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62d Congress, ) 
 1st Session. \ 
 
 SENATE. 
 
 Report 
 
 No. 35. 
 
 NATIONAL CONTROL OVER ELECTION OF SENATORS, 
 
 May 22, 1911.— Ordered to be printed. 
 
 Mr. Sutherland, from the Committee on the Judiciary, submitted 
 
 the following 
 
 VIEWS OF THE MINORITY. 
 
 [To accompany H. J. Kes. 39.] 
 
 The undersigned members of the Senate Committee on the Judiciary- 
 dissent from the action of the committee in reporting favorably House 
 joint resolution 39 on the following grounds. The resolution as reported 
 is as follows: 
 
 Resolved by the Senate and House of Representatives of the United States of America in 
 Congress assembled {two-thirds of each House concurrivg therein), That in lieu of the 
 first paragraph of section three of Article I of the Constitution of the United States, 
 and in lieu of so much of paragraph two of the same section as relates to the filling 
 of vacancies, and in lieu of all of paragraph one of section four 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: 
 
 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 legislature. 
 
 The times, places, and manner of holding elections for Senators shall be as pre- 
 scribed 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 Constitution. 
 
 This contains two separate and distinct amendments to the Consti- 
 tution. The first is an amendment to section 3 of Article I so as tc 
 provide for the direct election of Senators by the people. The second 
 is an amendment of section 4 of Article I so as to destroj^ the power 
 which the National Government now has to regulate and direct the 
 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 and Kepresenta- 
 tives, shall be prescribed in each State by the legislature 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 dut}^ under the National Constitution to regulate the times and man- 
 
J r. 1 i 7-2 
 2 NATIONAL CONTROL OVER ELECTION OF SENATORS. A ■- 
 
 ner of holding elections both for Senators and Representatives, and 
 gives the National Congress power at any time by law to make or 
 alter such regulations. 
 
 Under this provision it was clearl}^ contemplated that the authority 
 to prescribe the times, places, and manner of holding elections for 
 Representatives and Senators should primarily vest in the State legis- 
 latures, but that the ultimate power to make or alter such regulations 
 should forever remain in the hands of the Federal Government. It is 
 manifest that the framers of the Constitution intended that this super- 
 visory power on the part of Congress should exist independentl}'' of 
 the way in which the Members of Congress- should be elected. Rep- 
 resentatives, 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 origi- 
 nally 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 Congress 
 to the State legislatures the power of control over the election of Sen- 
 ators 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 pre- 
 scribe the times, places, and manner of holding elections, subject to 
 the ultimate authority of Congress. In performing that function the 
 State legislatures are discharging a duty under the Constitution of the 
 United States, acting by its authority. The proposed amendment 
 inserts the word "as" before the word "prescribed" and makes the 
 provision read: 
 
 The times, places, and manner of holding elections for Senators shall be as pre- 
 scribed in each State by the legislature thereof. 
 
 The command to the State legislatures is thus taken out of the Con- 
 stitution, and the legislatures in making such regulations as they see 
 fit to make will be performing 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 subjected. 
 
 As to these proposed changes in section 4 of Article I we consider: 
 First. That they are unnecessary to accomplish the purpose of 
 securing 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 
 
NATIONAL CONTROL OVER ELECTION OF SENATORS. 6 
 
 of Representatives meets now with no objection and, under the pro- 
 posed amendment, is to continue. The proposed change from legisla- 
 tive election of Senators to popular election of Senators furnishes no 
 reason whatever for destroying the ultimate power of control over the 
 election of Senators 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 subordinate. The present provision contained 
 in section 4 of Article I was adopted by the f ramers of the Constitu- 
 tion after full discussion and upon great consideration. The conclu- 
 sion expressed in the section as adopted was an assertion of the ulti- 
 mate authority of the National 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 of 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 Govern- 
 ment 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 power conferred 
 upon Congress by section 4 of Article 1 was strongly set forth by the 
 Supreme Court of the United States, through Mr. Justice Miller, deliv- 
 ering the opinion in the Yarbrough case (110 U. S., 651). In that case 
 the Supreme Court was passing upon the validity of the Federal elec- 
 tion law of 18Y0, an act based upon the authority conferred by the 
 first clause of section 4 of Article I. We quote from the opinion as 
 follows: 
 
 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 con- 
 sideration. 
 
 If this Government is anything more than a mere aggregation of delegated agents of 
 other states and governments, each of which is superior to the General Govern- 
 ment, it must have the power to protect the elections on which its existence de- 
 pends from violence and corruption. 
 
 If it has not this power it is left helpless before the two great natural and histori- 
 cal enemies of all republics — open violence and insidious 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 exer- 
 cise of that power shall be free from the influence of extraneous violence and inter- 
 nal corruption. 
 
 In a republican government, like ours, where political power is reposed in repre- 
 sentatives 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 danger. * * * 
 
 If the Government of the United States has within its constitutional domain no 
 authority to provide against these evils, if the very sources of power may be poisoned 
 
4 IsTATIONAL CONTROL OVER ELECa'ION OF SENATORS. 
 
 by corruption or controlled by violence and outrage, without legal restraint, then 
 indeed is the country in danger, and its best powers, its highest purposes, the hopes 
 which it inspires, and the love which enshrines it are at the mercy of the combina- 
 tions of those who respect no right but brute force on the one hand and unprincipled 
 corruptionists on the other. 
 
 The Senate of the United States and the House of Representatives 
 constitute one of the three great departnrepts of the Federal Govern- 
 ment upon whose existence and efficiency the very life of the Nation 
 depends. To say that one branch of this department shall be in the 
 absolutel}'^ uncontrolled power of the various State governments is to 
 deny 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 State governments may pass regulating the time 
 and manner of the election of Senators, no matter how profound may 
 be the effect of such laws upon the efficiency of the Senate, the Federal 
 Government, if this resolution shall be finally adopted, will be utterly 
 powerless to protect itself. It would seem that the mere statement of 
 such a contingency, however remote its happening may appear to be, 
 should be sufficient to prevent its adoption. No harm can possibly 
 result from a continuation of the supervisory power in the hands of 
 Congress, while infinite harm might follow its destruction. 
 
 Third. That possession by the National Government of the power 
 of control over the election of its own legislative bodies is a matter of 
 practical concern is shown by the fact that it has been found necessary 
 to exercise that control in the past regarding both branches of the 
 National Legislature. It was found necessary to regulate the election 
 of Representatives by a national statute passed in 1842 and by further 
 statutes in 1872, under which those elections are still held, and it was 
 found necessary to regulate the legislative proceeding for the election 
 of Senators by national statute in 1866. The Federal election law of 
 1870 and the subsequent amendments of that law were based upon this 
 provision of the Constitution. No one can tell when the further or 
 renewed exercise of that power may be of the highest importance to 
 the National Government. A moment's reflection will indicate that 
 the greatest inconvenience and possibility of abuse might grow out of 
 a variety of regulations in the difl^erent States fixing difl'erent times 
 and waj^s of electing Senators in the absence of any power in the 
 National Government to require a general and harmonious sj^stem 
 throughout the States. 
 
 But it is not requisite to show how the exercise of the power will be 
 necessary in the future. It rests upon those who wish to destroy the 
 power to show that there can be no need of it in the future. This h^s 
 not been and can not be successful!}^ attempted. 
 
 Fourth. It is not proposed to disturb the power which section 5 of 
 Article I of the Constitution confers upon each House of Congress to 
 "be the judge of the elections, returns and qualifications of its own mem- 
 bers." 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 the legislative bodies themselves. It has been 
 exercised by the House of Representatives in respect to the popular 
 election of its members in more than 400 cases during the 122 years of 
 the Government's existence. The continuance of the power to regulate 
 the time and manner of holding elections, which it is proposed to 
 strike out from section 4 of Article I, is necessary to enable the Houses 
 of Congress to perform the duty of judging of the elections and returns 
 
NATIONAL OONTEOL OVEK ELECTION OF SENATOES. 5 
 
 of their members. 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 the judging body to get at the truth and secure a 
 basis for a just judgment. 
 
 Fifth. Possession of the power which it is proposed to strike out 
 from section 4 is essential to enable the National Government to act 
 effectively in case it should ever have occasion to enforce the provisions 
 of the fourteenth and fifteenth amendments to the Constitution. 
 The basis of any enforcement of those provisions must necessarily be 
 the ascertainment and establishment of the facts in respect of the 
 elections to which they may relate. The proposed amendment of 
 section 4 of Article 1, if adopted, would be the latest expression of the 
 sovereign will of the people of the United States, and would take 
 away from the National Government authority to make those regula- 
 tions regarding elections which are essential to the preservation of 
 evidence regarding what actually occurs, 
 
 There may be a difference of opinion as to whether the fourteenth 
 
 . and fifteenth amendments should remain in the Constitution, but it 
 
 surely can not be thought consistent with the dignity and honor of the 
 
 United States to leave them in the Constitution and at the same time 
 
 surrender the power which would be necessary for their enforcement. 
 
 Sixth. The proposed amendment of section 4 depriving the United 
 States of its authority over the ultimate control of the election of the 
 members of its Senate has not been demanded or sought by the people 
 of the United States. It has had no general discussion or considera- 
 tion by them. It has had no general discussion or consideration in 
 Congress. It has been proposed and reported as if it were an incident 
 to another amendment to which it bears no necessary relation; as if it 
 were a light 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 it to the State legislatures. 
 
 Seventh. It has been contended by some that even if the provision 
 of the Constitution conferring upon Congress the authority to regu- 
 late the times and manner of^the election of Senators shall be elimi- 
 nated, full power will still exist under other general provisions. We 
 are unable to agree with this contention. Under the resolution 
 express power is granted to the States to regulate this subject. The 
 language is exclusive; the whole power is granted to the State, and 
 nothing whatever upon this subject is reserved to Congress. To 
 expressly grant exclusive power over the subject to the State govern- 
 ments is equivalent to a denial of the same power to the General Gov- 
 ernment, and nothing can be clearer than that such express and 
 exclusive grant would foreclose the General Government from exer- 
 cising the same power under any general language contained in the 
 Constitution. 
 
 It has been suggested that the right to vote for a Member of Con- 
 gress is a right guaranteed by the Federal Constitution, and that 
 Congress would therefore have the implied power to pass any regula- 
 tion necessary to preserve this right. It is to be observed, however, 
 that the power to regulate the time and manner of the election of 
 Senators is to be specifically granted to the State legislatures, and it is 
 di«cult to understand how an iw/plied power can exist in one agent to 
 do a thing under general language where the identical power has been 
 specificalfy and in exclusive terms granted to another. 
 
b NATIONAL CONTROL OVEE ELECTION OF SENATORS. 
 
 The resolution now before the Senate is an exact copy of the joint 
 resolution reported by Representative Tucker, of Virginia, in the 
 Fifty-second Congress. Mr. Tucker, who was an able lawyer, in the 
 course of his report stated: 
 
 It is proposed to abrogate and annul the above [referring to clause 1, section 4] in 
 so far as it gives to Congress 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 election of Senators: "The times, places, and manner 
 of holding elections for Senators shall be as^prescribed in each State by the legisla- 
 ture thereof." 
 
 Here is a plain, straightforward, candid statement of one of the 
 great lawyers of the country, who knew precisely what he desired to 
 accomplish, that the effect of this portion of the resolution is to annul 
 clause 1 of section 4, as far as it gives Congress any control "absolute, 
 or remote and contingent," and in the opinion of the minoritj^ mem- 
 bers of the committee Mr. Tucker's view of the matter is entirely 
 correct. If the proposed change in the language of clause 1 of sec- 
 tion 4 does not have this result and does not have the effect to deprive 
 Congress of its power in the premises, we are somewhat at a loss to 
 understand what its proponents who take this view seek to gain. 
 
 Eighth. The two proposed amendments ought to be considered 
 separately, and each upon its own merits. The existing tendency 
 toward the direct election of Senators by the people ought not to be 
 made a vehicle or pretext for getting the approval of Congress to an 
 entirely separate and distinct proposal, to destroy Federal control over 
 elections. The people of the country ought not to be compelled to 
 approve, through their legislatures, a change which they may not 
 desire as the price of securing another change which they may desire. 
 In order to prevent this unfair and injurious treatment of the subject, 
 we recommend that the resolution be amended to read as follows: 
 
 JOINT RESOLUTION^Proposing an amendment to the Constitution providing that Senators shall be 
 elected by the people of the several States.| 
 
 Resolved by the Senate and House of Representatives of the United States of America in 
 Congress assembled {two-thirds of each House concurring therein), That in lieu of the 
 first paragraph of section three of Article I of the Constitution of the United States, 
 and in lieu of so much of paragraph two of the same section as relates to the filling of 
 vacancies, 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: 
 
 " 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 legislature. 
 
 "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." 
 
 C. D. Clark. 
 Knute Nelson. 
 William P. Dillingham. 
 George Sutherland. 
 Frank B. Brandegee. 
 Elihu Root. 
 May 23, 1911. 
 
FURTHER VIEWS OF MESSRS. DILLINGHAM, 
 BRANDEGEE, AND ROOT. 
 
 The undersigned, who have joined in tlie foregoing- expression of views 
 regarding the amendment of section 4 of Article I of the Constitution, 
 wish also to put upon record an expression of their opinion that the 
 amendment of section 3 of Article 1 so as to provide for the direct 
 election of Senators by the people instead of by the State legislatures 
 is inexpedient and unnecessary. We think that the change would be 
 injurious rather than beneficial and that the abuses which have led to 
 the proposal of the amendment can be obviated by a simple act of legis- 
 lation, without any amendment to the Constitution. A bill for that 
 purpose (S. 123) is now pending'in the Senate. 
 
 William P. Dillingham. 
 Frank B. Brandegee. 
 Elihu Root. 
 May 22, 1911. 
 
 7 
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