Source: Wikimedia Commons.

The answer is simple: It would be probably be controlled by the Republicans, with a chance that it could be a filibuster-proof majority.

Related Link: Happy Birthday, 17th Amendment!

Given that the House is already controlled by the GOP, laws enacted by the Democrats in the past two years may not have fared well with a Republican-controlled Congress.

Prior to 1913, when the 17th Amendment was ratified, state legislatures elected two U.S. senators to represent them in Congress.

Members in each state House and each state Senate, in most cases, would meet separately to pick a candidate as its representative in the U.S. Senate.

If the two caucuses picked the same person, the race was over and that person was sent to the U.S. Senate. (The elections were staggered so only one senator was chosen every two or four years.) But if different candidates were preferred for that one U.S. Senate seat, the legislatures met in a combined session until they could agree on a selection.

This indirect selection method had its flaws. Deadlocks could prevent a state from sending someone to Congress.

In a research paper, Wendy Schiller from Brown University and Charles Stewart III from MIT looked extensively at data between 1871 and 1913 about indirect U.S. Senate elections.

About 75 percent of the elections were handled quickly within state legislatures, and in 69 percent of cases, a majority party was able to elect the same candidate in each chamber. Other races were resolved in joint assemblies.

Only 2 percent of the races ended in a deadlock–but these deadlocks were devastating, because they prevented patronage jobs from being appointed.

Jumping forward 100 years, Constitution Daily looked at the current composition of state legislatures to see how the U.S. Senate would look if it reflected how Democrats and Republicans currently control state Houses and Senates.

If we consider any state chamber that has a margin between the two parties of less than 10 percent as “undecided,” the breakdown would be 51 seats for the Republicans, 36 for the Democrats, and 15 seats undecided (where chambers have a smaller difference between the parties).

Along strict party lines, the GOP would have 58 seats in the U.S. Senate, with 41 seats for the Democrats, and one seat deadlocked. That would put the Republicans within two votes of a filibuster-proof 60-vote majority.

Currently, the Democrats control 53 seats in the U.S. Senate; plus, two independent senators caucus with the Democrats.

In 2009, the Senate would have looked different under a Constitution without the 17th Amendment. Before the 2010 midterm elections shifted power at a state level to the Republicans, the Democrats controlled 27 state legislatures, with the GOP in control of 14 states and 8 states with split legislatures.

The Democrats lost control of nine state legislatures in those midterm elections, and the Republicans now control 27 state legislatures.

The amendment ratified 100 years ago still has its critics, particularly among states’ rights advocates. Just last month, Georgia state legislators proposed a resolution asking Congress to repeal the 17th Amendment.

Repeal proponents have pointed to several benefits. Foremost, it gives state governments a direct voice in the federal government and budgeting process, something proponents believe reflect the desire of the Founding Fathers for states to have a dynamic role in Washington.

But other factors would make repeal problematic. Only one amendment, the 18th, has ever been repealed, when the 21st Amendment ended Prohibition.

The anti-17th Amendment forces would need 38 states to ratify a repeal amendment, which is no small task, since two-thirds of Congress or the states would need to agree to offer one up for ratification votes.

And there is the debate over redistricting–specifically, how states each determine the districts that send representatives to the state capital. For example, Pennsylvania currently has 50 U.S. Senate districts and 203 U.S. House districts. Redrawing those districts would be as critical to a U.S. Senate election as redistricting is at a federal level for U.S. House of Representative elections.

Another factor would be campaign spending. Millions of dollars of outside money poured into 2012 U.S. Senate elections. According to data from the Campaign Finance Institute, $315 million was spent on U.S. Senate campaigns in 2012. The U.S. Senate race in Virginia has $51 million in spending by itself. Under the pre-1913 voting rules, the candidates for that seat wouldn’t even be in play until after the November general election was over, so there would be no opportunity for special interests to invest in campaigns.

On top of these challenges, perhaps the most significant factor preventing repeal would be what helped the amendment pass in the first place–the idea that the direct election of senators, giving power to the people rather than the states, is the most democratic approach.

Scott Bomboy is the editor-in-chief of the National Constitution Center.

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Today we celebrate the anniversary of the 17th Amendment (ratified April 8, 1913). Here’s what you need to know:

WHAT IT DOES

The 17th Amendment allowed senators to be directly elected by the people rather than by state legislatures. It also changed the system for filling vacancies in the Senate.

WHY IT WAS ADDED

The idea of directly electing senators had been floating around since the Constitutional Convention. The lone supporter of this measure was delegate James Wilson, who reasoned that “no government could long subsist without the confidence of the people.” He also said it gave too much power to the state legislatures. About a century later, Populist Party leaders led the way for reform, arguing that the election by state legislatures led to corruption and gridlock.

WORD-FOR-WORD

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.

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Pete Hoekstra, a Republican, is a former House of Representatives member who is running in Michigan against an incumbent, Senator Debbie Stabenow.

The newsletter and website Roll Call dug up comments from Hoekstra, made last November, about overturning the 17th Amendment, which allows citizens to vote directly for U.S. senators.

“The direct election of U.S. Senators made the U.S. Senate act and behave like the House of Representatives,” Hoekstra said last year in a radio interview. “The end result has led to an erosion of states’ rights.”

Ironically, Hoekstra had served in the House of Representatives from 1993 until 2010, and he is running for a Senate seat under a process he would outlaw.

In 1913, the 17th Amendment was passed to override part of Article 1, Section 3, of the Constitution, which designated that state legislatures, not the people, select two people per state to serve as senators.

Back in 1787, the theory was that the indirect election of senators would give state legislatures a direct voice in the federal government, and act as a guarantee of states’ rights.

But problems with deadlocked legislatures and corruption led to a reform movement that advocated direct elections for the Senate.

The movement prevailed in 1913 as Congress acted to get the 17th Amendment passed onto the states for approval. The states themselves were close to calling their own constitutional convention before Congress acted.

Today, Hoekstra and some other GOP members couch the argument of a 17th Amendment repeal in the concept of giving states back their full rights under the Constitution.

The Roll Call article lists four other GOP members who’ve made remarks about repealing the amendment since 2010: Representatives Jeff Flake and Todd Akin, Indiana state treasurer Richard Mourdock, and Senator Mike Lee.

Mourdock, a Senate candidate in Indiana, said earlier this year that the 17th Amendment hurts the states.

“The House of Representatives was there to represent the people. The Senate was there to represent the states,” Mourdock said in February.

Link: Mourdock on the 17th Amendment

A Hoekstra spokesman later said the candidate “never exerted any energy” in pushing the 17th Amendment issue.

On Wednesday, the Tucson Citizen and Arizona Republic ran a story on Flake’s comments on the 17^th Amendment.

Flake’s opponent picked up on his 17^th Amendment bashing, and the little-discussed amendment became part of Arizona’ current Senate election debate – at least for a few minutes.

“Congressman Flake is proving his extreme ideas are not even remotely tethered to reality,” said a spokesman for Richard Carmona, Flake’s opponent.

In remarks send to the Arizona Republic, Flake downplayed the incident.

“I’m under no illusion that you’ll ever go back because you have 100 senators who have been elected who would worry that they wouldn’t be appointed, and so I think we’ve probably crossed that Rubicon,” Flake said.

A Flake spokesman added that the candidate never called for the 17^th Amendment’s repeal.

Also, remarks from other politicians cited in the Roll Call article seem philosophical in nature.

The logistics involved in repealing an amendment are truly daunting. Only one amendment has been repealed in 225 years, when the 21st Amendment repealed the 18th Amendment, which established Prohibition in 1919.

If the 17th Amendment were repealed today, it would certainly benefit the Republicans.

Currently, the GOP controls 60 state chambers (houses or senates), and under the terms of the original Article 1, Section 3, of the Constitution, that would potentially give the Republicans at least 60 seats in the U.S. Senate.

The Republicans also fully control both legislatures in 26 states.

Scott Bomboy in the editor-in-chief of the National Constitution Center.

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