By Karl Kurtz
Jeopardy quiz:To gain the majority in the Illinois General Assembly in 1858. Read below the jump to find the question.
If the 17th Amendment had not been passed and U.S. senators were still chosen by state legislatures, the Senate likely would have been tied, 50-50, at the start of the current (113th) Congress. After the death of New Jersey Sen. Frank Lautenberg (D) last month and Gov. Chris Christie's appointment of Jeff Chiesa (R) to replace him, Republicans would have a 51-49 margin in the Senate.
I was inspired to make this calculation by this year's 100th anniversary of the 17th Amendment, passed by the Congress in May 1912 and adopted by the states, May 31, 1913. This Amendment to the Constitution took away the power of state legislatures to choose U.S. senators and substituted direct elections by popular vote.
How did I make this hypothetical count? It's not enough to simply count the number of legislatures controlled by each party at one point in time, as the National Constitution Center did in a blog posting that was reproduced in Yahoo News. That method produced this erroneous calculation:
Along strict party lines, the GOP would have 58 seats in the U.S. Senate, with 41 seats for the Democrats, and one seat deadlocked. That would put the Republicans within two votes of a filibuster-proof 60-vote majority.
This count is wrong for the simple reason that U.S. Senate elections are elected in three classes, ensuring that one-third of the members are elected every two years. Thus, it is necessary to look back at legislative majorities at the time that each senator was elected. It's also important to know that the state legislatures' election of senators took place in joint assembly, meaning that the majority of the total membership, regardless of chamber, prevailed.
So let's go through the calculations. First, the lineup of popularly elected senators by class at the start of the 113th Congress (before Sen. Lautenberg's death and counting the two independents as Democrats):
Note that there was no net difference in the 2008 class between direct and indirect elections in the number of Democrats and Republican (although the next table shows that eight directly elected senators--four Ds and four Rs--would likely not have been chosen under indirect elections). In 2010 Democrats would have had a net gain of four seats under state legislative elections compared to direct popular vote. But in 2012, Republicans would have picked up nine more seats in the Senate under indirect elections than they did under direct elections.
There are two important assumptions in this count of senators if chosen indirectly by state legislatures. The first is that state legislatures would vote along party lines to select senators of the majority party. Given the finding by Wendy J. Schiller and Charles Stewart III in a recent Brookings monograph that 98 percent of the senators elected between 1871 and 1913 were from the party that controlled the majority in the state legislature, this is a reasonable assumption.
The second assumption is that state legislatures would have the same make-up today if they had the responsibility of choosing U.S. senators. This assumption is a bit more risky because back in the day, state legislative elections were often fought out over who legislators would select as a U.S. senator. As an example, by now you've probably figured out that the question in the Jeaopardy quiz is, What was the goal of the Lincoln-Douglas debates? Their famous debates were aimed at electing enough members of their party to the Illinois legislature that they would be chosen as senator. In today's increasingly nationalized state legislative elections, adding selection of United States senators to the legislative agenda would make the stakes even higher and likely change electoral results in at least a few states. Nonetheless, I will stick with this assumption, as there is no other reasonable alternative.
Which of today's senators would be unlikely to have been elected by their state legislatures? Here is a list of 20 that would have had to convince enough members of the opposite party in the state legislature to vote for them to obtain a majority.
Elected U.S. Senators of Opposite Party from State Legislative Majority*
Skipping past the start of the current Congress to the present day, there was a great hue and cry among Democrats in New Jersey when Gov. Christie chose a Republican to replace Sen. Lautenberg. Imagine the national gnashing of teeth (among Democrats) or celebration (among Republicans) that would have occurred if his choice had resulted in a Republican majority in the Senate!