CR 11 – AS INTRODUCED

2014 SESSION

14-2133

10/03

HOUSE CONCURRENT RESOLUTION 11

A RESOLUTION commemorating the ratification of the seventeenth amendment to the United States Constitution.

SPONSORS: Rep. Horrigan, Straf 6; Rep. J. Schmidt, Hills 28; Rep. Timothy Smith, Hills 17

COMMITTEE: State-Federal Relations and Veterans Affairs

ANALYSIS

This house concurrent resolution commemorates the ratification of the seventeenth amendment to the United States Constitution concerning the direct election of senators.

14-2133

10/03

STATE OF NEW HAMPSHIRE

In the Year of Our Lord Two Thousand Fourteen

A RESOLUTION commemorating the ratification of the seventeenth amendment to the United States Constitution.

Whereas, prior to 1913 the United States Constitution provided that senators were elected by the state legislatures; and

Whereas, in May 1912 the United States Congress passed a proposal for a constitutional amendment requiring direct elections for the Senate for ratification by the states; and

Whereas, on February 19, 1913 the state of New Hampshire ratified the amendment; and

Whereas, the amendment was formally declared adopted on May 31, 1913 when ¾ of the states had ratified the proposed amendment, making it the Seventeenth Amendment to the United State Constitution; and

Whereas, on November 3, 1914 with the direct election of 32 United States Senators, Jacob Harold Gallinger became the first senator from New Hampshire elected by popular vote; and

Whereas, that the seventeenth amendment to the United States Constitution guaranteed the right of the people to elect their own United States senators; and

Whereas, that the first national general election for senators held 100 years ago was a huge step forward for democracy; now, therefore, be it

Resolved by the House of Representatives, the Senate concurring:

That the general court of New Hampshire hereby affirms the state's support for the direct election of senators; and

That copies of this resolution be forwarded by the house clerk to the governor and the members of New Hampshire's Congressional delegation.

Sen.Jacob Harold Gallinger (R-NH)

Sen. Lemuel Jackson Bowden (U-VA)

Testimony in favor of HCR 11

"A RESOLUTION commemorating the ratification of the seventeenth amendment to the United States Constitution."

State Rep. Timothy Horrigan; Strafford 6
January 30, 2014

In the interests of full disclosure, I will begin by confessing that I have a distant relative who was elected to the Senate before the Seventeenth Amendment was passed. My Great-great-great-great-uncle Lemuel Jackson Bowden was elected Senator from Virginia— not West Virginia— at the height of the Civil War by the legislative branch of Virginia's "Restored Government." That government is best known for splitting the Commonwealth of Virginia in two, but it continued to exist even after the State of West Virginia was created. Sen. Bowden was from Williamsburg, in the Tidewater region which remained under Union control throughout the war. He served as a Republican and Unionist Senator in the 38^th Congress from March 4, 1863 to his death on January 2, 1864. He previously served as the Mayor of Williamsburg and as a member of the Virginia House of Delegates.

I mentioned the creation of the State of West Virginia, which was controversial at the time. Virginia held a referendum on secession on May 23, 1861— and the secessionist side won by a landslide. However, there was never any referendum on splitting the state in two, and even though it was impossible to hold a referendum, many Virginians used the lack of such a referendum as an argument against recognizing the new State of West Virginia. Even as far back as 1861, it was commonplace to decide important issues by popular vote.

The Seventeenth Amendment was passed in 1913, soon after President Wilson took office. It is currently considered one of the landmark achievements of the "Progressive Era." But, direct election of Senators is an idea which predates President Wilson by many decades. It was one of several ideas considered during the original Constitutional Convention. That convention finally decided that each state should have two Senators, chosen by the state legislatures, and Article I, Section 3 stated:

Clause 1: Composition; Election of Senators

The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six Years; and each Senator shall have one Vote.

Clause 2: Classification of Senators; Vacancies

Immediately after they shall be assembled in Consequence of the first Election, they shall be divided as equally as may be into three Classes. The Seats of the Senators of the first Class shall be vacated at the Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happen by Resignation, or otherwise, during the Recess of the Legislature of any State, the Executive thereof may make temporary Appointments until the next Meeting of the Legislature, which shall then fill such Vacancies.

Sometimes this system worked well, sometimes it didn't work so well. There were numerous cases where state legislatures deadlocked, thus denying the people their full representation in Washington, DC. Even when the old system worked well, it often turned state legislative elections into straw votes for United States Senate. The most famous example came in the 1858 Illinois election, when the legendary Lincoln-Douglas debates took place. The voters were unable to vote for either Abraham Lincoln or Stephen Douglas: they were merely voting for state legislators. All 75 State Senators and 25 State Representatives stuck with their party when the legislature took a 54-46 vote in favor of Douglas. However, Lincoln's Republican Party won a slight majority (50.2%) of the statewide popular vote.

("One person, one vote" is, by the way, an very recently established tradition. It dates back only to the mid-1960s. As late as 1968, the most populous county in the United States— Los Angeles County, California— was represented by just one State Senator. Los Angeles County's district was 600 times as populous as a district made up of 3 rural counties along the Nevada border.)

In 1866, the Congress passed a law which attempted to regulate how state legislatures held their Senatorial votes. This is one of the few times when the Congress has attempted to compromise our nation's tradition of federalism by telling state legislatures how to do their business. This law just made matters worse. There were many bribery scandals, as well as several cases where state legislatures were rendered unable to function effectively. In one egregious incident, Oregon's House of Representatives went an entire two-year term without organizing, thanks to a dispute over a Senate election. By the time the 17th Amendment took effect in 1913, 31 of 48 states had some form of popular vote for US Senators.

New Hampshire was one of the 17 holdouts. Our first popularly-elected Senator was Jacob Harold Gallinger, who had been in office since 1891, and who was the President Pro Tempore in 1912-1913. The voters of New Hampshire chose the same man who had previously been elected four times by their General Court. The first Senator from our state whose service postdated the 17^th Amendment was Henry Wilder Keyes: he was a former State Representative, State Senator and Governor who was very much in the mold of Senator Gallinger. Even if similar individuals are being chosen, however, the direct election of Senators is still a huge step forward for democracy: the people's Senators are accountable first and foremost to the people they serve, rather than to politicians or special interests.

This is pure speculation on my part, but I personally believe that the two Senators who serve New Hampshire today would have been chosen by the General Court if the 17^th Amendment had never passed. The 2009-2010 General Court would still have elected Jeanne Shaheen and the 2011-2012 General Court would still have elected Kelly Ayotte .

Home

The Forgotten Liars

2014