas tradition was m ost commonly mentioned in articles with a negative tone. 45 ons American Political S cience Association. Chicago, IL 46 See Rothman, 1969.

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111 Table 5 3. Articles For/Against Amendment General Negative (N) 22.7% (17) Deadlocks/Scandals (P) 18.7% (14) Tradition (N) 18.7% (14) 13.3% (10) Amendment Not a Remedy (N) 12% (8) 9.3% (7) General Positive (P) 5.3% (4) Total: Article Positive or Negative (75) Source: Data compiled by the author. Frequencies are in parenthesis. Positive arguments for the amendment were mixed. Popular Interests was the most frequent argument in support of the amendment. Deadlocks and Scandals were also highly mentioned positive arguments for a constitutional convention. This is critical, since the se are precisely the arguments pushing public opinion and state legislators towards the need for reform. One article supporting the amendment presented three arguments in the following concise manner: First it brings government nearer to the people . Second It avoids corruption, that, with increasing frequency, is attending to senators elected by the legislatures. Third It enables the state legislature to attend to state matters undisturbed 47 47 he Washington Post Apr. 6, 1902

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112 Tradition and States Rights wer e the two highest negative categories. In an interview, former Senator Edmunds of Illinois described how the existing method was 48 One Washington Post editorial dismissed arguments for the 49 50 This chapte r provides additional data analysis examining whether states whose Senate contests were in dispute were also likely to petition Congress under Article V, calling for a Constitutional convention for the direct election of Senators. The dependent variable fo r this model is when a state petitioned Congress for a constitutional convention calling for the direct election of Senators. I examine disputed Senate election cases using Event History Analysis. Event History Analysis is well suited for this model since of an event occurring, specifically petitions for a constitutional convention. 51 Methodologically, this is measured the same as a state adopting a policy at a given point in time. Work by Berry and Berry has led rese archers to focus on state policy 48 e Washington Post Nov. 13, 1894 49 e Washington Post Jan. 23, 1897 50 51 Box Steffensmeier, Janet M., and Bradford S. Jones 2004. Event History Modeling: A Guide for Social Scientists Cambridge University Press. Box American Journal of Political Science 45: 951 67. Cl Stata Technical Bulletin 49: 30 39.

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113 policy. 52 Typically, these data code a state from time t 0 at discrete time points, t =1, 2, 3, r the event occurs. The dependent variable is adoption, or the event occurring. Event History models are motivated by questions of risk of an event occurring. Specifi cally, given an event has not occurred in a given state at a given time, Even History Analysis measures the chances of the event occurring. 53 The dependent variable for this model is a state petitioning Congress for a constitutional convention calling for the direct election of Senators. The data for my dependent variable was collected from a report from the Congressional Record and a progressive era periodical. 54 52 American Political Science Review 84:395 416. American Journal of Political Science 36:715 42. 53 The following equation represents the basic survival function for this model: Source: Box Steffensmeier, Janet M., and Bradford S. Jones 2004. Event History Modeling: A Guide for Social Scientists Cambridge University Press Bal American Politics Research 29: 221 45. An Event History Analys is of Living American Politics Quarterly 25 :497 516. American Journal of Political Science 41:738 70. Local Nexus in Policy Innovation Diffusion: The Case of School Publius: The Journal of Federalism 27: 41 60. icy Networks and Innovation Diffusion: The Case of Journal of Politics 60:126 48. Moo ney, Christopher Z., and Mei of Pre American Journal of Political Science 39:599 627. 54 U.S. House of Representatives. Committee on the Judiciary, Pr oblems Relating to a Federal Constitutional Convention by Cyril F. Brickfield, 85th Cong., 1st sess.

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114 petition variable. When a state petitions Congress, the event of interest occurs, and it is 55 are increa singly reported in the press, that its legislature will become more likely to pursue a petition asking Congress to pass a constitutional amendment for the direct election of Senators. My theory behind this is twofold. First, the press will provide an agend a setting function. The press will help to shape public opinion. State legislatures, work which demonstrates that electoral or other governmental reforms at the state lev el can be driven by a variety of factors such as, the professionalization of a legislature or the existence of ethics scandals. Specifically, state legislatures are responding to the agenda setting role of the press which shifts the self interest calculati on of the legislator to that of self preservation. Legislators therefore are more concerned about their immediate self interest than that of the institution. 56 The following covariates are included in the model as controls. Opponents of the proposed amendm ent argued that passage would move power away from rural to urban populations. The argument was that state legislative districts were dominated by rural constituencies, and that direct elections would shift Senate selection to more urban 55 See Box Steffensmeier and Jones (2004: 8) for a full description for how an event of interest transitions a case from one condition to another. 56 Rosenson, Beth. 2005. The Shadowlands of Conduct: Ethics and State Politics Washington, DC: Georgetown Press. See Smith and Fridkin as well as Therault for a discussion as to why this is more likely to a pply to minority party members.

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115 based constituenci es. 57 It has also been shown that states with large urban machines were quick to ratify the Seventeenth Amendment. Buenker finds during ratification that representatives of urban machines almost unanimously supported the amendment in state legislatures. 58 Sm aller states such as Rhode Island, whose rural constituencies yielded more p ower in the legislature were on e of the few states to block ratification. 59 I attempt to measure this phenomenon with the following variables. First, population is measured as the natural log of state population over time. Therefore, I argue that states with larger populations will be more likely to petition Congress for a consti tutional argue that states with more rural populations would be less likely to petition Congress. African American. States with higher African American populations were more likely to pursue measures to disenfranchise blacks during the Progressive Era and therefore were less likely to support democratic reforms such as the direct election of senators. Murphy writes at length about this inherent contradiction in Progressive Era politics where leaders seemed to be opening the political system for increased participation while decreasing opportunities for groups that were scorned at the time. 60 Therefore, I expect states whose population has a higher percentage of African Americans to be less likely to 57 Daynes, 23. 58 Buen Journal of American History 56: 305 22. 59 I bid. 60 Link, Arthur S. and Richard L. McCormack, 1983 Progressivism Illinois: Harlan Davidson, Inc. Riker, 1955. Murphy, 2006.

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116 support a constitutional amendment for the direct election of Senators. This will occur due to the desire of political elites in the state to keep control ov er Senate elections, and thus retain their ability to keep minority groups disenfranchised. Alternatively, newer states, such as those in the west tended to be at the vanguard of progressive democratic reforms. 61 Political reforms, such as direct democracy has been hypothesized by Price as well as Smith and Fridkin to be a function of a state 62 Mayhew developed a measure of years a state has been in the union as a proxy for state party strength. 63 This is due to the fact that t hese is expected that among states that have been in the union for a shorter per iod of time are less likely to have their legislature petition Congress. Thus, an additional control is the number of years a state has been in the union as a proxy for party organizational strength. Another control variable measures how large a legislativ e majority is in a particular state. It has been found by other scholars that states with smaller legislative majorities were more likely to have disputed Senate elections. 64 Specifically, this variable 61 Smith and Fridkin, 2009. 62 Political Quarterly 28: 243 62. Smith and Fridkin, 340. 63 Mayhew, David. 1986. Placing Parties in American Pol itics: Organization, Electoral Settings, and Government Activity in the Twentieth Century. Princeton: Princeton University Press. S ee also Smith and Fridkin, 340. 64 th Century Party Dominance: Evidence From Indirect Senate Elections 1871 of the American Political Science Association

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117 majority enjoys in the state legislature. 65 Cox Proportional Hazards models were run to determine whether said covariates led to state petitions calling for a constitutional convention. The Cox model is generally considered to be superior to alternative Eve nt History models when dealing with social science data. 66 The models below were run using the Exact Partial Likelihood and the Efron method. These are superior for dealing with tied data in the dependent variable. 67 Specifically, there are three years where amendment occur. The Exact Partial Likelihood method accounts for each of the possible orderings that these events could have occurred when they are tied for a given year. Tests for the Proportional Hazar ds assumption were also conducted. Results from both the graphical and Chi Square tests indicate that the proportional hazards assumption is not violated. The graph in Figure 5 2 displays the overall risk of a state petitioning Congress in a particular yea r. The hazard rate is known as the conditional rate of failure. This is the rate of an event, given that a person has survived up to that time. 68 The Y Axis in Figure 5 2 is the overall Hazard Rate for a state petition given the independent variables in a given year. The risk of a state petitioning Congress doubled from 1897 to 1902 as state 65 Several of these measures were collected from a dataset provided by Professor Daniel A. Smith. See Smith, Da American Political Science Review ( 102) :333 350. for more information. 66 Box Steffensmeier Janet M., and Bradford S. Jones, 2004 Event History Modeling: A Guide for Social Scientists Cambridge University Press. 67 Ibid. 68 It is given by the following formula: h i (t) = h 0 (t) exp( x ) Source: Ibid.

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118 legislatures began to react to the pressure of press coverage related to their disputed Senate appointments. This risk decreased slightly in 1904 and 1905 as disputes o ver Senate appointments waned during this period. This is followed by a dramatic i ncrease in risk for the remainder of the decade. By 1910, the remaining states in the union had an approximately 7% chance of passing a petition requiring Congress to call a constitutional convention. As stated earlier, only one more state was needed to call a convention. With states petitioning Congress at this high a rate, an additional petition seemed all the more likely. Figure 5 2. Risk of a State Petitioning Congress for a Constitutional Convention Table 5 4 provides an Event History Model explaining when a state legislatu re decides to petition Congress for a constitutional convention under Article V. The hazard ratio is the ratio of change for an event occurring given a one unit change in the .02 .04 .06 .08 1897 1902 1907 1912 Time

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119 co rresponds to a positive relationship between the independent and dependent the press, the more likely that state is to petition congress for a constitutional amendment calling for Senators to be elected by the people. The results of the multivariate models in Table 5 4 are pretty straightforward. States with more articles related to disputed Senate outcomes were 8% more likely in Model 1 to petition Congress. This result is significant at the (p<.05) level. An analysis of specific cases within the dataset yields an interesting pattern. Specifically, a state will undergo a Senatorial deadlock, it be reported in the press, first scandal in 1899 was quite explosive where the Speaker of the Assembly was accused of selling his vote to a Senate candidate. The speaker, who pronounced his innocence, sued the newspaper who reported the scandal for libel. This deadlock went over sixteen ballots without a conclusion. 69 California responded by petitioning Congress in 1903. West Virginia, well known for having several partisan related deadlocks during the 1880s and 1890s, petitioned Congress in 1900. New Jersey petitioned Congress in 1907 which was the same year as its first protracted deadlock since the Stockton case. Of course Delaware, the state most notorious for its deadlo cks and vacant Senate seats, petitioned Congress in 1907, after the state finally sent a full S enate delegation to Washington. 69

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120 Table 5 4. State Petitions for a Constitutional Amendment 1897 1912 Variable Model 1 Model 2 # of Newspaper Articles on Disputed Senate Outcomes 1.08** (.041) 1.09** (.033) State Population (Log) 1.97** (.603) 2.22** (.723) State Rural Population Percentage Number of Years in Union by State 0.96*** (.010) 27.50 (52.21) 0.97** (.012) Percentage Black Population by State 0.99 (.018) 0.97 (.021) State Majority Party >50% 0.98 (.020) 0.97 (.020) Log Likelihood = LR Chi2(df) = No. of subjects = No. of failures = Number of obs = 35.92 28.68 41 24 378 34.290 31.95 41 24 378 As expected, states that were in the union longer were less likely to petition Congress by four percentage points in Model 1. As mentioned earlier, this variable was included as a proxy for party organizational strength. Thi s result is at the (p<.001) level. result loses some statistical significance. Oklahoma petitioned Congress its first year in the union. None of the New England states petitioned Congress. This is not surprising since these states sent Senators to Congress who represented the existing power structure within the majority Republican Party. None of the states in the Deep South petitioned Congress. This lack of petitions fr om the older states of the New England and the Deep South regions demonstrate an affirmation of my hypothesis that states with

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121 stronger party organizations would be less likely to petition Congress, as both regions were known for having the most entrenched party systems in the country. States with higher percentages of African Americans were no more likely to petition Congress. This result is completely flat in both models. This null finding may be explained by the unwillingness of southern state legislatur es, who were almost uniformly Democrat to support the direct election of Senators. As mentioned earlier, and will be discussed at length in the next chapter, Senators from southern states were concerned about losing control over Senate elections and were l ess likely to support a proposed change unless it included a provision that changed Article I Section IV. Another expected result is states with larger populations were more likely to petition Congress at the (p<.05) level in both models. This result is dr iven by California, Pennsylvania, and Illinois, all which petitioned Congress by 1903. Illinois and Pennsylvania in particular endured scandals that were particularly memorable. Illinois and Pennsylvania were also known for their active urban machines duri ng this period. One counterfactual is New York, which did not petition Congress, and whose Tammany attributed to the presence of Senator Chauncey DePew, an ardent opponent of direct earlier in this chapter. The percent rural variable in Model 2 is in the opposite direction as expected, as states with a higher percentage of their populations livi ng in rural areas being more likely to petition Congress. This result should be viewed with caution since is not significant at any statistical level and produced a rather large standard error.

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122 majority had a minimal effect on calling for a constitutional convention. Although not statistically significant, as a Congress in Model 1. This unexpected result may be du e to the fact that many deadlocks over Senate appointments were also due to intra party factionalism. 70 States with majority parties that enjoyed comfortable margins (and therefore more intra party factionalism) and states with more partisan competition wer e both likely to endure disputes over Senate appointments. Conclusion This chapter begins by providing the progressive era context behind the building movement to reform the Senate. The press was clearly a critical actor in their role of chronicling both the Senate election deadlocks, and the corruption in the Senate as a whole. This coverage clearly sent a signal to the public that the Senate was awry and needed some kind of reform. A content analysis of articles in The Washington Post shows that close t o half of the articles whose major theme was on Senate elections focused on the deadlocks and scandals. This analysis also revealed spikes in coverage during some of the highly salient election cases covered in the previous chapter. Another interesting fin ding observed in Figure 5 2 is that articles related to the proposed direct elections constitutional amendment tended to lag close ly behind articles that focused on 70 Science History 22 (1): 83 116. their way to the U.S. Senate: Political Ambition and Career Building 1880

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123 deadlocks. This reveals that the press was somewhat responsive to the scandals and deadlock s in their calls for reform. Pressure was also building on the Senate from another institution, the state legislatures. More than two dozen state legislatures invoked Article V of the constitution in calling for a constitutional convention where the direct election of Senators would be addressed. 71 Petitioning by one more state would force Congress to call a constitutional convention to address the direct elections issue and potentially other reforms as well. This chapter also provided the first ever systema tic study of the timing and role of has informed our understanding of the role of party during the period of indirect elections as well as some of the determinants of v oting for final passage in Congress. 72 These works examine two important facets which led to the 17 th Amendment; the nature of deadlocked Senate appointments, and some of the incentives pushing Senators to support or oppose the amendment. However, no other study to date has examined why sta te legislatures chose to petition Congress to shift the power of electing Senators away from the legislatures, moving it directly to the people. Therefore, my analysis fills an important gap in the process that unfolded in the run up to the 17 th passage. 71 Haynes, 1930. Hoebeke, 1994. 72 Interest and the Senate Vote on Direct Elections Economics and Politics 2: 291 301. 16 th and 17 th Economics and Politics 10: 143 59. Stewart III, Charles and Wendy Schiller Before the Adoption of the 17 th Political Science Association, Chicago, IL.

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124 In conducting this analysis, I raise a few important issues. First, why did state legislatures choose to devolve the power of electing Senators to the people? Second, what kind of role did the press play both in shifting public opinion and in pressuring st ate legislatures to act? Last, how important was the timing of the petitions? An Event History Analysis revealed that states which generated more press coverage of scandals and deadlocks related to their Senate elections were more likely to petition Congr ess for the constitutional convention. This clearly indicates that the deadlocks and scandals were taking their toll on the state legislatures. In desperation, the states wished to delegate control over Senate elections to the people. Additionally, public pressure was mounting. Legislatures had no choice but to be responsive to their constituents. In answering the third question, I demonstrate how the rate of change in the number of petitions increased towards the end of the 1900s decade. This indicates tha t the chances of an additional state petitioning Congress became increasingly likely. Again, no other study has examined how these pressures on the state legislatures led towards increasing calls for a constitutional convention. Why was the Senate so intr ansigent up to this point? One obvious point is that Senators had an incentive to keep Senate elections they way they were. A Senator simply would not want to place himself at the whim of the individual voter. Another factor was that the Senate was control led by an old guard faction that was clearly opposed to any reform. How did this reform eventually pass? The next chapter will reveal three factors that led to the unlikely passage of the direct elections amendment. The first factor was the infusion of new members who were elected not by the state legislatures, but by an

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125 innovative reform. Second were two major scandals which rocked the Senate around 1910. Lastly, the Senate as an institution was threatened by the calls for a constitutional convention. A co nvention would potentially lead to multiple reforms, some which would period, such multiple reforms were within the realm of potential outcomes.

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126 CHAPTER 6 TIP PING POINTS AND CALL S FOR FINAL PASSAGE Introduction The previous chapter provided the Progressive E ra context behind the building consensus for the direct elections amendment. National press coverage focusing on disputed senate elections in particular, an d the degeneration of the senate as a whole in general was clearly building. Chapter 5 provided quantitative evidence that states with more press coverage related to disputed Senate elections were more likely to petition Congress under Article V, calling f or a constitutional convention to address the direct elections issue. As demonstrated in Chapter 5, a broad movement was building towards reform. This included the majority of state legislatures, the national press, and a majority of the House of Represent atives. However, the Senate did not even address this issue through the first decade of the 20 th Century. As mentioned in the previous chapter, the Senate was under the firm grip of leaders Nelson Aldrich and William Allison. Consideration of the direct el ections amendment would require a significant shift in the chamber. The tide towards reform in the Senate began to turn around 1910. A few factors were key towards this shift. The first were the petitions for a constitutional convention described in the pr evious chapter. Next, newer, reform minded members were elected to the Senate by an innovative reform which began in the states. Lastly, two prominent scandals emerged which engulfed the Senate. These events pushed the Senate into a defensive position, wit system was at stake. With the threat of a constitutional convention looming, and two

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127 scandals which clearly rocked the institution, the Senate was forced to act on a reform it was previously adverse to. This chapter provides a detailed examination of these final events leading to passage of the Seventeenth Amendment, calling for the direct election of Senators. ng how the 17 th Amendment eventually passed. This process occurred in two steps. In 1902, Oregon was the first state to pass a direct election method for U.S. Senators. This was followed by several other states that passed their own form of direct election legislation. Senators recently elected by what was known as the Oregon Plan provided 1 To use Elaine as intern al pressures cause actors to question existing procedures, norms, and structures. This is f ollowed by an infusion of new i nstitutional activists who facilitate a new vision for the organization. This shift produces a transformed institution with new proced ures, norms and structures 2 Although not the focus of her book, Swift posited that this type of transformation also occurred in the Senate of the Progressive Era. 3 precis ely, events occurring at decisive moments, creating a critical mass for a particular 1 Swift, Elaine K., 1996 The Making of an American Senate Reconstitutive Change in Congress, 1787 1841 Ann Arbor: University of Michigan Press. Schickler, Eric 2001. Disjointed Pluralism: Institutional Innovation and the Development of The U.S. Congress Princeton: Princeton University Press. Sim ilarly in the House, an insurgent group of progressive Republicans from the Midwest led a revolt against the strong power structure controlled by speaker Cannon. See Heckler, 1940; Harrison, 2004; Schickler, 2000 2 Swift, 1996. 3 Swift (1996) argues that reconstitute change occurred only three times in Senate history, the founding decades, the progressive era, and the reform period of the late 60s and early 70s.

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128 action to occur 4 The scandal surrounding the appointment of Senator Lorimer from Illinois and state petitions calling for a constitutional convention can be described as potential tipping points that pushed Congress over the edge. The controversy over the election of William Lorimer of Illinois engulfed the Senate and achieved considerable coverage in the press, 5 with his eventual expulsion from the Senate considered by s ome to be controversial. This is partially attributed to the fact that some of the individuals who accused Lorimer of bribery later recanted 6 Another important point is the strong relationship between the Senate vote to expel Lorimer and support for the 1 7 th Amendment. The Lorimer case was clearly viewed as presenting a political opportunity by amendment proponents. 7 Social Learning, Prospect Theory and Congressional Decisionmaking f final passage? Were they acting to their own personal benefit, or were there other factors at play? The events described over the past several pages reveal a Senate that was clearly on the defensive. When Senators voted on the 17 th Amendment, they were r become overwhelmed with the Lorimer case, with its hearings distracting senators from n was 4 American Political Science Review 94: 251 267. 2004. Politics in Time: History, Institutions, and Social Analysis Princet on: Princeton University Press. 5 Tarr, Joel A., 1971 A Study in Boss Politics: William Lorimer of Chicago Urban a: University of Illinois Press Hoebeke, C. H. 1995. The Road to Mass Democracy: Original Intent and the Seventeenth Amendment New Brunswick, NJ: Transaction Publishers. 6 Ibid. 7 Hoebeke, C. H. 1995. The Road to Mass Democracy: Original Intent and the Se venteenth Amendment New Brunswick, NJ: Transaction Publishers.

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129 at stake due to the threat of a constitutional convention. Therefore, the Senate passed this reform in a defensive posture, attempting to protect itself from these institutional threats. The process by which Senators processed and arrived at this dec ision occurred as a form of organizational learning. Learning occurs as individuals restructure their environmental perceptions through changes in decision making assumptions and interpretations. The learning process does not necessarily occur in a linear fashion, but in a process of testing new ideas and routines. Thus, the individual experiments through 8 The key to learning aggregate changes organizational behavior. 9 Another importan t component of organizational learning that contrasts this theory with rational choice is that individuals 10 This is particularly relevant for this study in that Senators were present ed with a choice of facing a potentially unrestrained constitutional convention, or amending the constitution on their own. Neither choice is optimal as they are both less favorable than the status quo. of organizational learning within the congressional context 8 Argysis, Chris and Donald A Schon. 1996. Organizational Learnin g II New York: Addison Wesley. 9 Compar ative Politics, 25(3 ): 275 93. 10 U.S. Government Estimates of Foreign Military 63.

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130 organizational environment. These institutional crisis moments lead members to question their epistemological assumpt ions about how the institution operates internally and with its power relationships in the broader political system. 11 Such a crisis moment presented itself as Congress faced an explosive scandal and the threat of a constitutional convention. With a constit utional convention, the Senate faced a potentially devastating change in its standing. Prospect Theory is a form of social learning that provi des a model that can provide some insight into these motives as to why the Senate eventually passed the 17 th Amen dment. 12 Previous work has depicted preferences among Senators on the Direct Elections amendment to be stable 13 I propose a more dynamic process that incorporates how environmental perceptions shifted the preferences of members for this legislation. Therefo re, Prospect Theory can inform our understanding of congressional decision making during situations perceived by actors as being uncertain, or even threatening to the institution. 11 derstanding Congressional Dynamics of American Politics: Approaches and Interpretations (Boulder: Westview Press, 1994) and Bruce I. Oppenheimer, eds. Congress Reconsidered 8 th Ed. (Washingto n DC: CQ Press, 2005). 12 mited information processing capacity of human beings. Most decisions take place in a complex environment, and include a multitude of considerations. Individuals have the capacity to focus on only a limited number of considerations when making a specific c hoice. Therefore the focus of our attention at a particular point in time provides a major component for how we make choices. Jones, Bryan D. 2001. Politics and the Architecture of Choice: Bounded Rationality and Governance Chicago: University of Chicago P ress. 13 Riker, William H. 1986 The Art of Political Manipulation New Haven: Yale University Press.

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131 This theoretical approach is more prevalent in the study of international r elations and has rarely been applied in the study of American politics 14 Prospect theory places context in a prominent role when actors make a decision under conditions of risk. A main assumption in prospect theory is that choice decisions are dependent on their perception of the options facing the actor as a loss or a gain relative to a neutral reference point. The reference point represents the status quo. position under uncertai competitive position as moving towards what they perceive to be a declining competitive position 15 Some scholars argue that Prospect Theory has potential to be applied to several question s in Political Science, especially questions dealing with group interactions. 16 Decisions are then broken down into a two step process: the editing phase and with the manner a choice se t is presented, and how said choices are distinguished. Choice outcomes are said to move the status quo from either a gains or losses frame on Figure 6 1 below For instance, in the debate over direct elections members were presented with two choices. The first choice is to continue to do nothing about the deadlocks and scandals associated with the existing method of selecting Senators and risk a 14 International Studies Quarterly 45: 617 640. Political Psychology 25 2: 289 312. 15 Political Psychology 25: 163 176. 16 McDermott, 2004.

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132 constitutional convention where the Senate could face the potential of a host of changes. The second choice is t o pass a constitutional amendment for direct elections. The evaluation phase of the decision making process is the phase in which the actual choice between options is made. The value function and the weighting function, which make up the evaluation phase, is i llustrated in Figure 6 1 17 Figure 6 1. Value Function in Prospect Theory of outcome alternatives 18 Notice that the convex segment of the s curve is steeper than the concave portion. Subscribers to the theory argue that this is an indication that losses loom larger than gains when making choices under risk. Prospect Theory scholars refer to this as the Therefore, when 17 Kahnman, Da Econometrica 46 (2): 263 292. 18 McDermott, 2004.

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133 movement from the status quo is perceived as a choice between negative outcomes, the actor is more likely to pursue risk seeking behavior. 19 This is known as the where the actor updates their weighted probabilities of various outcomes, then updates their preferences according to the reduction of risk 20 For example, Janice May has argued that petitions for a convention to propose constitutional amendments can be effectiv e at provoking Congress to act 21 By 1909 a total of 31 states applied, which was one state short of the two thirds required for a constitutional convention 22 An important facet is that the choice decision incorporates both a change in the value function a nd the probability function in Prospect Theory. 23 By 1909, w ith only one additional state petition required for a constitutional convention, the power of individual Senators and the institution as a whole was now at risk. It is most critical to point out th at once the state petitioning process reached the point of being one state short of a constitutional convention (31 state petitions total), the agenda. The Lorimer case notwiths tanding, Senators who were previously disposed to opposing Direct Elections, were now in a strategic environment where shifting their position may have been necessary for holding on to power. 19 Kahnman and Tversky, 1979. Quattrone George A., and Amos Tversky American Political Science Review 82 (3): 719 36. 20 Kahnman and Tversky, 1979. Decisionmaking on War an d Peace: The Cognitive Rational Debate ed Nehemia Geva and Alex Mintz Boulder: Lynn Reiner Publishers 21 Publius (17) No. 1, New Developments in State Constitutional Law, 1987. 22 Diamond, 19 80. 23 Levy, 1997: 38.

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134 More specifically, Congress not only faced the possibility of a direct elections amendment, but possibly a plethora of additional changes to the constitution. Calls for a constitutional convention and the Lorimer case were key external events that shifted eadership, especially in the Senate may have observed a shift in what Prospect Theory would call their value position from a gains frame to a losses frame once the petitions for a constitutional convention gained momentum. This may have been the final catalyst forcing leadership to come to terms with the obvious. The states had enough of the deadlocks and scandals. Congress had no choice but to act. Oregon Plan As discussed extensively in the previous chapter, progressivism was on the ascendancy during the first decade of the 20 th Century, and was spurred by the political Republicans. Roosevelt used the Presidency as a vehicle of driving public opinion towards a reform agenda. Several of these new members arrived at the Senate through an innovative process called the Oregon Plan, designed to give the people more power infusion of institutional activists is critical to unmasking how the 17 th Amendment eventually passed. In 1902, the state of Oregon passed a constitutional amendment allowing for a system of direct democracy in the state. In 1904, the voters of Oregon, became the first state to pass a system where voters indirectly elect members to the U.S. Senate. Oregon previously had placed Senate candidates to a popular vote, however members of the state legislature were not bound to vote for the plurality winner. This resulted in a controversial outcome i

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135 citizens of Oregon was not ratified by the legislature. The 1904 initiative was passed inaction during Senatorial e lections. 24 implementation of the Oregon System describes the frustration the legislature had with the existing mode of Senate elections : The record of the Oregon Legislature in Senatorial contests was the most disco uraging feature of our political system for years. The deadlocks which were often marked by wholesale bribery and fraud, and which often resulted in no legislation at all these deadlocks were the real cause of the adoption of the new method. The chan determination to take the matter out of the hands of the Legislature rather than to an indication on the part of the people themselves to make their own selection. 25 Central to what became known as the Oregon Plan asks candidates for the state legislature to sign a pledge that they will support the candidate for U.S. Senate who received a plurality in the statewide general election. All candidates were required to qualify by petition along with a 100 word statement on the policies they would promote while in office. Prospective candidates for the legislature were required to sign one of two statements pledging how they will vote in the U.S. Senate contest. Statement #1 in Oregon Direct Primary Law called for the candidate for state legi slature to vote for the candidate for Senator who received the highest number of votes at the previous election. Statement # 2 stated that the candidate was not pledged to vote for the plurality vote winner for Senate. 26 Obviously, candidates would be rathe r foolish to sign statement #2. This method became so popular among general citizens that a pledge 24 Ea ton Haynes, 1930: 100. 25 Eaton, 92 26 Ibid.

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136 circulated around the state where the signee stated that they would under no circumstance, vote for a candidate who did not sign statement #1. 27 Not only did this law make state legislators more accountable to the direct will of citizens, it also weakened state party control over Senate elections. 28 The Oregon System came under a test in 1908 when the popular Democratic Governor George Chamberlain emerged as the clear favorite of the public. When the legislature took office with a Republican majority, Chamberlain was elected to the Senate. This was due to Chamberlain receiving every vote from legislators who signed statement #1. 29 The Oregon System quickly took ho ld in other states. In 1909 Nebraska adopted an almost identical system with the support of William Jennings Bryan. North Dakota passed a law requiring prospective state legislators to take a vote, however it was in 1908 The court did uphold a requirement that candidates declare a candidate that they will support for the Senate. 30 This method became so popular that by the 62 nd Congress, 21 states had passed legislation for some form of the Oregon system. 31 Rise of the Insurgents 27 Haynes, 108 28 Ibid, 5. 29 Ibid, 102 103. 30 Ibid. 31 Kenny and Rush, 301.

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137 policy wishes of the old guard. 32 The presence of insurgent Republicans in Con gress such as Robert LaFollette of Wisconsin and Joseph Bristow of Kansas provided the 33 Much has been written on the role played by Republican Insurgents joining with House D emocrats in stripping the power of Speaker Cannon. 34 Administrative agencies also saw a similar type of transformation. Reformers also gained entry into these institutions, with tensions over organizational routines and administrative boundaries produced po wer struggles between various groups including industry, labor, consumers, and public servants. 35 replace the powerful alliance Nelson Aldrich (R RI) and William Allison ( R IA) held within the Republican Senate caucus. It was during this period where the caucus leadership developed procedures for committee assignments and scheduling legislation. Most importantly, norms were developed where individual Republican Senators cou ld compromise differences over legislation, thus leading to increased unity when bills reached the floor. 36 32 Elaine Swift, 1997. 33 Examples include the creation of the Interstate Commerce Commission, the inspection of food, and greater enforcement of the Sherman Anti administration See Link, Arthur and McCormick, 1983. 34 Hechle r, Kenneth W., 1940. Insurgency: Personalities and Politics of the Taft Era PhD Dissertation: University o f Columbia Harrison, Robert 2004 Congress, Progressive Reform, and the New American State Cambridge University Press. 35 Skowronek, Stephen. 1982. Building a New American State: The Expansion of National Administrative Capacities. New York: Cambridge Univ. Press. 36 Rothman, 1969

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138 The Aldrich Allison grip on the Senate was clearly waning. Drawing from Prospect Theory, Senate leadership must have recognized that power was slippi ng away due to the infusion of these new reform oriented members. Aldrich, Allison and their cohorts perception of the status quo down the value function away from a perc eption of gains and towards a perception of losses. Efforts at achieving institutional reform would not only need to undermine this power base, it would need to replace it. The controversial Payne Aldrich Tariff Act is not only an example of the sway held by the existing Senate leadership, but also a key to understanding how it unraveled during the elections of 1910. 37 The Republican insurgency gained its initial strength in the Senate as 11 Republicans joined with ariff legislation. This coalition proved to be successful as they gained concessions protecting agriculture and commodities in the Midwest and South. 38 I should briefly mention that institutional theory also depicts previously marginal groups as a catalyst for institutional change. 39 This alliance of insurgent Republicans and Democrats were able to gain control of the legislative agenda after the 1910 37 Hoebeke, C. H. 1995. The Road to Mass Democracy: Original Intent and the Seventeenth Amendment New Brunswick, NJ: Trans action Publishers. 38 Heckler, 1940. Rothman, 1969. Merrill and Merrill, 1971. Binder, 1997. 39 and the Transformation of U.S. Politics, 1890 1920. The American Journal of Sociology 98: 755 98 Pierson, Paul 2004. Politics in Time: History, Institutions, and Social Analysis Princeton: Princeton University Press.

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139 election. 40 After taking control from Aldrich led power structure, reform oriented Senators were able to im plement parts of their agenda which included the 17 th Amendment. 41 These Senators were also critical actors in unmasking a major scandal which rocked the Senate. This scandal, along with the state petitions for a constitutional convention shifted not only Senate leadership, but a majority Senators down Prospect system was at political system was at risk. This scandal and its considerable consequences will be discussed at length in the next several pages. Lorimer and Stephenson Cases Institutional theori sts also men tion the consequential role of tipping points or more precisely, events occurring at decisive moments, creating a critical mass for a particular action to occur. This is usually after a long period of pressures for institutional change building over time. 42 Two major Senate election cases emerged after the 1910 election, one in particular that fit the criteria of a tipping point. This tipping point was over the election of William Lorimer of Illinois. The controversy over the election of William 40 Haynes, George H. 1906. The Election of Senators. N ew York: Henry Holt and Company Heckler, 1940. Hoe beke, 1995. 41 Heckler, 1940 Hoebeke, 1995. Schickler, 2000. 42 Pierson, Paul 2004. Politics in Time: History, Institutions, and Social Analysis Princeton: Princeton University Press. Katznelson and Milner Political Science: The State of the Discipline New York: Norton.

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140 Lorimer achieved press coverage that was unprecedented. 43 expulsion from the Senate is considered by some to be controversial. This is partially attributed to the fact that some of the individuals who accused Lorimer of bribery later reca nted. 44 In the next couple paragraphs I discuss Isaac election, next I turn to the Lorimer case. In 1908, the state of Wisconsin held a primary to determine the nominees to be voted on by the legislature after the general election The eventual winner, Isaac 45 The committee on election was obtained through bribery. In a majority report Ste he level of bribery. 46 47 vacant, but charged that practices similar to the Stephenson case were rampant in the 43 Tarr, Joel A., 1971 A Study in Boss Politics: William Lorimer of Chicago Urban a: University of Illinois Press Hoebeke, 1995. 44 Tarr, 307. Hoebeke, 92. 45 e Washington Post Feb. 12, 1909 46 Haynes, 135 136. 47 Mar. 5, 1912

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141 Senate 48 In late March, by a vote of 40 34, 49 Both parties were relatively split on the roll call vote. 50 One light moment occurred when the Senate erupted in laughter when the em battled Senator Lorimer voted in support of Stephenson. 51 On April 30, 1910, The Chicago Daily Tribune published a first page article that set off a scandal that shook like an earthquake in the Senate. This article contained a sworn statement from Democrati c legislator Charles White that he was bribed to vote for Republican Senator William Lorimer during the 1908 Illinois senatorial election. 52 During his confession, White stated that he was given $1,000 by the Minority Leader in the Assembly and that several other members of the Democratic caucus who supported Lorimer received similar sums. The $1,000 was broken into $100 upfront money and legislative favors. 53 White wrote his own narrative of the events surrounding the Lorimer election and sold it to the Tribune for $3,250. 54 At the time, the Tribune was allied with a faction associated with Governor Deneen, an opponent of Lorimer and his faction over the years. 55 48 Ibid. 49 Ibid. 50 Ibid. 51 Haynes, 137. 52 Chicago Tribune April 30, 1910 53 Tarr, 235. 54 Ibid., 236. 55 Ibid.

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142 Lorimer and severa l leg islators asserted that White tried to blackmail them during conspiracy by the Tribune to ruin his political career. 56 However, in front of a grand jury one legislato r admitted to receiving money for a vote for Lorimer. 57 In a speech to the Senate, Lorimer asked that the Committee in Privileges and Elections investigate the charges against him. The committee responded in kind, appointing a subcommittee to look into the Lorimer election. 58 During the committee hearings a representative from the Tribune admitted that he could not provide a direct election was achieved by corrupt means. Several o f the legislators who were questioned stated that they would have voted for Lorimer regardless of the money offered. Others stated they supported Lorimer for patronage. 59 The subcommittee reported that there was no evidence Lorimer had directly bribed legi votes. Although the full committee voted 10 to 2 to accept the report, the debate over Lorimer exposed a fissure that was deepening in the Republican Party between the insurgen ts and the old guard. The insurgents were spurred on by former President even refused to sit at the same table with Lorimer during a speech Roosevelt gave in 56 Ibid, 240. he Washington Post May 29, 1910 57 Tarr, 237 238. 58 Ibid. 241 59 Ibid, 249.

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143 Chicago. 60 The old guard defended Lorimer and accused the insurgents of attacking the Senate establishment. 61 62 In a four hour speech on the Senate floor, L orimer was tearful in his defense, recalling his rise from humble beginnings, and claimed that Democratic votes were obtained due to personal friendships. 63 On March 1, the Senate voted to retain Lorimer by a vote of 46 to 40. This was one day after the Sen ate defeated a resolution for the direct election of Senators. As indicated by the table below, both parties were split over their support for Lorimer with the majority of Democrats supporting his ouster. In general, the Republicans were split between insu rgent and old guard members 64 In a recent work, Robert Harrison classified all the Republican Senators in the 61 st twenty five roll calls. 65 For the analysis in this chapter Republican Cluster Analysis score greater than 0.8. 66 60 Ibid, 244, 254. 61 Ibid. 256. 62 Ibid. 257. 63 e Washington Post Feb. 23, 1911 64 Tarr 264. he Washington Post Mar. 2, 1911 65 Cluster Analysis is a form of multidimensional analysis that takes a large group of cases, in this case Repub example. This procedure is performed by taking a large number of observations, and constructs a specific category based on similar responses to this set o f observations. See Lattin, 2003 for more information. 66 Harrison, Robert. 2004. Congress, Progressive Reform, and the New American State Cambridge UK: Cambridge University Press.

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144 Table 6 1. Vote to Expel Lorimer From the Senate in the 61 st Congress 67 Democrat Republican Total Total Total Insurgent Old Guard Aye Nay Total 18 11 29 22 35 57 12 0 12 10 35 45 40 46 86 This attempt to expel William Lorimer from the U.S. Senate failed by a vote of 40 46. The clearest pattern observed in Table 6 1 is the intra party split among Republicans. Insurgent members were unanimous in opposing Lorimer, with twelve voting for his ouster. 68 Although Old Guard members were more likely to support Lorimer by more than a 3:1 ratio, ten of these members voted against the party leadership. This high level of defections could be viewed as possible cracks in the leadership within the Republican caucus. Democrats were generally split on Lorimer. Out of the eighteen Democratic v otes to expel Lorimer, thirteen were from the South. However, several Southern delegations were split on this matter, which included Southern Senators who either voted to retain Lorimer or abstained. 911, the Illinois State known as the Helm Committee obtained testimony from a man named Charles Funk, claimed that a millionaire named Edward Hines asked him to r aise $10 ,000 to go into a $100, 000 fund for Lorimer. Other witnesses corroborated that Hines had approached 67 Tarr, 264. 68 One insurgent member, Senator Dolliver of Iowa abstained.

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145 them as well. 69 Upon hearing this new evidence, Senator Robert LaFollette of Wisconsin offered a resolution calling for the reopening of the Lorimer case. 70 O n June 2, 1911 the Senate voted to reopen the Lorimer case, appointing a subcommittee of eight members of the Committee on Privileges and Elections to investigate. The committee consisted of four Senators who voted for Lorimer in the previous Congress, one who voted against, and three freshman Senators. 71 Hines also testified in front of the Senate committee, claiming that he was acting merely as an agent of Aldrich, who wanted an additional Republican vote in support of his tariff legislation. Hines even we nt as far as to state that President Taft supported his efforts to get Lorimer elected. In a private letter and to a statement to Senator Kenyon, Taft 72 During hi election, while several witnesses from the lumber industry gave conflicting testimony. 73 Hearings also took place in Chicago, and reconvened in Washington on December 5. Lorimer took the stand, and he was questioned up until January 1912. 74 In his biography of Lorimer, Tarr argues that said testimony only reinforced those who were predisposed to vote for Lorimer and those who thought he was guilty. 75 69 Ibid., 270. 70 The Washington Post Apr 7, 1911 71 Jun. 2, 1911 72 Tarr, 275 277. 73 Ibid., 278 279;/ 74 Tarr, 282 283. 75 Ibid., 284.

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146 In late March, the subcommittee voted 5 to 3 to clear Lorimer of any charges. Although they ruled that Hines raised $100,000 to elect Lorimer, the subcommittee verdict in the previous Congress should be considered f inal, and that the Senate had no standing to retry Lorimer. 76 The minority retorted that the new testimony established that 15 votes which gave Lorimer the majority were obtained by corrupt means. The minority nd his seat vacant. 77 Debate on the Senate floor lasted until the summer. In general, insurgent Senators spoke in favor of the majority report. 78 When Lorimer spoke he went i nto a diatribe ervening in his case. 79 On July 13, the Senate voted to expel Lorimer by a vote of 55 to 28. 80 Table 6 2 below display the inter and intra party break down on the Lorimer vote in the 62 nd Congress. Overall, the Republicans were split with sixteen voting in favor and against expelling Lorimer from the Senate. The insurgents were again united, with none voting 76 77 Haynes, 132. Tarr, 294. 78 Tarr, 295 297. 79 Tarr, 300. 80 Haynes, 133 Tarr, 301.

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147 to retain Lorimer. Three insurgent Senators, Brown of Nebraska, Dixon of Mon tana, and Smith of Michigan by a much smaller margin. It should be mentioned that there were a high number of abstentions among non Insurgent Republicans. Perhaps many members who chose to abstai n realized the evidence against Lorimer was convincing, yet were unwilling to vote against the party leadership on this question. Table 6 2. Vote to Unseat Lorimer from the Senate in the 62 nd Congress 81 Democrat Republican 82 Total Total Insurgent Old Guard Aye Nay Total 29 8 37 16 16 32 6 0 6 8 13 21 45 24 69 Democrats were mostly unified in their desire to oust Lorimer by roughly a 3:1 ratio. This can be interpreted as a partisan stand, since Democrats were presented with an opportunity to embarrass the Republicans by contributing to vote out of office one of their members. There is no systematic pattern among Democrats who voted to retain Lorimer in the Senate. Tarr points out that 21 out of the 23 new Senators in the 62 nd Congress voted to expel Lorimer. Nine members who voted for Lorimer in the 61 st Congress voted against him in the 62 nd Congress. 83 The scandal surroun ding the appointment of Senator Lorimer from Illinois and state petitions calling for a constitutional convention can be described as potential tipping points that pushed Congress over the edge. On e important point in favor of this 81 Ibid. 82 There were 7 new GOP Senators in the 62nd Congress. Five of these members voted on the Lorimer question. Since the Insurgent classification is based on votes in the 61st Congress, these members were not classified into either the Insurgent or Old Guard categories. 83 Ibid., 304.

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148 argument is the strong r elationship between the Senate vote to expel Lorimer and support for the 17 th Amendment. However several issues were at play during the debate over the 17 th Amendment. This debate is the focus of the next several pages. Debate over Final Passage The Senate began to seriously consider the direct elections amendment during the 61 st Congress. Joseph Bristow, a Republican from Kansas, submitted said amendment to the Judiciary committee in December 1909. 84 On January 11, 1911 the amendment received a positive rep ort, written by William Borah of Idaho. The report argued how legislative elections diverted attention away from other legislative business, that economic and social changes since the founding called for reconsidering how Senators were elected, and that pu blic opinion was clearly in favor of this reform. 85 However, the committee reported an amendment with a particular change from the direct vote of the people in eac prescribed in each state by the legislature thereof Additionally, it stated that the power of Congress to regulate cong ressional elections under Article I Section Four did not apply to Senate elections. 86 Congress invoked Section Four in 1866 when it passed the Elections Bill regulating when state legislatures can consider Senate elections. This clause was clearly added to gain the support of southern senators who wanted to seize more control over elections in their respective states. This was a period when African 84 Haynes, 1930: 108 85 Ibid 86 Ibid, 109.

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149 Americans were largely disenfranchised throughout the South through the poll tax, literacy tests, grandfather c lauses, and other methods. Supporters of direct elections argued that this resolution was in fact two amendments, one to elect Senators by the direct vote of the people, and second to transfer power to the states over the regulation of Senate elections. Debate in the Senate turned i nto a discussion over federal control over Senate elections. Seizing what they perceived to be a new opportunity to defeat the amendment, members of the old line such as Chauncey DePew and Henry Cabot Lodge, denounced the amendment as being in direct contr adiction of the 14 th and 15 th Amendments. 87 Senator Sutherland, a Republican from Utah, and member of the Judiciary Obviously, this generated some consternation from sever al Southern Senators. Augustus Bacon of Georgia was one opponent of direct elections who fiercely opposed the Sutherland amendment. Although Bacon opposed the direct election of Senators, he to the Sutherland amendment and a means of nullifying Section Four. Bacon believed that this amendment would lead Congress to pass another Force Bill to enforce its will on Senatorial elections. 88 The supporters of direct elections felt the debate was dive rted to issues of race, took to get any reform through. Thus, the insurgents opposed the Sutherland 87 Congressional Record, 61 st Co ngress, Third Session, 1335. Murphy 2006: 281 282. 88 Murphy, 285 286

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150 amendment when it came to the floor. However, on February 11, 1911, the Sutherland amendment passed the Senate by a vote of 50 37. Each time the resolution came up during the session, southern members voiced their concerns that this amendment would give the Congress new powers that it previously had not used. Senator Le Ro y Percy of Mississippi even went as far to admit that his goal was the disenfranchisement of African Americans, and proceeded to make racist arguments in favor of the practice. 89 On February 28 the amended resolution was voted on. The resolution came up fou r votes short by a vote of 54 33 with four abstentions. One interesting point is that several of the old line Republicans who originally voted for the Sutherland amendment to be considered, voted against the resolution on final passage. Other scholars have indicated that this is a clear indication that the old line Republicans were more concerned with bringing a resolution to the floor that would generate a block of opposition from southern Senators. 90 Although the race question took up much debate during co nsideration of the amendment, there were several arguments made for an amendment on its merits. One constitutional convention called by the states. The previous chapter discussed how 31 states had petitioned Congress under Article V calling for a constitutional convention that would address direct elections, and potentially other issues. This was one state short of the required two thirds necessary for a convention, and with Arizona an d New 89 Ibid., 287 288. Congressional Record, Sixty First Congress, Third Session, 3541. 90 See Riker, 1955. Hall 159 160. Murphy, 2006, 289 290.

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151 Mexico on track to join the union, it was widely believed that these new states would provide the margin that was required. Weldon Heyburn (R ID) who opposed the direct election of Senators on the merits, voiced his fear over a constitutional convent ion: I should like to know what Senator would be willing to open the doors of a convention for the purpose and with the power of making an entirely new Constitution, for you can not limit the action of the American people if they should thus come together for the purpose of making the charter for their Government. The restriction that insures equal representation in this body would be wiped out, as would every other provision. 91 The following excerpt from a debate on the Senate floor between Heyburn and Suth erland also clearly indicates th e fear Senators had of a constitutional convention: Mr Heyburn: A constitutional convention is without limit as to its power. When the people of the United States meet again for the purpose of making an organic law, that pro hibition is at an end. Mr. Sutherland: Then the Government is at an end. Mr. Heyburn: The Government is being reborn. Mr. Sutherland: That is revolution. Mr. Heyburn: That is a possibility, and within the power of a constitutional convention, because a con stitutional convention represents all the people, and all the people can do as they please. 92 The toll the Lorimer case was taking on the Senate was another factor that moved d the Judiciary Committee favorably reported the amendment, the Lorimer case had the effect of delaying the consideration of an appropriations bill. There was also concern 91 Congressional Record 61 st Congress, Third Sess ion, 2766 92 Congressional Record 62 nd Congress, First Session, 1544

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152 all due to this deadlock. 93 By early March, an agreement was reached where a vote would be taken on Lorimer, followed by a quick consideration of Senate business. 94 However, debate over the Lorimer and Stephenson case continued to deadlock the Senate. These major distractions to Senate business caused one Senator to quit the committee on privileges and elections. The Senator felt the evidence in this case to be so overwhelming to the committee, that it would be next to impossible to arrive at a decision. To quote Senator Bailey on his resignation: I was appointed on the committee to investigate the Stephenson case, and it was simply impossible for me to do that work, and also to perform my duties as a member of the conference committee on the wool bill. 95 With five days left in the session, one article in the Washington Post described the military, diplomatic, Canadian reciprocity, and tariff reform were all being held up, in part to the proceedings over the Lorimer case. Night sessions and the possibility of a special session were all in discussion due to 96 Pressures were clearly building both externally a nd internally to the Senate. Some prospect theorists point towards similar pressures as pushing individuals to a losses frame where the status quo is considered unacceptable. 97 Taking the next step, passing the direct elections amendment with all the electo ral risks it carried for individual Senators, became an inevitability. 93 he Washington Post Jan. 9, 1911 94 e Washington Post March 1, 1911 95 e Washington Post Jul. 28, 1911 96 7, 1911 97 Annual Review of Political Science 8:1 21.

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153 Although supporters of direct elections lost the legislative battle in the 61 st Congress, they saw a golden opportunity that emerged from the 1910 elections. The new 62 nd Congress would see the Republican Party now in the minority in both houses, and many of the old line Republicans such as Aldrich and DePew not returned to the Senate. By his own vote count, Bristow estimated that 10 opponents of direct elections did not return to the Se nate and were replaced by as many as six supporters. Bristow felt these new members were not concerned with the race issue, and were more likely elections. 98 Once the 62 n d Congress convened, Bristow introduced a resolution to the Judiciary committee in the same form as it was voted on. During this same period, the House passed a resolution. When it arrived at the Senate, it also was referred to the Judiciary committee, with the committee choosing to favorably report the House version. Bristow offered his resolution as a substitute, with it being referred to now as the Bristow amendment. 99 The Bristow amendment generated a debate as heated and very similar to that which was ov er the Sutherland amendment in the previous congress. Accusations were made that Bristow was attempting to confer new powers to the federal government pragmatism, by vo ting against the Sutherland amendment in the previous Congress, then turning around and offering a resolution that leaves Section Four untouched, was 98 U.S. Senate. 1912. Resolution for the Direct Election of Senators 62th Cong., 2nd sess., S. Rept. 666: 8. Congressional Record Sixty second Congress, First Session,1482. 99 Ibid.

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154 considered to be an act of betrayal by some Southern Senators. 100 There was a tie vote on adoption of the su bstitute with the Vice President voting in the affirmative. On June 12, 1911, the Bristow resolution passed the Senate with 64 aye votes and 24 nay votes. There were five abstentions. 101 This was the first time in history that a vote on an amendment for the direct election of Senators passed the Senate. 102 Since the version that passed the House repealed Section 4, the resolution had to go to conference. After several months the chairman of the committee in the House relented and recommended that the House ado pt the Senate version. On May 13, the House voted favorably by an overwhelming vote of 237 to 39. 103 Roll Call Data and Stephenson cases described above, produced a setting whe re passage of the direct elections amendment became a reality. This chapter contains individual congressional roll call data on final passage of the 17 th amendment in the U.S. Senate. Roll call data was obtained from a larger dataset downloaded at www.vote view.com. This data source provides the result of every roll call vote made by individual members of Congress through the just completed 109 th Congress. of the 17th (or direct elections) Amendment. Therefore, the level of analysis is the 100 Congressional Record. Sixty second Cong ress, First Session, 1908 1909. 101 102 A roll call analysis of this vote is later in this chapter. 103 Ibid.

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155 passage in the S enate during the 62nd Congress. The direct elections amendment passed both houses during the 62 nd Congress. My main independent variable is Senators from states which have petitioned Congress for a constitutional convention. M embers who are from states who petitioned My theory behind this variable is twofold. First, Senators from petitio n states are acting as agents of their state legislatures, responding to their des ire for constitutional change. stake. These members are the most affected by the petitioning process, and are especially aware that the nation was one state shy of callin g a constitutional convention under Article V. This group of Senators was individually pressured by the press, their own state legislatures, and by the institutional breakdowns wi thin the chamber. Their individual reference points along the graph in Figure 5 1 moved to the losses domain, where the status quo was unacceptable. These members, especially those that were also not elected by the Oregon Plan were willing to put themselve s and their colleagues at electoral risk, for the sake of saving the institution. Another important variable is Senators who have been elected by the Oregon Plan. Previous work by Kenny and Rush has found that Senators who were elected directly by the Oregon Plan were overwhelmingly supportive of the 17 th Amendment. It was concluded by the authors that extending direct election to all Senators would favor

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156 members already elected by the Oregon Plan. 104 Senators who were elected by the Oregon plan are given a code of v ariable is available directly from 105 I expect this variable to also have a strong positive relationship when it is included in Models 1 and 3. This will demonstra te that support among Senators elected under the Oregon plan is a robust finding since these models have a different set of covariates than that used by Kenny and Rush. An additional variable is the cumulative number of articles related to disputed Senate elections for a particular state. I expect that Senators from states with more articles related to disputed elections will be more likely to support the 17 th Amendment. My theory behind this variable is that Senators from states whose disputed elections we re more highly reported in the press will endure increased pressure to support direct elections. These Senators will be responding to this pressure by both the public and the press by forgoing their immediate inter est and support final passage of the 17 th Amendment. 106 An additional facet to my theory is that these members will be more likely to recognize the stresses these disputes place on both the State Legislatures and the Senate itself. As is the case with members from petition states, these Senators wi ll passage of the amendment is a necessity. 104 The authors also found that Senators who faced a legislature from the opposite party were also likely to support the 17 th Amendment for similar reasons. Interest and the Senate Vote on Direct Elections Economics and Politics 2: 291 301. 105 Ibid. 106 Theriault, 2004. Feldstein, 2006.

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157 An important independent variable is Party. In this dataset, Democrats are coded a of roll call voting during various eras in Congressional history, Democrats assumed power in both houses after the 1912 election, making passage a more likely outcome. Why are Democrats more likely to support the amendment? King and Ellis find that Democrats benefited from direct elections. Since popular voting for Senator is aggregated at the statewide level, as opposed to the district level, the Democrats stood to bene fit in many states. 107 This is partially due to the fact that district boundaries were often drawn to benefit rural counties during this period. 108 I also expect senators from southern states to be less likely to support the 17 th Amendment. As discussed earli er in this chapter, southern Senators wished for their states to gain control over the manner that Senate elections would be conducted in their states. Southern members lost their argument for this change to Article I Section IV in the 62 nd Congress. There fore, these Senators would be less likely to support final likely to support final passage for said considerations. 109 Senators from the old Population size is another covariate in this model. I expect Senators from more highly populated states to be more likely to vote for passage of the 17 th Amendment. rman of New York, and 107 : The Case of Studies in American Political Development 10:69 102. 108 Ibid. Beunker, 1971 109 Wirls, 1999.

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158 Atlee Pomerone of Ohio all voted for final passage. Buenker finds during ratification that representatives of urban machines almost unanimously supported the amendment in state legislatures. This was mostly due to a sentiment at the t ime that state legislatures were being dominated by rural districts. Urban machines viewed reforms such as the direct election of Senators as way of shifting control of the Senate election process away from said rural constituencies. 110 Conversely, Senators from smaller states will be less likely to support the 17 th Amendment due to the interest of satisfying their rural state legislatures. Table 6 3. Final vote in Senate by Party and Petition State (62 nd Congress) Democrat Republican 111 Petition State Total Total Total Insurgent Old Guard Yes No Y 31 33 10 18 49 15 64 N 8 16 0 13 7 17 24 Total 39 49 10 31 56 32 88 As was the case with the model in Chapter 5, Years Since Statehood is included as a proxy for party organizational strength. Senators from states that have been in the union longer are less likely to buck their party leadership than members whose states have been in the union a shorter period of time. These mem bers rose through the ranks in party systems that were less developed. When confronted with a controversial issue, these members are less likely to take cues from the party leadership in the Senate and more likely to respond to the prevailing opinion back home. Therefore I expect Senators 110 American History 56 (2): 305 22. 111 There were 7 new GOP Senators in the 62 nd Congress. Since the Insurgent classification is based on votes in the 61 st Congress, these members were not classified into either the Insurgent or Old Guard categories.

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159 who are from states that have been in the union a shorter period of time to be more li kely to support final passage of the 17 th Amendment. Results The results in the Senate show some interesting patterns. According to the crosstab in Table 6 3 above, there were a higher percentage of Republican Senators than Democrats who supported the 17 th amendment. Similar to what was observed with the votes over William Lorimer, Insurgent Republicans were in unanimous support of the 17 th Amendment. Although they were split, an interesting finding was that a majority of Old Guard Republican Senators voted for final passage. There was some regional variation in how Senators voted. Many of the Republicans who opposed the 17 th Amendme nt were from the Northeast, whereas Democratic Senators who were in opposition resided in the South. There is a stark difference when comparing Senators from states that have petitioned Congress versus Senators from states who did not. This result demonstr th Amendment came from Senators from states who already petitioned Congress. By contrast, a small majority of Senators from non petition states voted against the amendment. The implications of this fin ding will be examined in further detail in a multivariate analysis included in the next few pages. This multivariate analysis of the vote on fin al passage is located in Table 6 4 Due to the small number of abstentions in the Senate, Binary Logit was used to model the vote for final passage. 112 Senators elected by the Oregon Plan were overwhelmingly 112 Binary Logit is depicted by the following equation: Source: Long, J. Scott 1997 Regression Models for Categorical and Limited Dependent Variables Thousand Oaks, CA: Sage Publications.

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160 more likely to support final passage. This result is particularly robust since it is positive and at the (p<.01) level in Model 2 which does not include the Petit ion variable, and in Model 1 which includes that variable. Although there is a positive relationship between both covariates, it does not reach the level of multicollinearity that would prohibit using both in the same model. These Senators elected by the O regon Plan, viewed direct elections, for obvious reasons, in a positive light. Most importantly, Oregon Plan Senators represented an infusion of institutional activists that were responsible for reshaping the institution. Similar to what Swift observed in the early Senate, these members held an institutional vision, one in this case that was independent of their 113 Part of reconstitutive change is that it is enduring in the institution. As will be observ ed in the next chapter, Oregon Plan members were not only catalysts in changing how Senators arrived at the institution, they also brought on lasting changes into how the institution functions internally and with the rest of the political system. Similar t o what was in the crosstabs displayed earlier, Senators from petition states were most likely to support final passage of the 17 th Amendment at the ( p <.01 ) level. Marginal effects show that Senators from petition states were 29.3 % more likely to vote for the 17 th Amendment then members from non petition states. These members were responding to pressures placed on them by their own state legislatures. By representing a state that has petitioned Congress, these Senators were well aware of their state legisla themselves and their colleagues at electoral risk appears puzzling at the surface, 113 Swift, 1997.

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161 Senators from petition states were responding to a threat to the very structure of the institution. This mot ivation will be discussed in more detail in the following paragraphs. Table 6 4. Final Passage on the 17 th Amendment in U.S. Senate Variable Model 1 Model 2 Model 3 Petition 2.14** (.884) 1.93*** (.710) Oregon Plan 3.60*** (1.228) 3.46*** (1.151) Disputed Senate Elections 0.20 (.297) 0.10 (.253) .14 (.265) Republican 2.54** (1.1112) 1.62* (.849) 1.20 (.782) South 0.42 (.970) 0.28 (.860) 0.58 (.797) State Population by Year (Log) 0.21 (.422) .13 (.355) .13 (.361) Number of Years in the Union 0.003 (.013) 0.02** (.011) 0.02* (.011) Log Likelihood N Pseudo R Square 29.317 88 0.431 36.90 88 0.284 32.813 88 0.364 Source: www.voteview.com Standard errors are in parentheses. These Senators fell into two categories. Some Senators from petition states were elected under the Oregon Plan and others were not. Senators who fit both categories were reacting to public pressure in the following way. The majority electo rate expected them to extend direct elections to the rest of the union. This result is consistent with for reform. 114 Likewise, members who were from Petition states, but not elected unde r the Oregon Plan were acting as agents for their state legislature. This is a clear example of members voting in a manner that put them in an electoral disadvantage 114 Theriault, 2004.

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162 (moving themselves from legislative election to direct election), by responding to pressu res presented to them by their direct constituents. 115 As mentioned earlier in this chapter, this group of Senators was individually pressured by the press, their own state legislatures, and by the institutional breakdowns within the chamber. Their individual reference points along the graph in Figure 1 moved to the losses domain, where the status quo was unacceptable. These members were willing to put themselves and their colleagues at electoral risk, for the sake of saving the institution. Although Senators who were from states with higher levels of articles related to disputed Senate elections that were reported in the national press were more likely to support the 17 th Amendment, this result was not significant a t any level in any of the models Could the fact that some Senators from dispute states were les s responsive be due to the fact that they benefited from the existing system? Specifically, I examined ses were driving this null result. Might Senators whose states have endured disputes more recently will be more likely to support the amendment? Models also were run truncating the dispute variable to include only articles since 1907. This result also yiel ded a null finding. Based on these findings, it can be concluded that Senators from states whose disputed Senate elections were more highly reported in the press were not necessarily more likely to vote for the 17 th Amendment. Many of these Senators benefi ted directly from the existing system, and were no more likely to support a change. 115 Ibid., 5.

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163 Party was another strong predictor of final passage. Being a Republican decreased the probability of voting for the 17 th Amendment by less than 27 %, holdi ng all other vari ables constant. This result is expected, as the old guard Republicans viewed direct elections as a threat to their institutional power. Democrats who were in the minority for many years, gained control after the 1910 election cycle, placing this reform squ arely on the agenda. One interesting facet is how Party interacts with the Petition and Oregon Plan variables. When the Petition variable is not included in Model 3, party loses its statistical significance and years since statehood has an expected negativ e relationship at the (p<.10) level. 116 Party is strongest in Model 1 which includes both Petition and Oregon Plan variables. This indicates a Republican member who went against their party and supported direct elections, was most likely to be from a Petitio n and/or Oregon Plan state. Therefore, these members were more likely listening to cues Since these members tended to be from Western states, this finding extends Wirl argument that regional intra party differences were a driving force in the passage of the 17 th Amendment. 117 The South variable is statistically insignificant. This is a null finding as it was expected that there would be a strong negative relationship be tween voting for the amendment and being from a Southern state since the final legislation did not include the changes to Article IV discussed earlier. A deeper look into the data reveals that ber to vote for final 116 A correlat ion matrix was run in an attempt to find any possible multicollinearity between the South, Years Since Statehood, and Oregon Plan variables. This test revealed that multicollinearity is not a problem between said variables. 117 Wirls, 1999.

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164 passage. All other Southern Senators who voted for the amendment were from the Peripheral South as defined by V.O. Key. 118 The Senators from Arkansas, Tennessee and Texas, who voted for final passage, were also from petition states. Per haps these members, who were all Democrats, were motivated more by partisan considerations than sectional ones when deciding how to vote. In Model 2 Senators from states that have been in the union longer were less likely to vote for final passage at the ( p<.05 ) level. Since this variable is used as a proxy for party organization strength, it can be interpreted that Senators who are from states with more established party systems were less likely to support final passage. However this variable loses its sta tistical significance when you add the Petition variable to Models 1 and 3. This should be expected, given the strong negative relationship between years in the union and petitioning Congress observed in Chapter 5. Many Senators from petition states tended to also be from states that were admitted to the union recently. This may explain the reason why the Years Since Statehood variable is not significant in Model 1. Conclusion This chapter demonstrates the role played by multiple factors in pushing the dire ct elections amendment over the edge in the U S Senate. There were three major factors at play. First, the institution benefited from the infusion of institutional activists, who were pushing for popular reforms against an intransigent old guard. Second, the opinion, and distracting members from other legislative business, proved to be the tipping point that pushed the Senate over the edge. Last, the Senate was facing 118 See Key, V.O. 1 949. Southern Politics in State and Nation. University of Tennessee Press.

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165 in stitutional threats. An exogenous threat was the state petitions calling for a constitutional convention for the direct election of Senators. An endogenous threat was the distractions Senators faced from their regular legislative business. Both these force s moved Senators to act in a defensive posture, acting in the interest of defending the institution and its standing in the national government. As discussed at length earlier, this chapter confirms earlier work on roll call voting over final passage of th e 17 th Amendment. As earlier studies have shown, Senators were more likely to vote for their self interest as opposed to ideology when voting on the 17 th Amendment. Senators who stood to benefit, mainly those who benefited by the Oregon Plan and members of the minority party were more likely than others to support final passage. 119 This study found mixed results as to whether intra party sectional differences also played a role. 120 Although Democratic Senators from the Deep South were almost uniformly against t he amendment, Senators from the Peripheral South were no less likely to support the reform. However, Republicans from states with less established party systems were much more likely to vote in the affirmative. However, this study also extends these works. Most importantly, this is the first roll call analysis of the final vote on the 17 th Amendment to include a variable measuring how Senators from states who petitioned Congress. Senators from petition states were responding to pressures placed on them by t heir state legislatures to pass this reform. The strength of this petition variable is reinforced by the fact that its statistical and 119 Interest and the Senate Vote on Direct Elections Economics and Politics 2: 291 301. Holcombe, Randall G., and Donald J. Lacombe 1998. 16 th and 17 th Economics and Politics 10: 143 59. 120 Wirls, 1999

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166 substantive significance remains strong in models that include and omit the Oregon Plan variable. Therefore, independent of members who were from states that used the Oregon Plan, Senators who were from petition states that did not use the Oregon Plan were just as likely to support the 17 th Amendment. Additionally, this finding extends par ty differences were a driving force in the passage of the 17 th Amendment. 121 One interesting result from the roll call analysis is why the disputes variable was not statistically significant even though there was such a strong relationship with the petition variable. As mentioned earlier, Senators who were from states with higher levels of articles related to disputed Senate elections that were reported in the national press were more likely to support the 17 th Amendment, however this result was not significa nt at any level. Perhaps newspaper reports of disputed Senate appointments were not as effective at pushing U.S. Senators towards reform as they were with State Legislators. Senators were just not as rattled by the investigative journalism. Public pressure appeared to be much more of a driver at the U S Senate level. This question should be looked at more deeply in future analysis. Eric Schickler argues that during any particular period in congressional history, a mix of interests motivate member behavior in Congressional reform efforts. 122 Any reform effort produces conditions that inspire a new coalition to pursue a counter reform. Such was the case with the Elections Act of 1866. This act set the conditions for the eventual passage of the 17 th Amendment through unintended consequences of this 121 Wirls, 199 9 122 Schickler, Eric 2001. Disjointed Pluralism: Institutional Innovation and the Development of The U.S. Congress Princeton: Princeton University Press.

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167 legislation. By unintentionally producing conditions that forced more deadlocks, the Elections Act produced an environment where calls for further reform were inevitable. This argument is consistent with t heories such as congressional cycles and reconstitutive change. 123 Reform at the state level produced entrepreneurs in the Senate who formed coalitions that not only increased their personal power, but also reshaped the institution. These new members were, in part, motivated by a reform agenda which had widespread popularity with the public. These new actors on the scene viewed the direct election of Senators not only as a popular and long needed reform, but as a gateway to other potential measures such as d Last, the emergence of an explosive scandal, along with calls for a constitutional faced a major threat of a constitutional convent ion, as close to three dozen states petitioned Congress under Article V. Such a convention would not only address the direct elections issue, but potentially several others, thus the Senate risked losing institutional power from multiple reforms. Roll call analysis in this chapter reveals that Senators from states who petitioned congress were the most likely predictor of support for the 17 th Amendment. This is consistent with theories that depict members as responding to popular pressures for reform. 124 123 Oppenheimer ed., Congress Reconsidered New York: Praeger Books. In Political Science: The Science of Politics New York: Agathon Press. Swift, Elaine K., 1996 The Making of an American Senate Reconstitutive Change in Congress, 1787 1841 Ann Arbor: University of Michigan Press. 124 Theriault, 2004.

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168 Most importantly, the eruption of the Lorimer scandal was the final tipping point that pushed the Senate over the edge. The Lorimer scandal achieved considerable attention both from the press and by the Senate itself. The Senate was so engulfed in this scandal that it distracted members from other legislative business, even placing the institutional power, acted in a defensive posture, realizing the losses associated with i naction. To do nothing not only meant the potential of future scandals to distract Senators, but also the real risk of substantial constitutional change. This risk, which was unacceptable to many, coupled with substantial public pressure meant that the mos t unlikely of reforms came to pass.

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169 CHAPTER 7 CONCLUSION th Amendment to the constitution. Connecticut was the 36 th state to pass the amendment, giving the amendment the necessary a pproval of two thirds of the states in the union. 1 On May 31, 1913, Secretary of State William Jennings Bryan, a longtime proponent of the direct election of Senators, signed the proclamation that the 17 th Amendment was now a part of the Constitution. 2 Wit h passage of the 17 th Amendment, all Senatorial elections from 1914 onward would be decided by the voters in each state. How did the new method of electing Senators change the Senate as an institution? Might other constitutional reforms take a similar road to passage? Impact of Direct Elections on the U.S. Senate The limited literature on the results of the 17 th Amendment has provided some interesting insight into the impact of this reform. Bernhard and Sala find that Senators were more likely to seek reel ection, and had slightly longer average tenures in office. These authors also found that Senators were more likely to moderate their voting behavior in the run up to a reelection campaign in a post 1914 context. 3 The Senate also began to mirror other elec ted institutions as its partisan distribution began to reflect the House, and shifts in seats began to mimic 1 The Washington Post Apr. 9, 1913. 2 Haynes, 116. 3 th Journal of Politics 68(2): 345 57.

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170 corresponding Presidential elections. 4 Senators also tended to be more dedicated in their roll call voting, with less abstentions during the period shortly after the 17 th Amendment was passed. 5 In the same study, Scott Meinke found that Senators elected after passage of the 17 th than Senators elected prior to 1913. 6 Implication s for Future Research There exist many opportunities to extend this study into related topics focusing on legislative deadlocks in particular and constitutional reform in general. Future research should more closely examine the impact deadlocks over Senate appointments had on legislative productivity at the Senate level. Future research should also explore whe ther time to consider legislation was delayed due to prominent scandals. This study documented instances where the Lorimer and Stevenson cases held up legislative business. A more systematic analysis should provide a closer examination of this issue. Anoth er research opportunity is to link the 17 th Amendment to other reforms during the Progressive era. Previous work has already done so in regards to the 16 th Amendment which instituted the income tax and the 19 th Amendment which provided for 7 Systematic examination into the 1907 Tillman Act which made it illegal for corporations or banks to make direct contributions to candidates for federal 4 Crook, Sara Brandes. 1992. The Consequences of the Seventeenth Amendment: The Twentieth Century Senate Ph.D. Diss. University of Nebraska. so distant Mirror: The 17th Amendment and American Political Science Review 91:845 854. 5 th es t Political Science Association 6 Ibid. 7 Holcombe and Lancombe, 1998. Meinke, 2005.

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171 office, or the campaign disclosure laws of 1910 and 1911 can provide insight into whether the theoret ical patterns which led to the 17 th Amendment are relevant to these reforms as well. 8 This study also built upon other work that focuses on legislative ethics reform. Why did Congress begin to implement serious reforms as late as the Progressive Era? Impr 19 th Century as a result of a lack of a party system. 9 A more systematic analysis that traces Congressional ethics reform over time might provide such an explanation. Additionally, studies that link legislative ethics and institutional learning are sparse in the literature. 10 Congress is a complex institution that constantly presents new ethical issues and new opportunities for corruption. 11 Work in this area might shed more light on how members react to scandal or drastic changes in their environment that produce unforeseen ethical issues. Implications for Future Constitutional Amendments Many petitions for a convention to propose amendments seem to have been intended to provoke Congress into acting, rather than actually call for a convention. Calls for a convention show members of Congress which issues are important to the 8 Drew, Elizabeth 1983. Politics and Money: The New Road to Corruption New York: Macmillan. Jennings and Daniel Callahan Ed Representation and Responsibility: Exploring Legislative Ethics New York: Plenum Press. 9 Ibid. 10 Callahan Ed Representation and R esponsibility: Exploring Legislative Ethics New York: Plenum Press. 11 Thompson, Dennis F. 1995. Ethics in Congress Washington DC: Brookings.

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172 states and their constituencies. For example, five states applied for a convention to repeal Prohib ition before the 21 st Amendment was proposed by Congress. 12 The 1960s was another period when a constitutional convention was almost called. Illinois Senator Everett Dirksen, led a movement to repeal the Baker v. Carr decision of 1962, which mandated that state legislative districts be equal in population. As with the 17 th Amendment, this proposal was one state short of the two thirds required for calling a constitutional conv ention under Article V. 13 Another close attempt to call a convention occurred when many state legislatures called for a balanced budget amendment in the late 1970s and early 1980s. Missouri was the thirty second state to petition Congress in 1982. The Sen ate responded by passing the balanced budget amendment by a vote of 69 to 31, whereas it did not come to a vote in the Democratic controlled House. 14 Were Senators acting on the defensive, concerned with a runaway constitutional convention? An interesting s tudy might be to examine the Senate debate and vote behind the balanced budget amendment to see if similar patterns arose that were observed with the 17 th Amendment. Rogers argues that the reason why the balanced budget amendment failed to pass the House w as that the passage of the Gramm Rudman Hollings Act of 1991 was considered to be a satisfactory result for the states. 15 12 Publius Vol. 17, No. 1, New Developments in State Constitutional Law (1987): 153 179. 13 Publius Vol. 11, No. 3/4, The State of American Federalism, 1980. 14 Rogers, James Kenneth .2007 Harvard Journal of Law & Public Policy 30 (3): 1005 22 15 Ibid.

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173 A balanced budget amendment is not the only constitutional reform that is popular with the public. Table 1 below presents public opinio n data from a Harris Poll showing overwhelming public support for a number of proposed constitutional amendments. Right behind the balanced budget amendment are legislative term limits which is supported by a little over seven out of ten respondents. Suppo rt for an amendment to ban same sex marriage is slightly below the two thirds threshold, however similar bans have passed at the state level in roughly three dozen states. Should a hypothetical Supreme Court ruling overturn these bans, there is the potenti al for latent public opinion to be activated in support of a federal amendment. A proposed ban on unfunded mandates to state governments is another reform that could be addressed by invoking Article V. Elimination of the Electoral College is one reform t hat was not included in the Harris survey. However, this proposal has some striking similarities to the direct election of Senators. The deadlock over the 2000 Presidential election has become a permanent fixture in American political history. Although 200 0 was the first election since 1888 where the Electoral College winner was different from the popular vote winner, a shift of a few thousand votes in one or two states would also have changed the outcome in 1960, 1968, 1976, and 2004. One unreported fact from that election is that a shift of a few hundred votes to Gore in Florida and a few thousand votes to Bush in Pennsylvania would have resulted in an Electoral College tie. This would have sent the Presidential election to be decided in the House of Repr esentatives. The last time this occurred was in 1824 with the election of John Quincy Adams.

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174 Table 7 1. Popular Support for Proposed Constitutional Amendments 16 Proposed Amendment Percent Supporting Percent Opposing Balanced budget amendment 76% 18% Term limits on Senators or Representatives 71% 23% Prohibit Congress from passing laws affecting state governments unless Congress gives the funding needed to pay for those laws 69% 22% Permit prayer at school meetings or ceremonies 67% 29% Allow Congress to regulate the amount of personal funds a candidate may spend in a campaign 65% 29% Define marriage in all states as the union of a man and a woman 64% 32% Source: Harris Interactive, 2005 Since Presidential elections have been relatively close in recent cycles, it is not out of the realm of possibility for future elections to produce an Electoral College winner that is different from the popular vote winner or even an Electoral College tie. Should a similar event to the 2000 election occur again, o r should a tie occur, popular support for an elimination of the Electoral College system will certainly increase. The Senate is an institution that is most likely to block such a proposal. Gaining the two thirds majority necessary for passage of a constitu tional amendment would certainly need the support of Senators from smaller states who benefit from the current system. Although the Senate presents a particular roadblock to a constitutional elimination of the Electoral College, a process similar to the ru n up to the direct election of Senators might produce such an outcome. 16 Ibid, 1021.

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175 Efforts are currently underway in the states to undermine the Electoral College where they would b e pledged to award their electoral votes to the plurality winner in a Presidential election. 17 plan. During the same year, similar legislation passed one chamber in Arkansas, Colorado, and Haw aii. 18 Conclusion This dissertation provided a mixed method approach in examining the many factors that led to the passage of the 17 th founding, tracing the philosophical underpinnings behind the framers design. Next, was an examination of the debates of how this institution would function within the broader political system. Once the constitution was approved and implemented, I examine how the early Senate developed its early norms, and dealt with early deadlock s over Senate appointments. Next, I looked at the first major effort to stem the tide of disputed Senate elections. This took the form of legislation designed to regulate how Senate appointments were conducted in the states. However, this new law presented some unintended consequences leading to even more deadlocks. This was followed by a historical analysis of the major deadlocks which rocked the Senate in the 1880s and 1890s. Both the state legislatures and the Senate endured the loss of legislative prod uctivity due to these deadlocks. The popular press responded by reporting on these deadlocks and scandals, helping to shape public opinion in favor of 17 Koza John R., et al. 2006. Every Vote Equal: A State Based Plan for Electing the President by National Popular Vote Los Altos, CA: National Popular Vote Press 18

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176 reform. Responding to the press and public opinion, state legislatures took it upon themselves to petitio n Congress for a constitutional convention to address the direct elections issue. Several states also responded by passing their own version of direct elections. The Senators elected by this new method provided a catalyst for eventual reform. An explosive scandal emerged around 1910 which forced the proposed amendment back on the agenda. Finally, out of desperation the Senate acted by passing the 17 th Amendment, providing for the direct election of Senators. What caused this reform, which seemed unattainabl e in the 1880s and 1890s to emerge so strongly shortly after 1910? First, the institution benefited from the infusion of institutional activists, who were pushing for popular reforms against an intransigent old guard. These members were directly elected by the population in a system that began in several states. played both in shaping public opinion, and distracting members from other legislative business, proved to be the tipping point th at pushed the Senate over the edge. Last, the Senate was facing institutional thre ats. An exogenous threat was state petitions calling for a constitutional convention for the direct election of Senators. An endogenous threat was the distractions Senators f aced from their regular legislative business. Both these forces moved Senators to act in a defensive posture, acting in the interest of defending the institution and its standing in the national government. Passage of the 17 th Amendment has not removed it from controversy. In fact, repeal of this reform has recently made its way into campaigns and policy debates at the state legislative level. In recent years, conservative personalities such as Alan Keyes, George Will, and Zell

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177 main argument is that the 17 th Amendment took away oversight rights the states had over the national government. 19 In fact, one commentator has called for a constitutional convention where the first item for consideration would be the 17 th repeal. 20 Thus, the work of reformers is never complete There will always be popular clamor to provide a more representative and responsive system. Likewise, there are sure to be scandals and inefficien cies that bring various reform proposals to light. Changes to the system, or even repeals of old reforms will surely be a constant as our system evolves in the future. 19 Misguided Call for Repealing the 17 th The New York Times Jun. 2, 2010 20 th

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178 APPENDIX A CODING SHEET FOR ART ICLES IN STUDY Variable # Variable name Variable Description Codes V1 Article article # 0001 9999 V2 Year What year was the article? 1877 1912 V3 Congress During which Congress was the article? 47 62 V4 Paragraphs How many paragraphs in the article? 1 20 V5 OutcomeDisput e Was the major theme of the article related to a disputed Senate outcome? 0= No 1= Yes V6 State IF YES IN V5: What state did the dispute occur? (STATE ABBREVIATION) V7 LevelDispute IF YES IN V5: At what level of government was the dispute? 0= State level dispute 1= National level dispute V8 DeadlockPartis an IF YES IN V5: Was the dispute partisan? 0= No 1= Yes V9 DeadlockScand al IF YES IN V5: Was the dispute over a scandal? 0= No 1= Yes V10 Bribe IF YES IN V9: Was the scandal bribery related? 0= No 1= Yes V11 Governor IF YES IN V5: Was the dispute over a Gubernatorial appointment? 0= No 1= Yes V12 SenateHearing IF YES IN V5: Did the article focus on a Senate hearing? 0= No 1= Yes

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179 Variable # Variable name Variable Description Codes V13 DeadlockOth er IF YES IN V5: What other reason was the deadlock over? (LIST REASON) V14 Name Name of disputed Senator (LIST NAME) V15 SeatLoss Did the article discuss the loss of a Senate seat due to a vacancy? 0 = No 1 = Yes V16 NewSenator Did the article announce the election of a new Senator? 0 = No 1 = Yes V17 Horserace IF YES IN V16: Did the article focus on the horserace of the Senate contest? 0 = No 1 = Yes V18 Endorsement IF YES IN V16: Did the article focus on an endorsement? 0 = No 1 = Yes V19 NoOpposition IF YES IN V16: Was the election the result of no opposition? 0 = No 1 = Yes V20 LongDispute IF YES IN V16: Was the election at the end of a long dispute? 0 = No 1 = Yes V21 Amendment Was the article focused on a proposed constitutional amendment for Direct Election of Senators? 0 = No 1 = Yes V22 Tone IF YES IN V21: What was the tone of the article? ( 1) = negative 0= neutral 1=positive

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180 Variable # Variable name Variable Description Codes V23 Paragraph Positive IF YES IN V21: How many positive paragraphs related to the Direct Election amendment in this article? 0 99 V24 Popular Interests IF YES IN V21: focused on popular interests for the Direct Election amendment? 0 = No 1 = Yes V25 Deadlocks/ Scandals IF YES IN V21: focused on deadlocks and scandals as the reason for the Direct Election amendment? 0 = No 1 = Yes V26 SaveSenate IF YES IN V21: focused on saving the Senate as the reason for the Direct Election amendment? 0 = No 1 = Yes V27 OtherPositive IF YES IN V21: Other reasons for the Direct Election amendment (LIST) V28 Paragraph Negative IF YES IN V21: How many Negative paragraphs related to the Direct Election amendment in this article? 0 99 V29 Tradition IF YES IN V21: Was the theme focused on tradition for opposing the Direct Election amendment? 0 = No 1 = Yes

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181 Variable # Variable name Variable Description Codes V30 TrustPeople IF YES IN V21: Was the theme focused on reason for opposing the Direct Elections amendment? 0 = No 1 = Yes V31 StatesRights IF YES IN V21: Was the theme focused on states rights as a reason for opposing the Direct Elections amendment? 0 = No 1 = Yes V32 NotRemedy IF YES IN V21: Was the Direct Elections amendment as not being a remedy for the problems in the Senate as a reason for opposing the amendment? 0 = No 1 = Yes V33 OtherNegative IF YES IN V21: Other reasons for opposing the Direct Elections amendment (LIST) V34 Debate If the debate over the proposed amendment occurred in Congress, was it in the House or Senate? 0 = House 1 = Senate

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196 BIOGRAPHICAL SKETCH Daniel A. Cicenia was born and raised in n orthern New Jersey After receiving his b arketing from Pace University in 1997, he worked in the survey research ind ustry. In 2004 he received his m cience from The University of Georgia.