Before the 17th amendment was ratified, senators were not chosen through direct elections as they are today, but were instead elected by a majority vote of their state legislatures. If a state’s House and Senate could not agree on a candidate, the two bodies would meet in a joint session, where a simple majority would be enough to win. Even after the strong showing by Republicans in the 2010 election, the Kentucky State House is controlled by a solid Democratic majority, and they have more than enough of a cushion to overcome the Republican’s numerical advantage in the State Senate and deny Rand Paul the seat.
Ron Paul is not the only politician to have called for a repeal of the 17th amendment, though. Several other candidates and officials, almost all affiliated with the Tea Party movement, have also criticized the amendment, saying that popular elections have allowed the federal government to grow in power at the expense of states’ rights. They argue that repeal would make U.S. Senators more beholden to their states and less dependent on fundraising from special interests. Before later changing his mind, unsuccessful Colorado Republican Senate nominee and Tea Party favorite Ken Buck stated that the 17th amendment has had “a horrendous effect…on the federal government’s spending.” For the record, the Colorado state legislature is divided in party control with a slim majority for the Democrats in a joint session so it is likely that Buck would have lost even if the 17th amendment had been repealed. Utah Senator-elect, Tea Party-backed Republican Mike Lee has also expressed support for repeal, saying "People would be better off if senators, when they deliver their messages to Washington, remember the sovereignty of the states.” Lee would have likely won the election if the 17th amendment had never passed because Republicans kept control of the legislature in Utah.
One of the great ironies of the repeal movement is that its strongest proponents would have benefitted the least from a return to indirect elections, at least based on the results of November’s election. In addition to Rand Paul’s seat in Kentucky, Republicans would have also lost the elections in Arkansas, Louisiana, and Illinois, which all have state legislatures controlled by Democrats, or at least have legislatures with enough Democrats to give them a majority in a joint assembly. Not a single Senate seat won by a Democrat would have gone to a Republican, and the GOP would have earned a net gain of only two seats, hardly impressive in a midterm year, especially considering the results in the House.
These results are, of course, all hypothetical. State legislators were not required to vote for members of their own party, and it is possible that a Republican could win in a legislature controlled by Democrats, or vice versa. The historical record shows, though, that before the 17th amendment was ratified, the overwhelming majority of legislatures chose to elect U.S. Senators of their own party. But who knows how voters would have behaved if the 17th amendment was repealed? Perhaps their votes for their state legislatures would have been influenced by the knowledge that they affected the outcome of the United States Senate election in their state. After all, during the great Lincoln-Douglas debates, the two men were not asking people for their votes, but instead urging them to vote for their party’s candidates for the State House and State Senate. Still, though, from the way many Tea Party politicians speak of any possible repeal, it seems like their assumption is that a return to indirect elections would lead to a more conservative Senate and a reduction in federal power. If the results of November’s election are any guide, however, this result is far from guaranteed, and opponents of the 17th amendment might want to think long and hard about what repeal would actually mean before pressing ahead with their cause.
Wendy J. Schiller is an Associate Professor of Political Science at Brown University. She is currently working with Professor Charles Stewart III (MIT) on a book that chronicles all Senate elections held in state legislatures from 1871-1913. Benjamin Xiong is a senior concentrator in political science and a research assistant on the project.