May 22, 1911

Mr. SUTHERLAND. I present the views of the minority of the Committee on the Judiciary upon the joint resolution (H. J. Res . 39) proposing an amendment to the Constitution providing that Senators shall be elected by the people of the several States. I ask that the report be printed, and that it also be printed in the RECORD. .

The VICE PRESIDENT. The views of the minority will be printed under the rule, and without objection the order to print in the RECORD will be made as requested . .

The views of the minority (S . Rept. No. 35) , submitted by Mr. SUTHERLAND from the Committee on the Judiciary, are as follows :

NATIONAL CONTROL OVER. ELECTION OF SEL"'l'ATOBS.

VIEWS Oll' THE l\IINORITY OF THE SENATE COMMITTEE ON THE JUDICIARY ON HOUSE .JOINT RESOLUTION 39, PROPOSING AN AMENDMENT

CONSTITUTION PROVIDING THAT SENATORS SHALL BE' ELECTED BY THD

PEOPLE OF THE SEVERAL S'l'ATES.

The undersigned members of the Senate Committee · on the Judiciary dissent from the action of the committee in reporting favorably House joint resolution No. 3!) on the following grounds . The resolution as reported is as follows :

"ResoZvea by the Senate and House of Representatives of the Dntteil States of America ir~ Congress assembled (two-thirds of each House concurring therei n), That in lieu of the first paragraph of section 3 or Article I of the Constitution of the United States, and in lieu of so much of paragraph 2 of the same section as relates to the filling of vacancies, and in lieu of all of paragraph 1 of section 4 of said Article I, in so far as the same relates to any authority in Congress to make or alter regulations as to the times or manner of holding elections for Senators, the following be proposed as an amendment to the Constitution, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the States :

u 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 branches of the State legislature.

" The times, places, and manner of holding elections for Senators shall be as prescribed in each State by the legislature thereof.

"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 r ·-.tio n. Constitution."

This contains two separate and distinct amendments to the Constitution. The first is an amendment to section 3 of Article I so as to provide for the direct election of Senators by the people. The second is an amendment of section 4 of Article I so as to destroy the power which the National Government now has to regulate and direct t he time and manner of electing Members of its own Senate.

The fourth section of the first article now reads as follows :.

" The times, places , and manner of holding elections for Senators an d R eprese nta tive s shall be pres cri be d i n e a ch S ta te by tll.e legislature corruption. thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators."

This provision requires the State legislatures, in the performance of a duty under the National Constitution, to regulate the times and manner of holding elections both for Senator and Representatives, , and gives the National Congress power at any time by law to make or alter such regulations.

Under this provision it was clearly contemplated that the authority to prescribe the times, places, and manner of holding elections for Representatives and Senators should primarily vest in the State legislatures, but that the ultimate power to make or alter such regulations should for eve r remain in the bands of the Federal Government. It is manifest that the framers of the Constitution intended that this supervisory power on the part of Congress should exist independently of the way in which the Members of Congress should be elected. Representatives, ­ tives, under the Constitution, are now elected by the people; Senators are elected by the various legislatures, but in both instances the authority of Congress to regulate the election is preserved.

There would seem to be no doubt that if the Constitution had originally provided for the popular election of Senators as it did for the election of Representatives, provision would have been made for the supervisory control by Congress over such elections, just as it is now provided with respect to elections by the legislatures .

The resolution, as reported, leaves the duty of the State legislatures and the power of Congress the same, so far as Representatives are concerned; but, so far as. Senators are concerned, it strikes out the words which empower the Congress at any time by law to make or alter the regulations, and it thus transfers from the National Con ­ gress to the State legislatures the power of control over the election of Senators, which the National Government now has and has had since the beginning of the Government, and which it has and will continue to have over the election of Representatives .

The resolution also makes another change in section 4, which will be important in determining the construction of the instrument and the nature of the powers to be exercised by the State legislatures. The present provision is a command to the State legislatures to prescribe the times, places, and manner of holding elections, subject to the ultimate authority of Con~ress. In performing that function the State legislatures are discharging a duty under the Constitution of the United State~actin?, by its author i ty . The proposed amendment in ­ serts the word "as • before the word "prescribed," and makes the provision read : " The times, places, and manner of holding elections for Senators shall be a.s prescribed in each State by the legislature thereof." The command to the State legislatures is thus taken out of the Constitution, and tile legislatures, in making such regulations as they see fit to make, will be rforming no duty imposed upon them by the Constitution of the United States, but exercising. according to their own will and pleasure, an authority to which the Government of the United States will be snbjected...

As to these proposed changes in section 4 of Article I, we consider-" First. That they are unnecessary to accomplish the purpose of secur ­ ing the direct election of Senators by the people. They do not aid or contribute to the direct election of Senators in any manner or degree . There is no reason why the ultimate authority of the National Government over the times and manner of electing Senators by direct, popular vote should not continue to be exercised, just as it always has been exercised, over the direct election of Representatives by popular vote . The exercise of that national power over the popular election of Representatives meets now with no objection, and, under the proposed amend ­ ment, is t o continue. The proposed change from legislative election of Senators to popular election of Senators furnishes no reason whatever for destroying the ultimate power of control over the election of . Sena tors which the National Congress now has under the Constitution .

Second . The abandonment of national authority by the proposed changes in section 4 would be a fundamental and vital change in our system of government, and should be regarded as far more important than the change from legislative to direct election of Senators, to · which it has been attached in the resolution reported as if it were merely incidental and sub-Ordinate. The present provision contained in section 4 of Article t was adopted by the framers of the Constitution TO THE after full discussion and upon great consideration . The conclusion expressed in the section as adopted was an assertion of the ultimate authority of the Nati-onal Government over the steps necessary to constitute the Government and to insure its continued exercise and power to act. It was one of a series o! provisions which established definitely the distinction between the old Confederation, under which the Central Government was dependent upon the States, and the new National Government, which was to contain within itself every element of power essential to its continued existence and effectiveness. The proposed change would reverse that conclusion, would change the theory and the nature of the relations between the National Government and the several States, and would leave the Nation dependent upon the several States and without authority of its own in respect of an essential part of the machinery necessary to its continued existence. ·

How vital is the preservation of the supervisory powe-r conferred upon Con gress by section 4 6f Article I was strongly set forth by the Supreme Court of the United States through Mr. Justice Miller, delivering the opinion in the Yarbrough case (110 U. S., 651). In tha.t case the Supreme Court was passing upon the validity of the Federal election law of 1870, an act based upon the authority conferred by the first clause of section 4 of Article I. We quote from the opinion as follows : u That a Government whose essential character is republican, whose executive head and legislative body are both elective, whose most numerous and powerful branch of the legislature is elected by the people directly, has no power by appropriate laws to secure this election from the influence of violence, of corruption, and of fraud, is a. proposition so startling as to arrest attention and demand the gravest CQnsidera - tlon . • • • .

" If this Go-vernment ts anything more than a mere aggregation of dele gate d agents of other States and governments, each of which is superior to the General Government, it must have the power to protect the elections on which its existence depends from violence and cor­ :. If it has not this power it is left helpless before the two great: natural and historical enemies of all republics--open violence and insid ­ ious corruption .

"It is as essential to the successful working of this Government that the great organisms of its executive and legislative branches should be the free choice of the people as that the original form of it should be so. In absolute governments, where the monarch is the source of all power, it is still held to be important that the exercise of that ' t power s h al l be free from the infiuen ce o f extraneous violence a n d interna l

" In a republican government like ours, where political power is reposed in Representatives of the entire body of the people chosen at short intervals by popular election, the temptations to control these elections by violence and by corruption is a constant source of dan­ "1f the Government of the United States has within its constitutiom1l domain no authority to provide against these evils, if the very sources of power may be poisoned by corruption or e-0ntrolled by violence and outrage, without legal restraint, then, Indeed, is the country In danger, and its best power s, Its highest purposes. the hopes which it inspires, and the love which enshrines It, are at the mercy of the combinations of th ose who respect no right but brute force on the one hand and unprin ­ cipled corruptionists on the other."

The Senate of the United States and the House of Representatives constitute one of the three great departments of - the Federal Governme nt upon whose existence and efficiency the very life of the Nation depends. To say that one branch of this department shall be In the a hsolu tely uncontr o lled power of the various State governments is to de ny the supremacy of the Federal Government. and to that extent make it subordinate to the government of the several States. No matter what laws the 8tate governments may pass regulating the time and manner of the election of Senators . no matter bow profound may be the effect of such laws upon the efficiency of the Senate, the Federal Gover nm ent if this resolution shall be finally adopted. will be utterly powerless t~ p rotec t Itself. Jt would seem that the mere statement of such a eontin g-e ncy, however remote Its happening may appear to be, should be suffi cien t to prevent its adoption. No harm can possibly result from a o"ltl ua ti on of the supervisory power in the hands of Congress while infinite harm mh':'ht follow its destruction. '

Third. That possession by the National Government of the power of control over the election of its own le,gislatlve bodies is a matter of practical coneern is shown by the fact that it has been found necessary to exercise that control in the past regarding both branches of the National Le)?'islature. It was found neces ary to regulate the elect io n of Representatives by a national statute passed in 1842 and by further statutes in 1R72, 1nder which those elections are still held and it was found necessary to regulate the lei?islative proceeding for th'e election of Senators by national statute In 1866. The Federal election law of 1870 and the s11bsequent amendments of that law were based upon this provision of the f'onstitution. No one can tell when the further or renewed exercise of that power may be of the hit?hest importance to the National Government. A moment's reflection will indicate that the greatest inconvenience and possihility of abuse might grow out of a variety of re gulations in the different States fixing dit'l'erent times and ways of electln~ Senators ln the absence of any power In tbe National Government to require a general and harmonious system throughout the States. But It is not requisite to show how the exercise of the power will be necess ry in the future. It rests upon those who wish to destroy the pow~r. to show that there can be no need of It in the future. Thfs bas not been, and can not be. successfully attempted.

Fourth. It Is not proposed to disturb the power which section 5 of Article I of the Constitution confers upon each House of ConA'ress to " he the judge of the elections. returns , and qualifications of its own Members." That power is essential. It must rest somewhere. and under our system. which separates the judicial and legislative branches, it can rest nowhere but in tht' legislative bodies themselves. It has beE>n exercised by the House of Representatives in respect of the popular election of its Me~ber~ In more than 400 eases during the 122 years of the Governments existence. The continu ance of the power to regulate the time and manner of holding elections, which it is proposed to strike out from section 4 of Article !· is nece sary to enable the Houses of Congrel'I~ to perform the duty of Jud~lng of the elections and returns of th Ir Membe-l"l!I. In order to perform that duty Congress must have the power to require that elections shall be held at such times and in such manner that there shall be competent and sufficient evidence available to enable tbe judging body to get at the truth and secure a ba is for a just judi:ment.

Fifth . Possession of the power which it ts proposed to strike out from section 4 is essential to enable the National Government to act effectively In case It should ever have occnsion to enforce the provisions of the fourteenth and fifteenth amendments to the Constitution. The basis of any . enforcemPnt of those frovisions must necessarily be the ascertainment and establisbm nt o the facts In respf'et of the elections to w_hicb they may relate. The proposed amPndment of SPC ­ tion 4 of Article I, if adopted, would he the latest expression of the sovereign will of, the peoplf' of the United States. and would take away from the National Government authority to make tbnse re gulations re 0 ardin!? elections which are essential to the preservation ot evirlf'nce regarding what actually occurs.

Thf're may be a df1l'erence of opfnfon ns to whether the fourteenth and fifteenth amendments ~hould remain In the Conf!ltftutfon but It surely can not be thought consfatent with the dignity and honor of the TTnitPd States to lenve them In the C'om~titution and at the sam~ time urrender the power which would be nc>Ct>ss ary for their enforct>mPnt.

Sixth. Tbe proposed amendment of secti-0n 4, depriving the United States of its authority over the ultimate control of the election of the Memhers o.f its Senate, has not been demanrled O! sought by the people of the Umted States. It bas had no general discussion or consideration by them. It has had no genera.I dil'lcussion or consideration In Conirress. It bas been propoRed and reported as if it were an incident to another amendme.nt to which it bears no nece . S?-ry rf'lation ; as if it were a llgbt and trifling matter; and no just basis exists upon which the Senate of the United States can now take the grave and serious step of proposing tt to the State Ieuislatures.

Seventh. It has bPE•n ~ontended by sonre that even i1 the provision of the Constitution conferrmg upon Congress the authority to regulate the times and mnnne1 of the electfon of Senators shall be eliminated full power will st!ll exist under other gen~ral provisions. We are unable to agree with this contention. Under the resolution express power is granted to the States t<? regulate this subject. Tbe language Is exclusive; the wh~le power is granted to the Stnte, and nothing whati>ver upon this subJect is reserved to Congress. To expressly grant exclusive power over the .subject to the State governments is equivalent to a denial of the same power to the General Government, and nothing can be clearer than that such express and exclusive grant would foreclose the General Government from exercifilng the same power under llDY general language contained in the Constitution.

It has been suggested that the right to vote for a Member of Congress ls a ri~~t guaranteed by the Ff'deral Constitution, and that Congress would t.nerefore have the implied power to pass any regulation necessary to preserve this right. It is to be observed, boweve-r, that the power to r~ulate the time and manner of the election of Senators is to b" $pecifical1y granted to the State legislatures, and lt is difficult to understand how an implied power can exist in one agent to do .a thing under general language where the identical J'OWer has been specificnHy and in exclusive terms granted to another.

The _resolution now before the Senate is an exact copy .ef the joint resolut10n reported by Representative 'l'ucker, of Virginia, in the Fiftyseco1;1d Congress. Mr. Tucker, who was an able lawyer, in the course of hlS report, stated:

" It is proposed to abrogate and annul the above [referrillg to clause 1, section 4] in so far as it gives to Congresi:: any control , absolute or remote and contingent, over the election · of United States Senators by substituting the following language for so much thereof as refers to the el ec tion of Senators: 'The times, P.laces, and manuer ef holdin" elections for Senators shall be as prescribed in each State by the legis~ lature thereof.' ..

Here is a plain, straightforward, candid statement ef one of the great lawyers of the country, who knew precisely what he desired to accomplish ; that the effect of this portion of the reselutio:::i is to annul clause 1 of section 4 as far as it giTes Congre s any contr?l ".absolute or remote ana contingent." and, in the opini n of th~ ~mori.ty members of the committee, lli. Tucker's view f the matter is entirely correct. If the proposed change in the language ef clause 1 of section 4 does not have this result and does not hnve the effect to deprive Congress of Its power ln the premises, we are semewbat at a lo ss to understand what its proponents, who take this view. seek to Eighth. Tbe two proposed amendments ought to be ~onsidered separately, and each upon its own merits. The e:risting tendency toward the direct election of Senators by the people ought not to l>e made a vehicle or pretext for getting the approval of Congress to an entirely separate and distinct proposal to destroy Federnl control o er elections. The peop.Je of the country ought not to be compelled to appron, through their le gis latures, a change which they may not desire as the Il.rice of securing another change whkb they may desire. In order to prevent this unfair and injurious treatment of the subject, we recemmend that th€ resolution be amended to read as follows : "Joint resolution p1oposing an amendment to the Conetltutio• providing that Senators shall be elected by the people of the several States. "Resolved by the Senate and House of Representative$ of the United Stat es of Am . erica in Congi·ess assembled Ctwo-thwds of e11ch Hou1te concurring therein I, That in lieu of the first paragraph of m;ection 3 of A rticle I of the Constitution of the United States, and In lieu of so much of paragraph 2 of the same section as relntes tel the Alling of vacancies, the following be proposed as an amendment te the Constitution. which shall be valid to all intents and purpoRes u pa.rt of the Constitution when ratified by the legislatures of three-feurths of the Stare :

"'The Senate of the United States shall be eomposed of twe !Senators from each State, elected by the people thereof, for six year11; and each Senator shnll have one vote. The electors in each State shaTI have the qualifications requisite for electors of the mo t num~rous lraach ef the State legislature.

" ' Wpen vacancies happen in the representation of a y St:Ate in the Senate, the executive authority of sucb State shall u sue 1'frits ef election to fill such vacancies: Prodded, That the leirisl atur e of any State ma~ empower the executive tbe_reof to make temporary appointments until the people fill the vacancies by election as the legil1h1ture may direct.

"'This :1mendment shall not be so construed as t• nfreet tbe election or term of any Senator chosen before it becomee valid as part ef the Constitution.'" c. D. CLARK.

KNUTE NELSON.

WILLIA I P. DTLL~ULUI.

Goo. SuTHEnL . .. wo.

FRANK B. BRANJ)EGD.

ELIHU ROOT.

lliY 22, 1911.

FURTHER VIEWS OF MESSRS. DILLINGHAM, BRANnllG•.S, J.H ROOT.

Tbe undersigned, who have joined in the fore!l"olng expr~ion of vie-ws regarding the amendment of section 4 of Article 1 of the Constitution, wish also to put upon record an expression of their eplnion that the amendment of section 3 of Article I so as to provMe for the direct election of Senators by the people instead of by State le )! islatmes is inex pedient and unnecessary. We think that the cbnnge wauld be injurious rather than beneficial, and that the abuses which h1ne led to the proposal of the amendment can be obviated by a simple act f legislation, without any amendment to the Constitution. A till fer that purpose (S. 123) is now pending in the Senate .

WILLIAM P. DILLINflHAll.

FRA NX R BRANl)EQJ;Jl.

ELIHU Ro 1!.

lliY 22, 1911.