Zoeller: Is There a Better Way to Select Indiana Senators?
The States’ Relationship with the Federal Government after Passage of the Seventeenth Amendment
By Gregory F. Zoeller* for The Indiana Policy Review
Many in our state and nation have serious concerns with the seeming dysfunction that grips Washington, and are searching for answers to what appear to be systemic problems. These problems raise questions that go to the structure of our constitution. Overlooked by many is the role of the states within our federalist system. Our system of dual sovereignty expects states to provide a healthy check upon the federal government just as the federal government checks state government. Often, members of the Indiana General Assembly and the public raise questions involving the changes that occurred with the passage of the Seventeenth Amendment, which provides for the popular election of United States Senators. This article reviews the history of the changes and attempts to answer questions about the current authority of our state legislature.
The Historical Overview of Senatorial Selection
Indirect Election Under Article V
Originally, the Constitution allowed state legislatures to select Senators and allowed the people to directly elect members of the House of Representatives. The Founders established a bicameral legislature with members from each house selected through different procedures to ensure that the federal government did not trample the rights and powers properly reserved to the states. Federalists and Anti-Federalists alike agreed that a Senate composed of members selected by the states and acting as agents on the states’ behalf was necessary to protect the states from an over-reaching federal government. The indirect election of Senators distinguished their role from that of their colleagues in the House of Representatives: The members of the House represented the people, while Senators represented the states. The indirect election of Senators had several benefits for both the states and the federal government.
First, and most importantly, it made the federal government more accountable to state governments. State legislatures originally selected Senators to serve as the state’s agents in the federal government, and act on the states’ behalf. These agents performed the necessary check on the House of Representatives by ensuring that the federal government did not pass legislation that would impose onerous burdens on the states. Further, because only the Senate can ratify treaties and confirm judicial and executive branch appointees, the original system gave the states a voice in these important national issues.
Second, the original method of selecting Senators established true bicameralism in the federal government. The founders established a bicameral legislature to ensure that different interests and constituencies would be represented when legislation was debated. The House of Representatives represented the people, while the Senate represented the states. The best way to ensure that the federal legislature did not pass legislation that benefited special interests was to divide the legislature into different branches, with members that were selected using different systems, and delegated different functions.
Direct Election Under the Seventeenth Amendment
Despite these benefits, by the early Twentieth Century, many people wanted to institute direct elections. According to some sources, the amendment was ratified in 1913 to address problems with legislative selection that included Senate seats going unfilled for years because of state legislature corruption, bribery and disagreement on candidates. For instance, a conflict in Indiana between Southern Democrats and Northern Republicans in the mid-1850s left one seat vacant for two years, paving the way for forty years of bribery. Many people also perceived the body as too elitist, and too far removed from concerns for the welfare of the people. The amendment’s proponents argued that it would unburden state legislatures from the time-consuming process of selecting Senators; eliminate corruption from the selection process; and further the goals of democratic representation.
After the Seventeenth Amendment was ratified, the federal government increasingly passed legislation that burdened the states or infringed on powers traditionally reserved to the states. Such legislation took the form of unfunded mandates; requirements that state governments act pursuant to federal government direction; and infringements on the states’ traditional police powers. Given these types of legislation, it is understandable why state lawmakers would be interested in holding the federal government more accountable.
Two Methods for Holding the Federal Government More Accountable to the States
State legislatures that wish to hold the federal government more accountable can either directly repeal the Seventeenth Amendment by following the Article V processes or amend their state’s primary election statute to allow state legislative caucuses to select their party’s nominee.
- Repeal the Seventeenth Amendment
The most direct option is to repeal the Seventeenth Amendment and return the senatorial selection process to the state legislatures. However, this cannot be accomplished on a state-by-state basis. The Seventeenth Amendment can only be amended by ratifying a separate amendment through the Article V process that repeals the Seventeenth Amendment.
Article V establishes two methods by which the constitution may be amended: Either two-thirds of both Houses of Congress propose the amendment or two-thirds of the states call a constitutional convention. Amendments proposed by either method “shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three-fourths of the several States, or by Conventions in three-fourths thereof . . . .” A state that ratifies an amendment agrees to be bound once three-fourths of the states have so agreed. There is no guidance in the text of Article V or from contemporaneous expressions of its draftsmen that addresses whether a state may rescind its ratification.
Congress declared the Seventeenth Amendment ratified on April 8, 1913, with the Secretary of State issuing his proclamation regarding same on May 31, 1913. At that point, the Seventeenth Amendment became a part of the United States Constitution. There was no further action that could be taken by a state legislature regarding this matter after the ratification. A constitutional amendment “by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.”
Therefore, the states must follow the Article V procedures to amend the Seventeenth Amendment. One option available to state legislatures is to wait until Congress passes an amendment repealing the Seventeenth Amendment, which would become effective if three-fourths of the states ratify it.
Another option available to state legislatures is to convene a constitutional convention and instruct their delegates to ratify an amendment repealing the Seventeenth Amendment. The validity of delegate instructions have not been heavily litigated, but would likely be upheld in this context. A handful of state courts, two federal district courts, and the Eighth Circuit Court of Appeals have all considered whether voters can issue binding instructions through a referendum to their Senators or Representatives to vote for a particular amendment. These courts have unanimously struck down the proposed instructions. However, these cases likely do not prohibit state legislatures from instructing delegates to an Article V constitutional convention.
The Founders intended members of Congress and delegates to constitutional conventions to act under instructions from their state legislatures, and in fact the Founders themselves acted under such instructions. For instance, the New York legislature instructed its delegates to the Continental Congress to call a constitutional convention to amend the Articles of Confederation; once the convention had been called, the Delaware legislature instructed its delegates to not amend Article V of the Articles of Confederation, which required equal representation for each state in Congress—an instruction that played a pivotal role in the Senate’s eventual structure; and following the convention, four of the nine states required to ratify the constitution did so with the express instruction to their respective congressional delegations to amend the constitution to include a bill of rights. Based on this history from immediately before, during and after ratification of the constitution, courts would likely uphold a state legislature’s instruction to its convention delegates to repeal the Seventeenth Amendment.
However, it is important to note that in the 226 years since the states ratified the constitution, the states have never convened a constitutional convention. Therefore, the next section addresses a measure that the General Assembly could take on its own initiative that would have a similar effect to repealing the Seventeenth Amendment without having to rely on actions in other states.
2. Amend Ind. Code § 3-10-1-4(a)(1)
Another option in addition to convening a constitutional convention is for the General Assembly to amend the statute that established primary elections for Senate candidates. Under the Seventeenth Amendment, Senators must be elected through a popular election, but the manner of choosing the party nominees who compete in the general election is left to the states, and states do not need to use direct primaries. Indiana has chosen to use a primary election to select Senate nominees for any party that received at least 10% of the vote in the most recent Secretary of State race. Currently, most states, including Indiana, select their party nominees through a direct primary, while the remaining four states use party conventions in some capacity. For example, party nominees were historically chosen in Utah through party conventions, but if no candidate receives 60% of the vote of the delegates, the state holds a run-off election.
Indiana could amend its statute to allow each party’s legislative caucus to choose their party’s nominee for the general election. The people would then vote on the candidates in November at the general election in accordance with the Seventeenth Amendment. To ensure that third-party candidates still have access to the ballot, third-party candidates could be selected by the procedures currently in place if their party has no members in the state legislature. In addition to being permissible under the Seventeenth Amendment and Article I, § 4, clause 1, the amended process would have several important benefits.
Allowing the legislative caucuses to select the parties’ nominees would once again allow states to hold the federal government more accountable because Senators would view the states as their constituents and act in their states’ interests. Viewing states as constituents would help ensure that Senators did not pass legislation that would impose unfunded mandates on states, force state officials to act at the federal government’s direction, or infringe on traditional state police powers. As representatives of both the people and the states, Senators would have the ability and obligation to pass legislation that benefits the people in a way that does not harm the states.
Although the agency relationship would not be as direct as in the pre-Seventeenth Amendment era, the relationship would likely be stronger than in the Seventeenth Amendment era because a Senator who failed to consider his or her state’s interests when deciding how to vote on legislation would risk losing the party’s nomination in the next election.
It would also re-establish a greater degree of true bicameralism in Congress because the members of each house would be selected through different processes and would have to answer to different constituents — members of the House would answer to the people while Senators would answer to both their state legislatures and the people.
Legislative nomination would also reduce the amount of influence that interest groups could exercise over Senators because Senators would no longer need to raise as much money for campaigns. Before the Seventeenth Amendment was ratified, special interests had to successfully lobby a majority of state legislators to support a particular United States Senate candidate before they could exert direct influence over the Senator. The special interests would need to spread their resources around to influence a majority of legislative leaders or at least the swing voters or influential legislators. In the current Seventeenth Amendment era, the special interests only need to influence the individual Senate candidate, which they can do by providing or withholding campaign contributions during the primary and general elections. The pre-Seventeenth Amendment process therefore forced the special interests to spend more time and money than the post-Seventeenth Amendment process.
Currently, special interest groups contribute millions of dollars to primary election campaigns but considerably less money to nominating processes such as conventions. Amending Indiana’s statute would not completely eliminate the special interests’ influence over Senators because the interests would still be able to contribute to the candidates’ general-election campaigns. But it would appear to have the likely effect of reducing their influence because the candidates would no longer need to raise large sums of capital in order to wage expensive primary campaigns. Senators would also be less susceptible to special-interest influence once in office because the Senators would risk not being re-nominated if they supported legislation that benefited special interests at the state’s expense.
Legislative selection also would actually increase the number of residents who participate in the selection process. Voter turnout is historically low in Indiana primary contests. In the past five election cycles involving a United States Senate race, voter turnout for the primary has averaged 21%. Even in the hotly contested 2012 primary cycle, voter turnout only reached 22%. In contrast, voter turnout for the general election has averaged 47% in the past five general election cycles involving a United States Senate race, with a high of 58% in 2012. Therefore, although Indiana residents would not directly select the parties’ nominees, amending Indiana’s statute would ensure that more residents actually participate in the selection process by voting for the individuals in the general election, state Senators and Representatives, who would ultimately select the parties’ nominees.
Finally, legislative nomination would not suffer from the gridlocks that some states, including Indiana, experienced before the Seventeenth Amendment was ratified. The pre-Seventeenth Amendment gridlocks were primarily caused by the Election Act of 1866, which required a majority of both houses to select a candidate before he could be appointed Senator. When different parties controlled each house, the state legislature could become deadlocked. Under the amended statute, however, the legislative caucuses of each party would select the candidates for the general election. Thus, regardless of which party controlled each house, the parties would still be able to advance their own candidates to the general election. Gridlock between the House Democrat caucus and Senate Democrat caucus or between the House Republican caucus and Senate Republican caucus would not be as likely to occur as gridlock between chambers controlled by different parties.
In short, an amended statute would allow Indiana to enjoy some of the benefits associated with the original method of senatorial selection without depriving the people of their choice of Senator.
State legislatures have several methods to hold the federal government more accountable. This article presents two: 1) Indiana could repeal the Seventeenth Amendment either by ratifying an amendment passed by both houses of Congress that repeals the Seventeenth Amendment or by calling a constitutional convention and instruct their states’ delegations to pass an amendment repealing the Seventeenth Amendment; or 2) Indiana could pass a law that allows the state legislature to select the two candidates who will represent their parties in the general election. Although each method would achieve a similar result, if Indiana wishes to act on its own option 2, passing its own law is the most efficient option as the Article V amendment process requires action in other states as well as Indiana.
* Attorney General of Indiana; J.D., 1982, Indiana University Law School-Bloomington.
 U.S. Const. amend. XVII (“The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”) (emphasis added).
 U.S. Const. art. I, § 2, cl. 1 (“The House of Representatives shall be composed of Members chosen every second Year by the People of the several States.”); U.S. Const. art. I, § 3, cl. 1 (amended 1913) (“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.”).
 See Todd J. Zywicki, Beyond the Shell and Husk of History: The History of the Seventeenth Amendment and its Implications for Current Reform Proposals, 45 Clev. St. L. Rev. 165, 170 (1997) [hereinafter Zywicki, History] (citing The Federalist No. 51 (James Madison) (explaining that different methods should be used to select members of the two houses of Congress as a “means of keeping each other in their proper places”)); Todd J. Zywicki, Senators and Special Interests: A Public Choice Analysis of the Seventeenth Amendment, 73 Or. L. Rev. 1007, 1014 n. 42, 1034 (1994) (citing 2 J. Elliot, The Debates of the Several State Conventions on the Adoption of the Federal Constitution 319 (1901) (remarks of A. Hamilton at New York ratifying convention) (“The equal vote in the Senate was given to secure the rights of the states . . . .”); 2 J. Story, Commentaries on the Constitution 179 (1833) (“The equal vote in the Senate is, . . . at once a constitutional recognition of the sovereignty remaining in the states, and an instrument for the preservation of it. It guards them against (what they meant to resist as improper) a consolidation of the states into one simple republic.”)).
 See Zywicki, History, supra note 3 at 170–71 (citing The Federalist No. 62 (James Madison) (explaining that allowing the states to select United States Senators would give the states “an agency in the formation of the federal government as must secure the authority of the former [the states]; and form a convenient link between the two systems”); The Federalist No. 59 (Alexander Hamilton) (explaining that although problems might arise from allowing state legislatures to select Senators, such problems were a necessary evil because to exclude the states from the federal government “would certainly deprive the State governments of that absolute safeguard which they will enjoy under this provision”); James Madison, Notes of Debates in the Federal Convention of 1787 74 (1966) (statement of Roger Sherman) (“If the State [governments] are to be continued, it is necessary in order to preserve harmony between the Nation and State [governments] that the elections to the former [should] be made by the latter.”); Debates in the Federal Convention of 1787, S. Doc. No. 404, 57th Cong., 1st Sess. 10 (1902) (statement by George Mason) (explaining that the national government can only be restrained from “swallow[ing] up” the state governments by “securing to the state legislatures the choice of the senators of the United States”)).
 Id. at 172.
 Id. at 170 (citing The Federalist No. 62 (James Madison) (explaining that the process of legislative selection provided “a convenient link between” the state and federal government and provided the states with agents in the federal government)).
 Id. at 171.
 Jay S. Bybee, Ulysses at the Mast: Democracy, Federalism, and the Sirens’ Song of the Seventeenth Amendment, 91 Nw. U. L. Rev. 500, 515 nn. 88, 95 (1997) (making this connection) (citing The Federalist No. 76 (Alexander Hamilton); The Federalist No. 64 (John Jay); The Federalist No. 66 (Alexander Hamilton)).
 Zywicki, History, supra note 3, at 176 (citing The Federalist No. 51 (James Madison) (“In republican government, the legislative authority, necessarily, predominates. The remedy for this inconvenience is to divide the legislature into different branches; and to render them by different modes of election, and different principles of action, as little connected with each other, as the nature of their common functions and their common dependence on the society, will admit.”)).
 The Seventeenth Amendment was proposed by the 62nd Congress on May 13, 1912, and was declared, in a proclamation of the Secretary of State dated May 31, 1913, to have been ratified by the legislatures of 36 of the 48 States. Ratification was completed on April 8, 1913.
 Direct Election of Senators, http://www.senate.gov/artandhistory/history/common/briefing/Direct_Election_
Senators.htm, (last visited June 11, 2014).
 S. Rep. No. 530, 54th Congress, 1st Session 10 (1896).
 S. Rep. No. 61-961, 13 (1911) (speculating that states would be freer to take up the important business of state governance if unburdened with the task of selecting United States Senators).
 See id. at 14 (positing that direct elections are easier to keep free from corruption that the process of having legislatures select United States Senators).
 Id. at 14–15 (arguing that support for popular election was “almost unanimous”).
 See National Conference of State Legislatures, Mandate Monitor: Catalog of Cost Shifts to States (June, 2009), available at http://www.ncsl.org/documents/standcomm/scbudg/CatalogJune2009.pdf (citing e.g., Consolidated Appropriations Act, 2008, P.L. 110-161 (“continu[ing] to under fund federal commitments to NCLB [No Child Left Behind] and IDEA [Individuals with Disabilities Education Act] [;] reduc[ing] funds for state and local law enforcement assistance and the Clean Water State Revolving Fund[; and] reduc[ing] state shares of mineral leasing revenues by 2 percent”).
 See, e.g., Low-Level Radioactive Waste Policy Act, P.L. 96-573; P.L. 86-373 (requiring states to provide for the safe disposal of radioactive wastes generated within their borders). The United States Supreme Court ultimately held that the Act violated the Tenth Amendment. New York v. United States, 505 U.S. 144 (1992).
 See, e.g., Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq. (2012). The United States Supreme Court upheld this statute, holding that it did not violate the 10th Amendment because it did not regulate “the States as States,” Hodel v. Va. Surface Mining & Reclamation Ass’n, 452 U.S. 264, 287–88 (1982), even though the statute could be “characterized as a ‘land use regulation’ traditionally subject to state police power regulation.” Annotation 2—Tenth Amendment: Effect of Provision on Federal Powers, FindLaw (2014), http://constitution.findlaw.com/amendment10/annotation02.html#t41.
 U.S. Const. art. V.
 Id. “Any amendment to the Constitution passed in conformity with Article V is as valid as though it had been originally incorporated in it[.]” United States v. Dennis, 183 F.2d 201 (2d Cir. 1950), aff’d,Dennis v. United States, 341 U.S. 494 (1951), reh. den.
 See, e.g., Wise v. Chandler, 108 S.W.2d 1024, 1027 (Ky. 1937) (ratification or rejection of amendment is final, just as acceptance or rejection of offer is final under contract law).
 Coleman v. Miller, 307 U.S. 433 (1939) (observing that Article V contains no language regarding withdrawal or rescission of ratification once it has been provided by a state); Peter Michael Jung, Validity of A State’s Rescission of Its Ratification of A Federal Constitutional Amendment, 2 Harv. J.L. & Pub. Pol’y 233, 276 (1979).
 Rhode Island v. Palmer, 253 U.S. 350, 386 (1920). In Palmer, the Supreme Court was addressing seven challenges to the ratification process for the Eighteenth Amendment (“Prohibition of Intoxicating Liquors”). It is instructive that the Supreme Court found that the Article V process had been followed and that the 18th Amendment was now a part of the United States Constitution. It could not be further amended (or repealed) except by resort to Article V. This is what later occurred. In order to effect the repeal of the 18th Amendment, the Article V procedures were utilized to ratify what became the Twenty-First Amendment (“Repeal of the Eighteenth Amendment”). “Upon the ratification of the Twenty-First Amendment [December 5, 1933], the Eighteenth Amendment at once became inoperative. Neither the Congress nor the courts could give it continued vitality.” United States v. Chambers, 291 U.S. 217, 222 (1934). It is evident based on the history of these two Amendments that the Seventeenth Amendment is a part of the United States Constitution and, as such, can only be altered or repealed through Article V. A state legislature’s attempt to rescind its vote made over 100 years ago and made well after ratification would be a nullity.
 U.S. Const. Art. V.
 Gralike v. Cook, 191 F.3d 911 (8th Cir. 1999); Miller v. Moore, 169 F.3d 1119, 1124 (8th Cir. 1999); Barker v. Hazeltine, 3 F. Supp. 2d 1088, 1095 (D.S.D. 1998); League of Women Voters v. Gwadosky, 966 F. Supp. 52, 59 (D. Me. 1997); Bramberg v. Jones, 978 P.2d 1240, 1250–51 (Cal. 1999); Morrissey v. State, 951 P.2d 911, 916 (Colo. 1998); Donovan v. Priest, 931 S.W.2d 119, 128 (Ark. 1996); In re Initiative Petition No. 364, 930 P.2d 186, 192 (Okla. 1996); see also Kris W. Kobach, May “We the People” Speak?: The Forgotten Role of Constituent Instructions in Amending the Constitution, 33 U.C. Davis L. Rev. 1, 12–16 (1999) (discussing these cases).
 See sources cited in supra note 27.
 Kobach, supra note 27 at 55 (citing 5 Elliot, supra note 3, at 96).
 Id. at 56–57 (citing 3 The Records of the Federal Convention of 1787 13–14 (Max Farrand ed., 1966)).
 Id. at 65–66 (citing Statement of Mr. Van Buren (1826), in Elliot, supra note 3, at 489). Rhode Island also issued explicit instructions as a condition of ratification, but by the time it ratified the constitution, nine states had already ratified, making the constitution binding on all states. Id. Virginia and North Carolina also issued general statements to create a bill of rights, but did not issue explicit instructions. Id. (citing Ratification Message of North Carolina (Aug. 1, 1788), in Elliot, supra note 3, at 248–49; Ratification Message of Virginia (June 26, 1788), in Elliot, supra note 3, at 327)).
 Ind. Code § 3-10-1-4(a)(1).
 U.S. Const. art I, § 4, cl. 1 (“The Times, Places and Manner of holding Elections for Senators . . . shall be prescribed in each State by the Legislature thereof.”); Trinsey v. Comm’r of Pa., 941 F.2d 224, 231 (3d Cir. 1991) (explaining that the Seventeenth Amendment’s legislative history indicates that “the precise mode of senatorial nomination and election was to be a purely local question and that the establishment of a primary system was to be left to the states”). United States Supreme Court precedent also indicates that Senate primaries are optional, not mandatory. See id. at 232–33 (explaining that according to the Court “if primaries are part of the selection process, they cannot be conducted in a manner inconsistent with the popular election mandate of the constitution”) (citing United States v. Classic, 313 U.S. 299, 319 (1941)) (emphasis added).
 Ind. Code §§ 3-10-1-2; 3-10-1-4(a)(1).
 Utah S.B. 54, enrolled during the most recent legislative session and effective on January 1, 2015, amends this process, while still allowing conventions to select nominees.
 See Ind. Code §§ 3-10-1-2; 3-10-1-4(a)(1).
 See sources cited in supra notes 17–19.
 Bybee, supra note 8, at 541 (“[D]irect election turned the corporations attention from the legislature to the candidates themselves, lowering the costs of securing influence.”). “Direct election enabled lobbyists to focus directly on the senators rather than on the entire state legislature.” Id.
 Id. at 541 (explaining that the Seventeenth Amendment has made Senators “amenable to the influence of powerful lobbies”); Vik D. Amar, Note, The Senate and the Constitution, 97 Yale L.J. 1111, 1129 (1988) (“By requiring Senatorial candidates to raise large amounts of money to campaign for many votes, the Seventeenth Amendment may facilitate private interest group access to the federal government.”).
 According to the Federal Election Commission, outside groups spent $5.23 million during the Republican primary campaign in the 2012 Senate election. In contrast, during the hotly contested 2010 Utah Republican Senate nominating process, outside groups only spent $350,000; $164,990 of which was spent between the May 8 Republican convention and the June 22 run-off primary.
 For a complete breakdown of voter turnout statistics during these election cycles, see Voter Registration and Turnout Statistics, Ind. Sec’y of State, http://www.in.gov/sos/elections/2983.htm (last visited June 11, 2014).
 See Direct Election of Senators, supra note 11 (noting that one of Indiana’s Senate seats remained vacant for two years because of a conflict between Republicans and Democrats).
 Jeffrey D. Mohler, The Constitutional Requirements for Special Elections, 97 Dick. L. Rev. 183, 189–90 n.47 (1992) (explaining the Election Act of 1866 and noting the belief at the time that the Act was the source of deadlocks).