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Transcript of “Episode 06: Senate and states”
Lillian Cunningham: For the first 100-plus years of American history, senators weren’t elected by the people–they were chosen by the state legislatures. This was supposed to buffer the Senate from the masses; and bring an extra level of prestige and dignity to the office.
But when the framers of the Constitution came up with that system, they failed to account for some of the pitfalls–including what would happen if two political parties, within a single state, butted heads against each other and couldn’t agree in the legislature which senators to send to Washington.
By the turn of the 20th century, with a two-party system in full force, that initial oversight was spinning out of control.
Betty Koed: In Missouri in 1905, the election process became so contentious that it ended in this major fist fight in the state legislature. And George Haynes, one of the great historians of the Senate, described it this way: The Republicans had tried to turn back the clock literally in the chamber so that they would have more time to promote their candidate. And this so irritated the Democrats that the Democrats picked up the ladder they had been using to reach the clock and threw it out the window.
Cunningham: Then, a massive brawl broke out.
Koed: A fist fight followed. Desks were torn from the floor and a fusilade of books began. The glass of the clock front was broken.
Cunningham: The pendulum itself was still swinging. One of the members picked up ink bottles and hurled them one after another after another at the pendulum.
Koed: As a motion to adjourn arose in wild disorder, the presiding officers of both houses mounted on top of the speaker’s desk and, by shouting and waving their arms, tried to quiet the mob down.
Cunningham: One of the ink bottles hit the pendulum at just the right angle and, smack, time suddenly stopped ticking.
A perfect union? Not so much.
I’m Lillian Cunningham with The Washington Post, and this is Constitutional.
[Introductory theme music]
Cunningham: When the framers drafted the Constitution, they had a dilemma before them — how to successfully unite the states and strengthen their collective identity, without stripping away their individual power.
In practical terms, that led to the question: What should representation for the different states look like in order to create a “more perfect union”?
Well in response, the framers came up with a structure for Congress, and how we would divvy up representatives between the House and the Senate. And that framework is basically still intact today. With one very notable exception: how we elect senators.
Koed: The direct election of senators is certainly the biggest change that has ever been made to the framers’ vision of the Senate and its members and how they’re elected.
Cunningham: This is Betty Koed, the official U.S. Senate historian. And that change took the form of the 17th amendment, ratified in 1913. It updated the Constitution to finally give voters the power to directly elect senators themselves, instead of having state legislatures pick them.
But not everyone has agreed that shift was for the better. Former Supreme Court justice Antonin Scalia, for example, once said: “The 17th Amendment has changed things enormously.” And because of its passage “you can trace the decline of so-called states’ rights throughout the rest of the 20th century.”
Now, Scalia isn’t alone. In the past decade, as the Tea Party movement gained steam, several conservative voices (like politicians Mike Lee and Rick Perry) called for repeal of the 17th Amendment. Like Scalia, they said it upset the balance of power between the states and the federal government — constraining states’ rights.
So let’s explore the story of why direct election of senators came about, and whether it did mark a step toward or away from “a more perfect union.”
In the early days of America, up until the writing of the Constitution, the states had been working off a document called the Articles of Confederation and they had come together to form the Continental Congress. But it wasn’t going so well.
Jeffrey Rosen: Very quickly the Articles of Confederation began to fail as an instrument of government.
Cunningham: This is National Constitution Center president Jeffrey Rosen, who was on our first episode.
Rosen: States weren’t paying their taxes to the national government. States were violating the rights of other citizens. Congressional resolutions were ignored. And this abuse of power by state mobs or state legislatures led to tremendous anxiety on behalf of leaders such as James Madison and Alexander Hamilton that state legislatures were sources of tyranny. So it’s decided that we need a stronger federal government.
Cunningham: But the question then becomes, what should this stronger government look like? And what authority should the states have under it?
Koed: In 1787, when the delegates to the Constitutional Convention met in Philadelphia, there was a lot of debate about representation. How would representation be based? That was a great bone of contention.
Cunningham: And it was contentious for a few reasons. For one thing, the big states and the small states had very different perspectives on whether the states should all have equal representation, or whether bigger states should have more power and smaller states should have less power.
Rosen: There was a lot of disagreement about exactly how strong that national government should be, and how to empower the national government while still protecting the states.
The most ardent nationalist in the Constitutional Convention was Alexander Hamilton. He made a radical proposal to abolish all states. He wanted a truly national government without the risk of independent sovereign states. He warned against the ambitions of state demagogues who hated central control.
Cunningham: So Hamilton is far to one end of the spectrum, but there are others like James Madison and the peg-legged, preamble writer Gouverneur Morris who — while they don’t think we should get rid of states — do think a strong federal government is important. They propose a plan where the number of representatives in Congress will be entirely based on states’ population numbers — meaning, the bigger states will have more members. And they do this because they don’t think it’s very important that all states have equal power and an equal voice.
These turn out to be the hottest debates at the convention. Some delegates, like William Patterson of New Jersey, argue that all states should have exactly the same number of representatives.
Ultimately, of course, they end up with a compromise. They decide on a House of Representatives — where each state has a different number of members based on population — and then a Senate, where each state has the exact same number of members: two.
Rosen: So William Paterson lost the battle of the states as independent sovereign entities, but he did succeed in persuading the delegates to recognize in the Senate — where every state has two representatives regardless of its size — a principle of independent state sovereignty that continues today.
Cunningham: Interestingly, even though this debate about representation takes a really long to resolve, the question of how to elect these representatives is solved really quickly — even though there are a number of ideas initially proposed.
Koed: They considered several options. For one they could have the House of Representatives elect senators, but that didn’t seem particularly practical because the Senate was designed in part to be a check on the House. And how could you check the house if they’re responsible for your election? Another one was to just give senators lifetime appointments. Alexander Hamilton favored that one. Another one was to do straight popular vote election, the way we do today.
Cunningham: This idea — that voters in the states could directly elect their two senators — was put forward by delegate James Wilson.
Rosen: James Wilson must be the most underappreciated of the constitutional framers. It was Wilson who came up with the idea that we the people of the United States as a whole were sovereign, rather than we the people of the individual states.
Cunningham: But everyone else at the convention shot down Wilson’s idea that “we the people” should have the power to elect our own senators.
Koed: That was deemed at the time to be fairly impractical and would not be consistent with the Senate that they were envisioning in 1787.
Cunningham: James Madison and basically all the other delegates end up thinking that what makes the most sense is for senators to just be chosen by the state legislatures.
Rosen: Because they thought that state legislatures would be wise intermediaries, who would check popular passions and ensure that only the best people were chosen to serve in the Senate.
Cunningham: But Wilson was still skeptical. On June 20th, 1787, he warned his fellow delegates at the convention that state legislatures were likely to end up jealous and in friction with the federal government — and that would prevent these legislatures from purely representing the best interests of their citizens.
Then on June 25th, Wilson made one last case for popular election, saying: Both the state governments and the general government were “derived from the people — both meant for the people — both therefore ought to be regulated on the same principles.” And what he meant was: Since citizens get to elect all their representatives at the state level, why shouldn’t they be allowed to elect all their representatives at the federal level as well?
He said: This new government ultimately shouldn’t really be about uniting and serving the states, it should be about uniting and serving the people of those states. So, “the individuals therefore not the states ought to be represented in it.”
But Wilson is still outnumbered. And the decision to have state legislatures elect senators gets written into the Constitution.
Koed: Now this had great tradition behind it, because this was actually the way the Confederation Congress and the Continental Congress before it had been elected. So that was the system they were used to. Another reason they chose this system of election for senators was because they needed states to ratify the Constitution. And so they had to be sure that they were giving something to the states in return for building this new federal government, which many states saw as taking away their powers and their privileges.
Cunningham: The framers also envisioned senators playing a different role in supporting and improving American democracy than members of the House would.
Koed: They really wanted the Senate to be a very different body from the house. Whereas the House members were there to represent particular districts or sections of states and they were facing re-election every two years, so they had to be very cognizant of public opinion and how they could work public opinion to shape their own careers. On the Senate side, they didn’t want it directly answerable to the people. They didn’t want it to be influenced by the tides of public opinion. They wanted to give it some distance and some protection from the whims of the voters.
Cunningham: That’s why, in addition to having the senators elected by state legislatures, they decided senators should serve longer terms than those in the House (six years, rather than two); senators should also be older (at least 30 years old, instead of 25); and they had to have been citizens for a longer time.
Koed: And by going to the state legislatures for these choices, they really thought they would get individuals who had long service in government. So they were people who would know their states well and they would be people who would have strong connections to the state governments.
And that was true of many of the early senators. You know we had people like Oliver Ellsworth of Connecticut, who was one of the great legal brains of the early Senate. He was the author of the Judiciary Act that created the federal judiciary.
Cunningham: The framers of the Constitution had also given the Senate specific powers that the House didn’t have.
Koed: Most importantly the powers of advice and consent. So they were there to advise the president. They were there to consent to or reject treaties or nominations, and they were also there to be the sole power to try impeachment. So all of these things gave the Senate this kind of advisory role that had not been given to the House.
Cunningham: So this all sounds great. It goes into effect. And for several decades, the process of states choosing their senators goes quite smoothly. No one gives much more thought to James Wilson’s lone pushback at the convention that senators should be popularly elected. Until: the middle of the 1800s.
Koed: The issue really starts to heat up. And it heats up largely because we’re coming into a time really in our national history when we’re developing two very strong political parties. The Republican Party is born in the mid 1850s; the Democratic Party has grown much stronger in the last 20 years. And so partisan issues are becoming much more important in American politics. By the 1850s, you start to see deadlocks in state legislatures.
Cunningham: The kind of deadlocks that led to fights like the one in Missouri, where the state legislature erupted into an all-out brawl. And these partisan battles in legislatures across the country got people thinking that maybe our system for electing senators wasn’t quite working.
As a first attempt at fixing the system, Congress passed a new law in 1866 that tried to standardize the process for Senate elections. It set a consistent date for holding the elections, and it required that state legislatures take one vote every single day for as long as it took to get a majority winner.
Unfortunately, this didn’t really resolve the deadlocks. It just consumed a ton of the state legislature’s time and meant that Senate seats could go months, sometimes years, without being filled.
Koed: By the time you get to the 1880s and 1890s, the inability of state legislatures to settle on a candidate became increasingly problematic. There was a case in North Carolina when they had 85 candidates that came forward for one seat and none of those candidates were ever able to get a majority vote. And so even though the state legislature voted over and over and over 200 in some ballots they weren’t able to settle on one candidate.
Cunningham: And these deadlocks and Senate vacancies weren’t the only problem.
Koed: When we go into the gilded age, you get larger and larger and more difficult cases coming before the Senate of corruption. Over the course of the 1870s to the turn of the century, we had nine high-profile bribery cases in the Senate. And some of them have to do with the electoral process itself, for instance bribery of state legislators became a problem by the 1880s and 1890s — when people were offering bribes of various forms to legislators to actually elect a person as a senator.
At the same time the Senate itself is changing, America is changing. This is a period of the rise of big business. This is a time of industrialists and financiers. This is a time when elections are getting caught up in money issues and campaign issues and campaign-finance issues. And the attention that gets throughout the 1890s and the early 20th century, really helps to stoke those calls for reform.
It’s just a growing awareness of the Senate becoming what at that time was called the millionaires club. It was people who were elected from big business, people who were elected that were tycoons of industry, people who had really strong ties to the monied interest in America.
Cunningham: People like industrialist Simon Guggenheim. Or railroad magnate William Clark, who reportedly bribed state legislators for his Senate seat and when questioned about it, famously responded, “I never bought a man who wasn’t for sale.”
Koed: And so you got people elected to the Senate who were very wealthy, who were very powerful. Some of them were answerable to the demands of the people, some of them were not. But it really shaped an overall reputation of the Senate to be just this body of millionaires who really have no connection to the common man.
And there was a lot of truth to that. It’s not the complete Senate, but there was a lot of truth to that issue.
Cunningham: Many of these wealthy senators were coming out of the eastern and the mid-Atlantic states. But a different sort of tide was rising in the West.
Koed: In the West, they were more progressive. They were more populist and they looked for people that would come in with new ideas and new reform impulses. And they’re frustrated with the inability to get any sort of reform passed in Washington. And so they start to look for ways they can make that reform happen at the state level.
By the 1890s that western states are moving towards creating their own system of direct popular election of senators. One of the states that led the way was Oregon, and they came up with this ingenious plan.
Cunningham: Oregon basically did two things — it gave citizens the opportunity to tell their state legislators who they thought should be their senators. And, the state also started pressuring candidates running for the state legislature to take a pledge that they would honor those requests, even though they weren’t officially bound to do so.
Koed: Once they did that and they were successful at it, other western states began to do it. And in fact, by 1910, there were close to a dozen states that had some sort of popular election system in place.
Cunningham: And one of the results is that the Senate starts filling with members who are more progressive and who feel they more directly represent the voice of “we the people” — since the citizens of their states actually had a say in electing them.
Koed: You get people like William Borah of Idaho for instance, who will play a really important role in the national debate over direct election. You get people like Francis Warren, who’s the first senator from Wyoming and he’s also a very strong supporter of direct election. Joseph Bristow of Kansas will be an important player in this story. Albert Beveridge of Indiana is another one. So it becomes sort of the midwestern/western states versus the eastern powerhouse.
Cunningham: Around this same time, another force emerges that questions how well the classic Senate election model has been serving the will of the people, and that force is the press. In particular, it was publisher William Randolph Hearst.
Koed: — who was sort of the king of tabloid journalism of the time, but he was also a member of the House in the early 20th century. And he was a strong proponent for direct popular election of senators.
So Hearst hired a man named David Graham Phillips to write a series of articles for Cosmopolitan magazine, which at the time was kind of a muckraking magazine. And the series was to be about the Senate and the corruption in the Senate and why direct election would be necessary.
He wrote nine separate articles that ran in Cosmopolitan from March to November of 1906. And the articles were kind of a pivotal moment in a way, because first of all they were highly sensationalized and a lot of the charges were false.
Cunningham: The series of stories was called “Treason of the Senate” and it opened with this line: “Treason is a strong word, but not too strong to characterize the situation in which the Senate is the eager, resourceful, and indefatigable agent of interests as hostile to the American people as any invading army could be.”
Before the series launched, it’s true that two U.S. senators had been convicted of taking bribes from business clients in exchange for special treatment from the government. But this series went on to investigate roughly 20 other senators, showing how the combination of state legislature elections and big-business interests was producing senators who didn’t serve the people.
Koed: His series is pretty widely denounced by responsible journalists and editorialists of the day. And obviously it’s denounced by the Senate. But it gains wide popular support. And it really helps to change the tide of public opinion in favor of reform of the election process. He portrayed senators as bribers, moneylenders. You know, all the worst kind of stereotypical views of political corruption.
In some cases he took incidents and really sort of exaggerated them; in other cases he just made stuff up. But it’s an image of the Senate that really stuck, and it’s an image of the Senate that reflected the general public perception of the Senate as this out of touch collection of wealthy men who had only their own interests at heart.
Cunningham: And so this series becomes a major turning point. Soon after, efforts gain steam in Congress to reform the election of senators — and the efforts, not surprisingly, start in the House of Representatives rather than in the Senate itself.
Koed: The House introduces 18 or 19 different resolutions for a constitutional amendment to establish direct election of senators. Most of those amendments actually passed the House. They get sent to the Senate and they die in the Senate, because they’re referred to the Committee on Privileges and Elections. The Committee on Privileges and Elections was controlled by old-guard senators who had no interest in direct election of senators. And pretty much every proposal for reform, once it got to the Senate, died in that committee and never made it to the Senate floor.
Cunningham: There are a few different reasons these efforts are meeting resistance.
Koed: Opposition in the Senate for a good part comes from senators who are just on principle opposed to changing the Constitution. That’s one group. Another are really tied to the old system because that was their system of election, and they feared that if they changed that system they would lose their seats.
Cunningham: However, in 1909, there’s finally some movement.
Koed: And that’s because Kansas senator Joseph Bristow manages to maneuver a new resolution for direct election out of the Committee on Privileges and Elections and get it sent to the Committee on the Judiciary. That’s a key moment in the story.
The Judiciary Committee then creates a subcommittee to consider the resolution. On that subcommittee is Idaho senator William Borah, one of the great proponents for direct election. And it really owes it to the the hard work of William Borah that that resolution manages to get out of committee and make it for the first time to the Senate floor for debate.
But it makes it to the Senate floor in a slightly altered form. And this is the next major stage of the story.
By 1909 we’re living in a United States where almost every issue is touched by the issue of race, and that becomes an important component in the direct election system.
Cunningham: Because the only way that Idaho senator William Borah can convince his peers to let the proposed Constitutional amendment for direct election leave the Judiciary subcommittee and actually go to the Senate floor for a vote is if he agrees to tack onto it something the southern Democrats wanted:
Koed: A race rider.
Cunningham: The “race rider” basically stipulates that if the Constitution is amended and we switch over to allowing voters to directly elect their senators, then — sure, that’s fine but — the states themselves have the ability to control the terms of the elections. The federal government won’t have any say.
Now, the reason this was called a “race rider” is that what these southern states were essentially saying between the lines was: We don’t want African Americans in our state to participate in electing senators, so if we’re going to have popularly elected senators then we better be able to create whatever voting terms we see fit. In other words, we better be able to exclude anyone we want to.
Koed: When you’re talking about the 17th Amendment, there are two sections of the Constitution that you have to think about. There’s Article 1 Section 3, which is the part that defines how Senate elections happen — and that’s what they’re trying to change from indirect to direct election.
But there’s also Article 1 Section 4, which says that the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof. And it says the Congress may at any time by law make or alter such regulations. And it’s that phrase that becomes the target of the debate in the Senate in 1909, 1910 and 1911.
Cunningham: Because it’s that phrase — that the federal government can regulate the terms of elections — that southern democrats want out of there if they’re going to start allowing elections for senators. That stipulation itself is called the race rider.
Koed: The debate is less about how senators will be elected and a lot more about: Will federal authorities maintain control to regulate elections in the states?
Cunningham: So this proposed constitutional amendment, with the race rider stuck onto it, goes to the full Senate for a vote.
Koed: When it gets to the Senate floor, another senator from the West — Utah senator George Sutherland — comes into the story.
Cunningham: Sutherland proposes yet another tweak, which basically takes away the power of the race rider and says the federal government can still exert authority over state elections.
Koed: The Sutherland Amendment becomes the subject of heated debate in the Senate for months, and the whole debate centers around the issue of congressional authority over state elections.
It was a long debate. It was a contentious debate. Each side accused the other of race baiting. Northern Republicans, who opposed direct election, some of them sided with the Southern Democrats because they hoped that that would kill the resolution. All sorts of political maneuvering happened.
Finally in 1910, after months of debate, the Sutherland amendment passed the Senate; but the Constitutional amendment that came with it failed to get the two-thirds vote it needed for passage. And the whole system essentially went back to square one. They had to more or less start over.
Cunningham: So they do. In 1911, there’s a new Congress.
Koed: And this made a difference, because as a result of the 1910 election there were a lot of new members in the House and the Senate. And a lot of those new members were products of direct election systems and a lot of them were supporters of a direct election system. So the balance of power had shifted a little bit in favor of the reformers.
Cunningham: The House of Representatives quickly introduced another proposal for direct election of senators. This one has the race rider back on it, again. It gets all the way to the Senate floor…
Koed: Again, another contentious debate. Joseph Bristow of Kansas again brings forth another amendment to this resolution. It becomes known as the Bristow Amendment. And in his amendment, the race rider stripped away. So we’re back again to the original form.
Cunningham: The debate keeps going, week after week, but the influx of more reform-minded senators into the new Congress was just enough to even the scale.
Koed: When it came to a full vote in the Senate, it tied 44 to 44. Vice President James Sherman stepped in, broke the tied vote in favor of passage of the so-called Bristow Amendment. The two versions — so we now have a house version of the resolution, with the race rider intact, and we have a Senate version (the Bristow amendment) with the race rider taken out — go to conference. Weeks go by again as they try to settle the difference between these two.
In the end the House, wanting to get direct election through, essentially gives in to the Senate version. And so the Bristow Amendment is the one that actually becomes the constitutional amendment for direct election.
Cunningham: In 1912, the Bristow amendment — also known as the 17th Amendment — was officially passed by Congress.
As Betty Koed mentioned at the very beginning, this was the most significant change we had ever made to how our government would operate. We had passed amendments before that clarified the protections that citizens and states have, amendments that had expanded voting to new groups, even an amendment adjusting the presidential election process.
But no other amendment had so fundamentally overturned a part of the framers’ original vision for our government’s structure.
Rosen: The framers of the original Constitution were deeply afraid of direct democracy.
Cunningham: Jeff Rosen again.
Rosen: But what they agreed on was the need to disperse power to protect liberty. And they wanted to disperse power both horizontally, between the three branches of the federal government, and vertically, between the states and the federal government — in order to ensure that we the people retained ultimate power but no branch of government, whether at the federal or state level, could easily speak for us unless we empowered it to do so. But our challenge is to translate their principles into a very different era.
Cunningham: And at the dawn of the 20th century, that’s what Congress did. It sent the 17th amendment off to the states for ratification. And the funny thing is, despite all that turmoil over it on Capitol Hill, it actually goes through state ratification very easily. By April 8th, 1913, the necessary three-quarters of states have ratified it and it officially changes the Constitution.
Koed: One of the things you have to remember is that by the time we get to 1910, 1911, nearly 40 of the states had already come out publicly in favor of direct election. In fact, state governments were asking for this reform. State governments were tired of dealing with Senate elections. They were tired of dealing with the corruption and the bribery that came along with it. And they saw it as just a nuisance to them by then.
Cunningham: They were also tired of the amount of time their state legislatures were spending on it, when they could be using those sessions to pass state legislation and focus on a sea of local issues.
Koed: Today many people will look back at the debate and they think it was taking power away from the states. But in reality, the states wanted that taken away from them. Oh sure, there were people — particularly in the eastern seaboard and the Southern Democrats — they were not in favor of the amendment. But even in some of those cases, the states had spoken in favor of reform. So they didn’t have much of a choice at that point, they had to step on board.
Cunningham: So what changed after ratification of the 17th amendment? Did it move us to a system where our leaders in the Senate better serve the people? Where there’s less corruption? Did it better perfect our union?
Koed: I think the Senate today, if you compared it to that of the early 20th century, is much more egalitarian. The Senate tends still to be wealthier than the House members as a rule, and we still have some members of the Senate that are very wealthy members. But it’s not the millionaires club of the 1890s. We also have senators that are teachers and farmers and doctors.
And you could also argue it would have been a lot harder to elect women to the Senate under the old system than you do under the new system. We don’t get our first female senator until 1922; she’s appointed. The first elected woman senator comes in 1932. If they had had to contend with the indirect election system, where they had to go and get the favor of the state legislature to gain office, it would have taken even longer to get women into office because they didn’t have those kinds of connections in state government. So I think the fact that we have 21 women senators today is also due in part to the fact that we now have a direct election system.
Cunningham: And what about a better functioning Senate, one that can work more effectively to serve its citizens?
Koed: It’s interesting because this constitutional amendment, like many others, has had consequences intended and unintended. It did get rid of the deadlocks. And it got rid of course of the bribery of state legislators. It also helped to cement a stronger bond between senators and their constituents, because now they had to go directly to the voter rather than just to the state legislature. And I think that in the long run has had a positive impact in many ways.
It also had some unintended consequences. Senators had to go out and start campaigning, for instance. That led to questions of campaign finance, questions of campaign finance reform. And it’s been a long story to where we are today, where we have millions of dollars spent on Senate elections. As early as the 1920s and even the 19-teens, the Senate begins to hold investigations looking into campaign finance issues to be sure that there is no corruption in that process. I don’t think they intended that when they passed the 17th Amendment, but has been one of the results of it.
Cunningham: And there’s always the possibility, put forward by people like former Supreme Court Justice Scalia, that something of the original intent was shaken or lost by the change.
Rosen: I had the remarkable experience of seeing one of Justice Antonin Scalia his last appearances before his death and it was at the Union League in Philadelphia. And I heard Justice Scalia say: The 17th amendment represents the death of federalism.
He said that no amendment has done more to undermine the balance between federal and state’s rights than the decision to have popular rather than the legislative election of senators. That is a dramatic statement from the great originalist.
Koed: There is a strong argument that people make that in adopting the 17th Amendment, you took away a part of the framers original design for the Senate. And the framers original design of the Senate really wanted it to be a body that was that was insulated from public opinion, and distanced from public opinion, and one that was able to serve in a true advisory role to both the executive and the House.
And so there are people who argue by making them directly responsive to popular opinion, you’ve taken away that buffer zone. And because they have to answer to the wishes of the people at the voting booth, that somehow they do not have the ability to stand back and have the distance and have the wisdom that they might have had under the original system — so there’s that part of the argument.
There are those, and Scalia might be in this category as an originalist, that just do not want the original Constitution to change. There are others who would see direct election as a way to undermine the role of the states in the federal government.
Cunningham: And that argument flows from the idea that state legislatures used to be able to just directly tell the senators what to do to best represent the state’s interests.
Koed: In the early years of the republic, there was a lot of truth to that. In fact, state legislatures often instructed senators on how to vote. But fairly early on, by the time you get to the 1820s and 30s, senators have moved beyond that and are not taking instructions well from state governments.
I would argue that, despite the fact that we have this one important change in the framers’ vision for the Senate, the Senate still maintains virtually all of the role that they had in mind. It still serves as a check on the president and the House. It still serves as an advisory body on nominations and treaties. It still serves the full state’s interest, because they have to deal with a statewide constituency — and they tend to have very close ties to the governor and the state legislators.
And so I think even though the method of election has changed, most of those ties and most of what empowered the states under the old system remains in place.
Cunningham: Only one of our constitutional framers, James Wilson, had anticipated that this change might be necessary. But all of those men who signed their names at the bottom of the Constitution in 1787 knew that the first words at the top of the parchment said: “We the people of the United States in order to form a more perfect union…”
That is, they knew they that America was a work in progress, an experiment in how to unite the different wills of the people.
Rosen: A more perfect union did not mean total consolidation. It meant popular sovereignty. It meant that we the people of the United States as a whole have the ultimate power to authorize our delegates and our servants to speak in our name.
Koed: We now have “we the people” that vote and elect U.S. senators directly. So it’s no longer a voting process that’s disconnected, or no longer one step removed via a state legislature. It’s directly empowering the people. So if part of the the process of “we the people to form a more perfect union” is to somehow empower the people to make the decisions that are important to our country, then direct election would be directly tied to that.
Cunningham: On June 25th, 1787, as James Wilson was advocating — in vain — for direct election of senators, he reminded his fellow delegates at the convention to imagine what a future America might look like. He said, “consider the amazing extent of our country — the immense population which is to fill it, the influence which the government we are to form will have, not only on the present generation of our people and their multiplied posterity, but on the whole Globe.” Wilson, for his part, said he was “lost in the magnitude.”
And his point, it seemed, was that we can never fully grasp the immensity of what’s to come — or even future practical realities like how the state legislatures will act toward the federal government, or whether the small states will become bigger states, or whether political corruption will go up or down with any given change. But, if the strength of union rests on our ability to best represent its multitude of voices, then that should be our greatest ongoing effort.
Cunningham: Many thanks to this week’s guests: Jeffrey Rosen, president of the National Constitution Center; and Betty Koed, the U.S. Senate historian.
Fief and drum music is by Other Turner and the Rising Star Fief and Drum Band. Special thanks to Sharde Thomas and the rest of the Turner family for its use.
Our theme music and additional compositions are by Ryan and Hays Holladay. The original artwork for our podcast is by Michelle Thompson. And, as always, a huge thank you to Ted Muldoon, my producer here at The Washington Post.
WASHINGTON — With the election of President Trump, the nation’s consumer watchdog agency faced a quandary: how to shield the Obama-era institution from a Republican administration determined to loosen the federal government’s grip on business.
In the weeks after the election, Richard Cordray, the Democrat who leads the agency, the Consumer Financial Protection Bureau, directed his staff to compile stories from ordinary Americans thanking it for resolving complaints.
The anecdotes, which he solicited in an email to share with the Trump transition team, could provide a counterpoint to critics who had cast the agency as a regulatory scourge on the economy. And implicit in his request to employees was the belief that some accolades would come from parts of the country that helped elect Mr. Trump — evidence that the popularity of consumer safeguards transcends party divisions.
“There must be hundreds of such stories,” Mr. Cordray wrote in the email in November, which was obtained in a public records request. He added, “I can think of no better vindication” of the agency’s consumer relief efforts.
While many federal agencies have begun to loosen the reins on the companies they regulate, the Consumer Financial Protection Bureau, born out of the Dodd-Frank financial law in 2010, has taken the opposite course. Congress granted it unusually broad authority — and autonomy from the White House and Congress — to both enforce existing federal rules and write new ones, including issuing fines against financial companies.
Under Mr. Trump it has openly embraced its mission, cracking down on debt collectors, pushing out a major new financial rule on arbitration and pursuing a flurry of enforcement actions against payday lenders and others.
The approach, outlined in emails and other documents obtained through the public records request by The New York Times, comes as the Trump administration has taken an uncharacteristically low-key public stance toward the agency, a prominent blue holdout in a federal regulatory regime newly awash in red.
The White House’s restraint was based in part on a pragmatic assessment, according to people familiar with the strategy. At one point, contemplating a high-profile run on the agency, the White House examined polling data from political bellwether states, two people briefed on the matter said. The agency, they concluded, was too popular to pick a public fight with.
Republicans in Congress, who have vehemently opposed the agency since its creation, have also been unable to muster enough support to derail its work. Efforts to strike down a rule ordering new consumer protections on prepaid debit cards never made it to a vote in either the House or the Senate.
“The public does not share the G.O.P.’s ire toward the agency or its mission,” said Dean Clancy, a Tea Party activist who worked in the White House under President George W. Bush and is now a policy analyst who tracks actions of the consumer bureau. “It is an agency about protecting the little guy, and that is tough to oppose.”
The stories of gratitude rounded up by the agency’s staff for Mr. Cordray illustrated its appeal. Among them was a homeowner in Tennessee who got a disputed lien removed from a property, someone in Kentucky who got assistance warding off a debt collector pursuing a medical bill that had been paid, and a person in Pennsylvania who said the agency helped resolve a contested credit card debt.
That doesn’t mean the Trump administration and other opponents have given up on neutralizing the bureau’s work.
Administration officials have isolated the bureau from parts of the government that, under President Barack Obama, helped fulfill its mission. In public statements and documents, officials at the Justice Department, the Treasury Department and the Office of the Comptroller of the Currency have all turned a cold shoulder toward Mr. Cordray and his staff.
Lobbyists for the financial industry are working behind the scenes on efforts to dismantle some of the bureau’s signature initiatives, according to people directly involved in the plans. They include lawsuits to be filed in reliably conservative courts when new regulations are issued.
For now, though, it is mostly a waiting game. Mr. Cordray’s term as director expires next July, when he could be replaced with a sympathetic Trump appointee. That moment could come earlier as there is speculation that Mr. Cordray might resign — perhaps soon — to enter the Democratic primary for governor in Ohio.
“The industry will be very happy to see him out of there,” said Alan S. Kaplinsky, a lawyer with Ballard Spahr in Philadelphia, who represents financial institutions in matters before the bureau. “The people running that agency are definitely Obama people.”
The Trump administration, eager for Mr. Cordray’s exit, has compiled a list of successor candidates in the event of his early departure, according to three people with knowledge of the preparation. Yet Mr. Trump can fire Mr. Cordray only for cause, and such a move would most likely backfire by rendering Mr. Cordray a political martyr among Democrats — perhaps bolstering his chances of winning, should he enter the governor’s race.
Since Mr. Trump’s election, Mr. Cordray, 58, has counseled his roughly 1,600 employees to tune out the political noise.
“I encourage you to remain focused on doing your good work on behalf of consumers,” he said, according to a script for a call with employees in late November. “Keep calm and carry on.”
The agency was proposed by Senator Elizabeth Warren, Democrat of Massachusetts, when she was a Harvard professor, to serve as an advocate for consumers in their dealings with financial institutions. Mr. Cordray, who was working at the bureau as its enforcement chief, was made its first director in 2012 in a recess appointment by President Obama, which heightened the partisan rancor over the regulatory crackdown on Wall Street.
Financial executives and lobbyists offer mixed reviews of his tenure.
They describe Mr. Cordray as intelligent, pleasant and accessible, willing to meet with industry constituents and hear out their lobbyists. But they also consider him a “definitely ideological” — in the words of Richard Hunt, the chief executive of the Consumer Bankers Association, a banking trade group — leader of an agency that is structured like “a dictatorship.”
“Richard Cordray has gone above and beyond to take C.E.O.s to task on things that he had no jurisdiction over,” Mr. Hunt said.
Mr. Kaplinsky, the financial services lawyer, said Mr. Cordray had stifled innovation in the industry by being too rigid. “It is one guy who calls all the shots,” he said.
Mr. Cordray said he listened to and appreciated his opponents. “Sometimes you look at the critics and say, ‘Nobody else was telling me that, but you were,’” he said in a recent interview.
Since Mr. Trump has taken office, Mr. Cordray has faced increasingly personal attacks. A longtime critic, Representative Jeb Hensarling of Texas, the Republican chairman of the House Financial Services Committee, has led the charge.
Mr. Hensarling championed the Financial Choice Act, a bill approved by the House in June that would reverse many Dodd-Frank regulations, including curbing the consumer agency’s oversight powers and allowing the president to fire its director more easily. A vote has not been scheduled in the Senate.
He also launched an investigation over a contentious new rule that allows consumers to band together in class-action lawsuits against financial firms. Mr. Hensarling later suggested that there were legal grounds to pursue contempt-of-Congress proceedings against Mr. Cordray, accusing him of inadequately responding to subpoenas in that investigation.
Separately, Mr. Hensarling has questioned Mr. Cordray’s political activities in Ohio and called for an investigation into whether he violated a federal law that prohibits federal employees from most political campaign activities.
Mr. Hensarling’s office declined an interview request. He told The Dallas Morning News this year that the bureau “is the single most unaccountable and powerful agency in the history of our republic.” He said Democrats had “set up a tyranny” when conceiving the agency as part of the Dodd-Frank legislation.
While industry lobbyists are more circumspect, they, too, are eager to remake the bureau. Some in the banking industry would like it to disappear, but others would prefer simply to reduce its autonomy.
“I hope we’ll rebalance the pendulum in a way that ensures honest market participants have clear rules,” said David Hirschmann, who heads the U.S. Chamber of Commerce’s Center for Capital Markets Competitiveness, “and those who break laws are appropriately handled through strong, vigorous enforcement.”
Mr. Cordray says the criticism is a badge of honor. He believes the bureau’s work will have lasting ramifications.
The bureau has curtailed abusive debt collection practices, reformed mortgage lending, publicized and investigated hundreds of thousands of complaints from aggrieved customers of financial institutions, and extracted nearly $12 billion for 29 million consumers in refunds and canceled debts.
This week, it began mailing out refund checks totaling $115 million to 60,000 people who had paid illegal fees to Morgan Drexen, a debt settlement company that collapsed two years ago.
The agency has also rolled out the arbitration rule, and it has been putting the finishing touches on a rule that could reshape the multibillion-dollar payday lending industry.
“This has been an agency that has gotten people’s attention in a lot of ways,” Mr. Cordray said. “They have a lot of things they say about us.”
War on Multiple Fronts
Mr. Trump has not spoken publicly about the bureau, but in mid-June, he received his first major report from the Treasury Department about the financial system and its regulators.
The assessment included recommendations to chisel away at the Dodd-Frank law, which the Treasury Department, under Mr. Obama, helped draft.
The consumer bureau figured prominently in the report, garnering 340 references and a chapter devoted to the opportunity that Republicans have to change it.
“The C.F.P.B. was created to pursue an important mission, but its unaccountable structure and unduly broad regulatory powers have led to regulatory abuses and excesses,” the report said.
Mr. Trump, who ordered the report, has made his disdain for the Dodd-Frank law clear, issuing an executive order and presidential memos calling for a rollback of Obama-era regulations — and empowering Treasury Secretary Steven Mnuchin to take the lead in doing so.
“Treasury took the reins,” said Mr. Hirschmann, of the U.S. Chamber of Commerce, who participated in meetings with Treasury staff members as they researched the report. “I’ve been impressed.”
Similarly, the Justice Department under Mr. Trump has taken some shots at the consumer bureau. In one court case, it sided with a mortgage lender questioning the agency’s constitutionality.
The bureau had fined the lender, PHH Corporation, $109 million and accused it of illegal kickbacks. PHH denied wrongdoing, appealed the ruling, claimed the bureau was unconstitutional and asked a judge to shut it down.
At a hearing in May before the federal appeals court for the District of Columbia, a Justice Department lawyer argued alongside industry lawyers and said the bureau’s structure was unconstitutional and should be changed. The court is not expected to rule on the case for several months.
Other alliances within the federal government have deteriorated.
The consumer agency had been collaborating with the Department of Education on overhauling the $1.3 trillion student loan market to ensure that private companies collecting loan payments abided by consumer protections.
But soon after Betsy DeVos was appointed education secretary this year, the department scrapped much of that work. In particular, the department eliminated a requirement that federal student loan servicers adopt a simplified repayment disclosure form that the consumer bureau spent years developing.
Lobbyists are also feeling empowered by the change in administrations. Working on behalf of payday lenders, they have flooded the consumer agency with comments, more than a million in all, urging it to halt a proposed crackdown on the industry.
At some payday loan counters, customers were handed comment forms alongside their checks and urged to tell the bureau just how important payday lending was to their livelihood. Hundreds of thousands of those comments, often with nearly identical wording, poured into government databases.
So far, that push has not deterred the bureau. Within the agency, there is a mounting sense of urgency to get the final version of the payday rules out, according to two people familiar with the process. The new rules would represent the first time that the lucrative market — the payday industry collects $7 billion annually in fees — was directly regulated by the federal government.
The bureau’s rollout last month of its rule allowing class-action lawsuits in some arbitration cases has also rattled Wall Street, and is widely seen as a provocative stance against the prevailing political momentum in Washington.
Opponents of the rule have received an assist from the Trump administration. Keith Noreika, the acting currency comptroller, who serves as the chief bank regulator, asked Mr. Cordray to delay publication of the rule, saying his staff needed more time to review whether it posed a threat to the safety and soundness of the banks.
Mr. Cordray, in a response to Mr. Noreika, said the idea that class actions were a threat to the banking system was “plainly frivolous.” (He also said he had already sent the rule to the Federal Register for publication a week before he received Mr. Noreika’s letter.)
A challenge to the rule passed the House, but has stalled in the Senate. Senator Lindsey Graham, Republican of South Carolina, has said he would not back a repeal of the rule. Other Republicans are also wavering.
“Moderate Republicans don’t want to be painted as anti-consumer,” said Isaac Boltansky, the director of policy research at Compass Point, a research firm tracking the fate of the agency’s recent rules.
Correction: September 1, 2017
An earlier version of this article incorrectly quoted Richard Hunt of the Consumer Bankers Association. Mr. Hunt described Richard Cordray as “definitely ideological,” not as “doggedly ideological.”