The Senate has two other notable distinctions from the House, one dealing with powers and the other with leadership. First, Article II, Section 2, Clause 2 defines the distinct role of the Senate, to provide checks on the President with respect to treatises and executive appointments. The President may make treaties with the “advice and consent” and a two-thirds vote of the Senate and, with “the advice and consent” of the Senate, may appoint “ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law.”
Delegates to the Convention debated the breadth of the “advice and consent” role, particularly as it relates to judges. While several delegates preferred that executive appointments should be approved by the “whole legislature,” Madison argued that “Besides, the danger and intrigue of partiality, many of the members were incompetent judges of requisite qualifications. They were too much influenced by their partialities.” (Records of the Federal Convention 1787, 13 June) Thus, Madison preferred that judicial appointments be made by the Senate, a body, “as numerous eno’ to be confided in–as not so numerous as to be governed by the motives of the other branch; and as being sufficiently stable and independent to follow their deliberate judgments.” (Records of the Federal Convention 1787, 5 June)
As Hamilton explains in Federalist, No. 75, Convention delegates had differing views on the roles of the President, Senate, and the House in terms of making treaties. He points out that, as a formal matter, the power of making treaties “does not seem strictly to fall within the definition of either [the legislature’s power to make laws or the president’s power to execute laws or provide for the common defense]”. Thus, a role for both is appropriate: “The qualities elsewhere detailed as indispensable in the management of foreign negotiations point out the executive as the most fit agent in those transactions; while the vast importance of the trust and the operation of treaties as laws plead strongly for the participation of the whole or a portion of the legislative body in the office of making them.” The two-thirds vote requirement ensured that a treaty would give a “reasonable regard to the major sense of the community.”
In neither case—appointments or treaties—did the framers provide much insight into what it would mean for presidents to seek advice from the Senate. Practices developed during George Washington’s presidency gave shape to this requirement, just as the Washington Administration shaped many other constitutional practices. For example, President Washington sought input from the senators of the states in which vacancies occurred in order to identify suitable nominees to fill the positions. The presidential practice of consulting “home-state” senators when making appointments continues today.
In terms of leadership, Article 1, Section 3 reads: “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” And, “The Senate shall choose their other officers, and also a President pro tempore, in the absence of the Vice President, or when he shall exercise the office of President of the United States.” In the ratifying convention of North Carolina in July of 1788, Mr. Maclaine, who observed the committee at the Constitutional Convention that introduced this provision, explained that the Vice President’s role in the Senate was a necessary consequence of the equal representation of states in the Senate. He held that “It was in the Senate that the several political interests of the states were to be preserved…” Thus, the presiding officer and tiebreaker could not be from among one of the states, rather “he represents no one state in particular, but all the states.” The Vice President is, “in consequence of his election, the creature of no particular district or state, but the officer and representative of the Union. He must possess the confidence of the states in a very great degree, and consequently be the most proper person to decide in cases of this kind.” (“North Carolina Ratifying Convention,” 1788)
17th Amendment: Direct Election of Senators
The nature of representation of the states in the Senate was significantly affected by the passage of the Seventeenth Amendment. The effort to amend the Constitution so that Senators would be directly elected by the people began with a resolution introduced in the House by New York Congressman Henry Randolph Storrs on February 14, 1826. (The following discussion of the evolution, enactment and ratification of the 17th Amendment draws mainly from Rossum 2001). From that point, 187 similar resolutions were introduced until the Seventeenth Amendment was ratified in 1913. Over time, the House passed six resolutions on different occasions before the Senate finally approved. The movement picked up steam in the Fifty-second Congress, when the Democrats took majority control in the House after the 1890 elections, and ultimately culminated in ratification of the Seventeenth Amendment twenty-three years later.
Several factors led to the Senate’s adoption of the Seventeenth Amendment. First, divided party control of state legislatures made it difficult for state legislatures to reach consensus on the selection of senators, leaving many states deadlocked, delayed, and in some cases unsuccessful in terms of seating Senators. The strategic actions of parties were aided by the Constitution; since the Constitution did not prescribe how the states should select their senators, practices varied from state to state. In some states, senators were chosen concurrently by separate votes of the House and the Senate, while in others the senators were selected by a jointly held vote of the two chambers. Some states began to select their senators using statewide referenda that directed the state legislature whom to select.
A law passed by Congress in 1868 attempted to solve the problem by combining concurrent and joint forms of election, but the law made the problem worse. On the one hand, the law allowed for a joint vote of the House and Senate in all state legislatures, but that vote would follow one day after each chamber voted for candidates concurrently and by voice vote. The public disclosure of voting preferences allowed the minority of one house to block or prevent elections from proceeding in the joint session of a divided legislature. Thus from 1885 to 1913, there were at least 70 deadlocked votes on election of US Senators by state legislatures. (Rossum 2001, 187-190)
Second, in order to break the deadlocks in the state legislatures, some politicians resorted to bribery and corruption. For instance, in 1899, Senator William Clark of Montana admitted to distributing $140,000 to state legislators in exchange for their votes. Even though bribery was not a widespread problem, a few high profile cases were enough to get the attention of most senators.
Third, the corrupt practices fed the populist movement, which had grown in strength in the late-19th and early-20th centuries. The Populists argued that Senators were privileged, wealthy, and unresponsive to the people. The Populists believed popular, direct election of senators would improve representation.
Finally, populism was complemented by Progressivism, which deemed direct popular election to be morally superior to election by state legislatures. Senator William Jennings Bryan (D-NE) stated: “if the people of the United States have enough intelligence to choose their representatives in the State legislature…, they have enough intelligence to choose the men who shall represent them in the United States Senate.” (Rossum 2001, 191)
These forces propelled a variety of movements and actions in the states: party platforms calling for direct election, direct primary elections—some of which asked state legislators to sign pledges of support to the winner of the primary—and, ultimately, a movement for a constitutional convention, that nearly reached two-thirds of the states by 1910. In light of this political pressure, on May 12, 1912, the Senate adopted the Seventeenth Amendment by a vote of 64-24 with 3 abstentions; the House followed suit, voting 238-39, with 110 abstentions. It took less than eleven months for states to ratify the Amendment, when Connecticut became the thirty-sixth state to vote in favor.
Rossum finds that during the many debates over direct election, only a handful of Senators raised concerns about how it would impact federalism. One Senator, Franklin Bartlett (D-NY) stated in a House debate during the Fifty-third Congress: “the Framers of the Constitution, if they were present in this House today, would inevitably regard this resolution as a most direct blow at the doctrine of States’ rights and at the integrity of the State sovereignties; for if you once deprive a state as a collective organism of all share in the General Government, you annihilate its federative importance.” Senator George F. Hoar (R-MA) agreed: “Here, in the State legislature, is to be found the great security against the encroachment upon the rights of the States.” (Rossum 2001, 219-20)