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THE LIBRARY
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EDITED BY
RALPH CURTIS RINGWALT
Hmerican public probleme
EDITED BY
RALPH CURTIS RINGWALT
IMMIGRATION : And Its Effects
Upon the United States
By Prescott F. Hall, A.B., LL.B., Secretary of the Immigration Restriction League. 393 PP- $1.50 net. By mail, $1.65.
" Should prove Interesting to everyone. Very read- able, forceful and convincing. Mr. Hall considers every possible phase of this great question and does it in a masterly way that shows not only that he thor- oughly understands it, but that he is deeply interested inltand has studied everything bearing upon it."
— Boston Transcript.
THE ELECTION OF SENATORS
By Professor George H. Haynes, Author of "Representation in State Legislatures." 300 pp. ;Pi.50net. By mail $1.65 ( Just published)
Shows the historical reasons for the present method, and its effect on the senate and sena- tors, and on state and local government, with a detailed review of the arguments for and against direct election.
THE glLECTION OF SENATORS
GEORGE h5hAYNES, Ph.D.
Professor of Political Science in the Worcester Polytechnic Institute j Author of " Representation in State Legislatures "
NEW YORK
HENRY HOLT AND COMPANY 1906
14 4i^
Copyright, 1906
By
HENRY HOLT AND COMPANY
Published May, 1906
TO
a. X, D.
PREFACE
The present position of the United States Senate is one of strange contradictions. Never before has it been at once so berated and so extolled. The press teems with denunciations of the "usurpations" by which, it is alleged, the Senate has encroached upon the most dis- tinctive powers of the President and of the House, arrogating to itself the appointment of officers and the making of treaties, and taking from the direct repre- sentatives of the people the power of the purse. On the other hand, in these days of centralization and expan- sion, if not of socialism, men of conservative temper find their chief ground for reassurance in the belief that upon the Senate, if upon nothing else, we may rely to restrain the expanding powers of the Executive, and to check the raw haste and partisanship of the rule-ridden House. Between the critics, hostile and friendly, there is one point of agreement: the acknowledgment that the Senate has become the dominant branch of Con- gress, the controlling influence in the government.
Whether the Senate be regarded as the sheet anchor of the republic in the troubled seas of democracy, or as the stronghold of corporate interests — as the coun- try's only safeguard, or as its chief menace — the ques- tion becomes one of paramount importance : how do men come to their membership in this overpowering
vii
viii Preface
body ? That it is a question of no mere academic inter- est is proved by the facts that already thirty-one States — ^more than the two-thirds required by the Constitu- tion— have made formal application to Congress for the submission of an amendment to secure the election of senators by the direct vote of the people, and that the governor of one of the States has been authorized and instructed by the legislature of the present year to con- vene an interstate convention for the sole purpose of furthering this same object.
The present volume aims to make clear the considera- tions which led the f ramers of the Constitution to place the election of senators in the hands of the state legis- latures ; the form and spirit of elections thus made, and the causes which have led to the recent and pressing demand for popular control over the choice of senators. It attempts also to forecast in some degree the probable effectiveness of such popular control, whether exercised under a loose construction of the present law, or in accordance with a constitutional amendment making possible the election of senators by direct popular vote.
The writer's acknowledgments are due to state offi- cials the country over for the courtesy with which they have replied to his many inquiries. He is under especial obligations to five men, who must here be nameless, for the cordiality with which, in the midst of engrossing cares, they have brought to his service their intimate knowledge of the personnel of the Senate. Most of all is he indebted to his wife, to Professor Frank I. Herriott of Drake University, and to Professor W. W. Willoughby of the Johns Hopkins University ; for their fortitude has equaled the task of reading the manu-
Preface ix
script, and to their keen criticism this study owes not a little of whatever merit it may possess.
This book will fall far short of its purpose if it fails to carry the writer's firm conviction that electoral forms and methods are of slight import, except as they affect the spirit of the choice, and that neither the continuance of the present system, nor the resort to popular elec- tion, can long secure the Senate which the best interests of the country demand, unless back of the method there be found the vigilance, the intelligence and the con- science of the individual voter.
G. H. H.
Worcester Polytechnic Institute,
Worcester, Massachusetts. April 18, igo6.
CONTENTS
CHAPTER PAGE
I. How Senators Came to be Elected by State
Legislatures i
II. The Regulation of Senatorial Elections . . ig
III. Some Results of the System of Election . . 36
IV. The Personnel of the Senate .... 71 V. The Movement for the Election of Senators by
THE People 100
VI. Popular Control of Senatorial Elections . . 130 VII. The Argument for Popular Election of Senators 153 VIII. The Argument for Popular Election of Senators
{Continued) 180
IX. The Argument against Popular Election of
Senators 211
X. The Argument against Popular Election of
Senators {Continued) 240
XI. Conclusion 259
APPENDIX I. Resolutions Favoring Popular Election of Senators Passed by the House of Repre- sentatives 271
APPENDIX II. Recommendations of the Pennsylvania
Joint Committee 275
APPENDIX III. Bibliography 277
INDEX 285
zi
THE ELECTION OF SENATORS
CHAPTER I
HOW SENATORS CAME TO BE ELECTED BY STATE LEGISLATURES
The gravest problems which confronted the members of the Federal Convention in 1787 related to the com- position and powers of the law-making body. The record of American legislatures up to this time fur- nished little else than warnings. The Continental Con- gress had exercised mighty powers, so long as the exi- gencies of the war made them necessary ; but, as the end of the struggle drew near, that body had suffered a lamentable decline, both in personnel and influence. When, by the Articles of Confederation, this revolu- tionary legislature was replaced by a congress standing upon a constitutional basis, a few months' experience sufficed to show that the law-making body was ill de- vised, and that, if the new government was to preserve order at home and secure and retain respect abroad, it must be made more thoroughly representative, and its powers must be greatly extended. A scheme for a more effective legislature, therefore, the members of the Fed-
2 The Election of Senators
eral Convention had to devise, and its-jBorms they had to seek either in theory or in the practice of the various American States. Few and of doubtful service were the models suggested by foreign countries, and no prec- edent at all existed for the legislature of a great federal state.
The very first question relating to the structure of the new government, to which the Convention gave its attention, had to do with the make-up of the legislature. Should it consist of one house, or of two? In 1787, it had by no means become an axiom that legislative bodies should be bicameral. Both the Continental Con- gress and the Congress of the Confederation had con- sisted of but a single chamber. In the States, too, re- cent constitution-making — the readiest source of prec- edents— had produced three unicameral legislatures; and, although Georgia and Pennsylvania were on the eve of dividing their legislatures, Vermont was to re- tain the single chamber for half a century. In the Federal Convention, however, it is significant, the plans of government of Randolph and Pinckney, submitted at the very opening of the Convention's work, both pro- vided for a bicameral legislature. And when, on the 31st of May, a resolution was presented that the national legislature ought to consist of two branches, it was agreed to in committee of the whole, without debate or objection, except from the Pennsylvania delegation — opposition that Madison attributed to "complaisance to Dr. Franklin, who was understood to be partial to a single house of legislation." ^
* Like other matters which were to enter into the Constitution, this recommendation of the bicameral legislature was first taken
The Election of Senators 3
On the very day when it was detennined that there should be a second branch of the legislature, debate turned to the question how the members of the upper house should be chosen.^ The state constitutions fur- nished diverse and in a degree contradictory sugges- tions. In general, however, a decided intent to secure in the upper chamber a conservative, if not an aristo- cratic, check upon the popular branch was evident. Qualifications were often prescribed which aimed to
up in the "committee of the whole House to consider the state of the American Union," and later was passed upon formally by the Convention. Despite this agreement, which at the outset virtually committed the framers of the Constitution to approval of the bicameral system, the debates of the Convention show that its members canvassed the various arguments usually advanced in favor of a second chamber. They made much of the need of deliberation, of the danger that might arise from the impulsive- ness of a single chamber, and of the probability of its coming to use its powers autocratically unless it felt the restraint of a potent check in some coordinate chamber. Nor did they fail to cite the precedents in favor of bicameral legislatures afforded by the several States and especially by the British Parliament. Yet, it cannot be doubted that the Convention's prompt accept- ance (on June 21) of the bicameral system by the decisive vote of .seven States to three, was determined hardly so much by theoretical considerations or by historical precedents as by the fact that this form of legislature bade fair to help reconcile the interests of the large and small States.
*The course of the debate upon the election of senators is best to be followed in the History of the Constitution, published by the authority of Congress; in the Journal of the Federal Con- vention, in the fifth volume of Elliot's Debates; or in Gilpin's Papers of James Madison, especially pages 812-821. A brief nar- rative of the discussion upon this question is to be found in Bancroft's History of the United States. Vol. 5. pp. 226-227. A far more painstaking and detailed account of the discussion is presented in William M. Meigs's The Growth of the Constitution in the Federal Convention of 1787, pp. 68-80.
4 The Election of Senators
secure men of more mature age in the Senate than in the House; and several of the States insisted that the senators be men of greater wealth than the representa- tives. New Hampshire and South Carolina had begun by having senators elected by the members of the lower house; but both had given up this method before the Convention met. Maryland sought to secure a higher grade of senators by having them chosen by a special college of electors, selected for that purpose by the people — a device which served as the model for the electoral college provided by the Constitution for the election of President, and for a similar body by which, for a few years, the Kentucky Senate was chosen.
With this slight and unsatisfactory experience before them, the members of the Federal Convention gave careful consideration to four methods of choosing sena- tors. These were : ( i ) appointment by the national executive; (2) election by the people; (3) election by the lower branch of the national legislature; and (4) election by the state legislatures.'
Gouverneur Morris was the chief advocate of the appointment of senators by the President. In order to have them independent, he urged, they should serve for life and without compensation. He deemed it desirable that the Senate be made up of men of great and estab- lished wealth, that thus they might keep down "the turbulency of democracy;" for, he declared, all the guards contrived by America had not restrained the senatorial branches of the state legislatures from ser-
* For the most part, the discussion of the process of electing senators was confined to two or three days, during which it formed the subject of spirited debate — May 31, June 7 and 12.
The Election of Senators 5
vile complaisance to the democratic lower houses. George Read, also, contended that the Senate should be appointed by the executive out of a proper number of persons to be nominated by the state legislatures. But no one else supported this proposal, and Gerry charac- terised it as "a stride toward monarchy that few will think of."
At the other extreme, direct election by the people found an earnest advocate in James Wilson. With great earnestness he insisted that the national Senate ought to be independent, both of the state legislatures and of the first branch of Congress. He urged that men of intelligence and uprightness were most likely to be secured by following New York's method of choosing her state senators ; namely, by uniting several of the election districts for the lower branch into large districts, each of which should elect one senator — a device similar to that which now obtains in the election of the Illinois and Minnesota legislatures. But popu- lar election met with strong opposition. Even in the debate over the method of choosing members of the lower house, Pinckney had asserted that an election of either branch by the people, scattered as they were in many States, particularly in South Carolina, was totally impracticable. Roger Sherman opposed popular elec- tions on more radical grounds. He declared: "The people immediately should have as little to do as may be about the government. They lack information, and are constantly liable to be misled." Gerry, too, asserted that the evils they experienced flowed from the excess of democracy; and he contended repeatedly that "to draw both branches of the legislature from the people
6 The Election of Senators
would leave no security to the latter [the commercial] interest ; the people being chiefly composed of the landed interest, and erroneously supposing that the other inter- ests are adverse to it." In illustrating the people's lack of information and of restraint, both Gerry and Pinck- ney declared that, in their respective States, the minor- ity were in favor of paper money as a legal tender, while the legislatures were opposed to it; and both observers attributed this difference to the fact that the legislatures had "more sense of character and would be restrained by that from injustice." In a test vote, which involved the principle of popular elections, Penn- sylvania, James Wilson's State, alone voted in its favor.
Neither executive appointment nor direct popular election, therefore, proved satisfactory to the members of the Convention. Madison seems to have voiced the prevailing opinion when he declared himself "an advo- cate for the policy of refining the popular appointment by successive filtrations." Admitting that this might be pushed too far, he said that he wished the expedient to be resorted to only in the appointment of the second branch of the legislature, and in the executive and judi- cial branches of the government. Every one of the more elaborate plans of government presented to the Convention proposed some process of indirect election for the Senate. Thus, Hamilton wished the Senate to consist of persons elected to serve during good behavior by electors chosen for that purpose by citizens who had, either in their own right or in that of their wives, an interest of at least fourteen years in landed estate. But to choose a special set of electors seemed a worse than
The Election of Senators 7
useless complicating of the governmental machinery, provided this choice of senators could as well be per- formed by some body of electors already convened. Hence the choice narrowed itself down to one or other of two such bodies, as an electoral college.
The plans of government of both Randolph and Pinckney provided that "the members of the second branch be chosen by those of the first," or, in modern terms, that senators should be selected by members of the House of Representatives, and, as Randolph added, "out of a proper number of persons nominated by the individual legislatures." This last provision was re- tained in committee, by the vote of nine States ; but the whole proposal, for the election of senators by the first branch out of nominations by the state legislatures, was presently rejected by a vote of seven to three, only Massachusetts, Virginia and South Carolina being re- corded in its favor. Indeed, it commanded hardly any support, Gerry expressing the general opinion when he said that it would create a dependence contrary to the end proposed.
Gradually the consensus of opinion settled upon an election of senators by state legislatures. On the very first day of the debate this method had been proposed by Spaight of North Carolina; but this motion was later withdrawn, for equality of state representation had not then been decided upon. James Wilson, the sole advo- cate of direct election by the people, was prompt in his opposition. He insisted that if one branch of Congress should be chosen by the legislatures and the other by the people, the two would rest on different foundations, and that dissensions would arise between them. More-
8 The Election of Senators
over, he held that it was wrong to increase the weight of the state legislatures by making them the electors of the senators; he believed that all interference be- tween the general and the local governments should be obviated as much as possible. He declared that on examination it would be found that the opposition of the States to federal measures had proceeded much more from the officers of the States than from the people at large.
Outspoken opposition to the choice of senators by the state legislatures, it should be noted, therefore, was confined to this one man. On the other hand, hardly any proposition before the Convention brought forward so many members to speak in its favor. There was little heat in the debate; it was simply a testifying to the merits of the scheme by those who believed in it. The original motion was made by John Dickinson on the 7th of June; it was seconded by Roger Sherman. The arguments which it called forth covered a multi- tude of points, but they followed four main lines.
In the first place, it was contended, election by legis- latures would secure a higher grade of senators. It was hoped that this "filtration" of the election through the legislatures — they having, as was asserted, "more sense of character" than the people at large — would give a refinement to the choice; so that, as the author of the original motion put it, the Senate would consist of the most distinguished characters, distinguished for their rank in life and their weight of property, and bearing as strong a resemblance to the British House of Lords as possible. He thought such characters more likely to be selected by state legislatures than by any
The Election of Senators 9
other mode. A number of members, to whom this British model may not have appealed, laid emphasis upon the fact that the people would be less fit judges in a case of this kind, and insisted that legislative elec- tion would be the method best calculated to confer upon the Senate the most desirable qualities of permanence and independence, inasmuch as this mode "would avoid the rivalships and discontents incident to the election by districts." Gerry, the most determined opponent of popular elections, nevertheless favored having the people nominate certain persons from certain districts, out of which number the state legislature should make the appointment.* From the fact that in some States one branch of the legislature was somewhat aristo- cratic, he argued that there would therefore be a far better chance of refinement in the choice.
In the second place, it was contended that the election of senators by the state legislatures would give a more complete, a more effective representation. As Dickin- son urged, the sense of States would be better collected through their governments than immediately from the people at large. Others advocated an election of repre- sentatives by the people and of senators by the States, since by this means the citizens of the States would be represented both individually and collectively. In the legislature, diverse interests would be voiced, and it was felt that the senator, elected thus, would feel himself less the representative of class or of factional interests. It was from this point of view that Gerry
* A recent writer has urged a similar proposal with much force, infra, pp. 149, 150. W. P. Garrison, "The Reform of the Senate," in Atlantic Monthly, Vol. 68, pp. 227-234 (August, 1891).
lo The Election of Senators
contended that the commercial and moneyed interests would be more secure in the hands of the state legis- latures than of the people at large, and Madison in- sisted: "The Senate will seasonably interpose between impetuous counsels, and will guard the minority, who are placed above indigence, against the agrarian at- tempts of an ever-increasing class who labor under all the hardships of life and secretly sigh for a more equal distribution of its blessings." Although Madison ap- proved of a "filtration of the choice" as applied to the Senate,*^ he seems to have had no enthusiasm for elec-
• Inasmuch as, in recent years, advocates of the election of senators by the people have been in the habit of referring to Madison as the advocate of that system in the Convention, it will be well to examine his words with care, for the Convention had no member of more judicial mind or of wider information as to the theories and the practical workings of governments. Madi- son approached the question of the constitution of the Federal Legislature without prejudgment. "The true question," he in- sisted, "was in what mode the best choice would be made." It is true that he was an outspoken advocate of representation ac- cording to population and direct election by the people as ap- plied to the lower house. But, as has been stated, he explicitly declared himself "an advocate for the policy of refining the popular appointment by successive filtrations," and he made ex- press mention of the "second branch of the legislature" as one of the bodies to the appointment of whose members he would have such "filtration" restricted. He accepted choice by state legislatures without enthusiasm. "If an election by the people or through any other channel than the state legislature promised as uncorrupted and impartial a preference of merit, there could surely be no necessity for an appointment by those legislatures. Nor was it apparent that a more useful check would be derived through that channel than through some other." A few days later he said : "It was to be much lamented that we had so little direct experience to guide us. The Constitution of Maryland was the only one that bore any analogy to this part of the plan.
The Election of Senators 1 1
tion by state legislatures; indeed, upon this point he offered pungent criticism : the great evils complained of, he said, were that the state legislatures ran into schemes of paper money, and the like, whenever solicited by the people. Their influence, then, instead of checking a like propensity in the national legislature might be expected to promote it, for nothing could be more con- tradictory than to say that the national legislature, without a proper check, would follow the example of the state legislatures, and, in the same breath, that the state legislatures were the only proper check, James Wilson spoke in similar vein, and received no answer, when he asked : "If the legislatures, as was now com- plained, sacrificed the commercial to the landed interest, what reason was there to expect such a choice from them as would defeat their own views ?"
It was also hoped that the different modes of repre- sentation in the House and in the Senate would make
In no instance had the Senate of Maryland created just sus- picions from it. In some instances perhaps it may have erred in yielding to the House of Delegates. In every instance of their opposition to the measures of the House of Delegates they had had with them the suffrages of the most enlightened and im- partial people of the other States as well as of their own. In the States where the senates were chosen in the same manner as the other branch of the legislatures, and held their seats for four years, the institution was found to be no check whatever against the instability of the other branches."
It is clear, therefore, that Madison felt convinced that, for the upper branch of Congress, election by state legislatures gave promise of the best results attainable, and that he supported his view by the sole available American precedent ; while, on the other hand, he cited the prevalent experience of state legislatures to prove that the chief advantage of an upper house would be lost if it should be chosen in the same way as the lower, i.e., by the direct vote of the people.
12 The Election of Senators
them serve as a mutual check. In defending^ the Con- stitution before the South Carolina convention, Pinck- ney laid strong- emphasis upon this point. The House of Representatives, he insisted, would be elected imme- diately by the people and would represent them and their personal rights individually ; the Senate would be elected by the state legislatures and represent the States in their political capacity; and thus each branch would form a proper and independent check upon the other, and the legislative power would be advantageously balanced.
Moreover, it was felt that choice by the legislatures would be of beneficial effect upon the relations between the state governments and the national government. In seconding the proposal for legislative election of senators, Sherman admitted that national and state governments ought to have separate and distinct juris- dictions, but he insisted that they ought to have a mutual interest in supporting each other; and he be- lieved that by this method of choosing senators the par- ticular States would thus become interested to support the national government, and that a due harmony be- tween the two governments would be maintained.' Furthermore, it was urged by Colonel Mason ' that,
• On the other hand, Read declared : "Too much attachment is betrayed to the state governments. We must look beyond their continuance, as the national government must soon of neces- sity swallow them all up. They will soon be reduced to the mere office of electing the national Senate."
^ Under date of June 7, 1787, Rufus King quotes George Mason as follows : "We have agreed that the national govern- ment shall have a negative in the acts of the state legislatures; the danger now is that the national Legislature will swallow up legislatures of the States. The protection from this occur-
The Election of Senators i 3
as in every other department there had been studious endeavor to provide for its self-defense, so "the state legislatures ought to have some means of defending themselves against the encroachments of the national government. And what better means can we provide than the giving them some share in, or rather to make them a constituent part of the national establishment?" * Finally, it was felt that not only would the legislatures, if excluded from a participation in the national gov- ernment, be more jealous and more ready to thwart it, but also — a most timely and important consideration — that they would be less likely to promote the adoption of the new Constitution."
When, after protracted discussion in committee of the whole, the vote was taken upon the motion for elec- tion of the Senate by the state legislatures, ten States voted in its favor and not a single one recorded itself
rence will be the securing to the state legislatures the choice of the senators of the United States." — Life and Correspondence of Rufus King, Vol. i, p. 597.
' Inasmuch as Mason has frequently been quoted as an advo- cate of the popular election of senators in the Convention this argument of his should be particularly noted. Like Madison, he advocated direct popular election of representatives, not of senators.
•"It should be remembered, too, that this is the same manner, in which the members of Congress are now appointed ; and that herein, the sovereignties of the States are so intimately involved, that however a renunciation of part of these powers may be de- sired by some of the States, it never will be obtained from the rest of them. Peaceable, fraternal and benevolent as these are, they think the concessions they have made ought to satisfy all." — John Dickinson, Letters of Fabius, No. II.; The Federalist and Oilier Constitutional Papers, edited by E. H. Scott, Vol. 2, p. 784.
1 4 The Election of Senators
in opposition." Some weeks later, however, when the same question was put before the Convention, Penn- sylvania and Virginia voted no ; the other nine States voted aye. This vote was final, ^^ and the result of all this consideration was presently embodied in the Con- stitution in the following words :
•The Senate of the United States shall be composed of two Senators from each State, chosen by the Legis- lature thereof." Art. I., Sec. 3, Par i.
"The Times, Places, and Manner of Holding Elec- tions for Senators and Representatives, shall be pre- scribed 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 chusing Senators." Art. i.. Sec. 4, Par. i.
But the Constitution could be of no effect until it had run the gauntlet of the state ratifying conventions ; and, in these assemblies, opposition of the most radical and persistent character was directed against some features of the proposed frame of government. It is significant, however, that in most of these conventions, as their deliberations are reported in Elliot's Debates, not a word of criticism was directed at the election of senators by the legislatures. In the South Carolina convention, it is true, Mr. Lowndes referred to it as "exceedingly objectionable," and declared that in that State the practice of choosing senators by the lower house had proved so inconvenient and oppressive that in framing the present constitution, great care had been taken to vest the power of electing senators originally
*°June 7. "June 25.
The Election of Senators 1 5
with the people, as the best plan for securing their rights and privileges. In the New York convention, the only question in controversy was whether the state legislatures, by virtue of their right to elect, should also have the right to recall senators. Hamilton vigorously opposed the recognition of any such right, insisting that the main design of the Convention in forming the Senate had been to prevent fluctuations and cabals, and that it was absolutely necessary that the Senate should be so formed as to be unbiased by false con- ceptions of the real interests, or undue attachment to the apparent good of their several States.
Nor was it alone in the conventions, to which its fate was committed, that the Constitution was sharply assailed. No sooner had its provisions been made pub- lic than they became the target of the keenest criticism from the platform, the newspaper and the pamphleteer. Yet in all this mass of contemporary criticism hardly any comment is passed upon the mode of electing sena- tors. The writers of The Federalist set themselves the mighty task of expounding the principles of the Con- stitution and of defending the provisions which seemed least popular or most open to attack. But they felt no need of devoting their energies either to expounding or to defending the sections relating to the election of senators. That subject is referred to but twice. In one of these passages, emphasis is laid upon the grounds for expecting that the Senate would generally be com- posed with peculiar care and judgment, by virtue of its being chosen by such select bodies as were the state leg- islatures.** In another number, either Hamilton or " The Federalist. No. XXVII.
1 6 The Election of Senators
Madison writes: "It is equally unnecessary to dilate upon the appointment of senators by the state legisla- tures. Among the various modes which might have been devised for constituting this branch of the govern- ment, that which has been proposed is probably the most congenial with public opinion. It is recommended by the double advantage of forming a select appointment, and of giving to the state governments such an agency in the foundation of the federal government as must secure the authority of the former, and may form a convenient link between the two systems." "
This may be, as Justice Story characterized it, a very subdued praise, yet in those few words, "probably the most congenial with public opinion," is set forth a fact of the first importance, too much neglected in later dis- cussions— a fact so near at hand and familiar to the members of the Convention that it found no mention in their debates. In recent years some advocates of the election of senators by the people have been wont to condemn in severest terms the distrust of the people shown by the framers of the Constitution, and to refer to the members of the Convention as a group of aristo- crats and reactionaries. History affords scant warrant for such charges. In different centuries democracy seeks for itself different agencies or forms of expres- sion. To most of the soundest thinkers of the last quar- ter of the eighteenth century, for the filling of im- portant offices no agency seemed more normal, no agency was more prevalent, than an election by state legislatures. From current practice, almost as a matter of course, the framers of the Constitution gave this " The Federalist. No. LXII.
The Election of Senators 17
method their approval. It had been by their legislatures that the thirteen Colonies made protest against British oppression, and later prepared for common resistance. Throughout the war it had been the state legislatures which elected the governors and most of the other officers, both civil and military. It was by these same legislatures that the members of the Continental Con- gress were commissioned. Under the Articles of Con- federation, although it was the law that delegates to Congress should be annually appointed in such manner as the legislatures of the states might direct, it was by the legislatures themselves that the delegates still con- tinued to be elected. It was thus, for example, that Thomas Jefferson had been elected to Congress in 1783. Under the state constitutions which had been framed before the meeting of the Convention of 1787, the gov- ernor was elected by the direct vote of the freemen only in New York and in the New England States ; in New Jersey, Maryland, Delaware, Virginia, North Carolina and South Carolina he was elected by the joint ballot of the legislature ; in Pennsylvania, by joint ballot of the assembly and of the executive council ; and in Georgia the election was by the single house of assembly." In the great majority of states the judges
"Charles R. Lingley, The Executive Department under the First American Constitutions, pp. 13-14. Such legislative elec- tions continued for many years. In 1897, Senator Turpie of In- diana declared in the Senate: "Even in my own lifetime I recol- lect being canvassed as a member of the legislature, as the legisla- ture elected circuit judges and the governor, and the State Senate appointed the supreme judges." The election of judges by the legislature still continues in Rhode Island, with results which do little to commend the method.
1 8 The Election of Senators
were elected by the legislatures. Finally, the members of this very Convention had themselves all been elected in this same way by the legislatures of their several States ; their credentials, much like those of a senator of the present day, are to be found in the regular legisla- tive journals. It would have been self-stultification, indeed, had the members of this, the most eminent con- stitutional convention known to history, assented to the proposition that the choice of a Senate by state legis- tures could not give a worthy representation of the people. In the words of Senator Turpie: "The state legislatures during the War for Independence and for some time afterward were the favored and trusted depositories of a variety of delegated powers. It is not strange, therefore, that the part given them in the election of members of the Senate should have attracted little notice, elicited no dissent."
CHAPTER II
THE REGULATION OF SENATORIAL ELECTIONS
Upon the state legislatures, the Constitution con- ferred not only the power of electing- senators, but also the power of determining the places, and, subject to possible regulation by Congress, the times and the man- ner of making the choice. In the Virginia convention, in response to the question why the Constitution did not give Congress the power to regulate the place of electing senators as well as of representatives, Madison replied that in that case Congress might compel the state legislature to elect them in a different place from that of their ordinary sessions, which would produce much inconvenience and was not necessary to the object of regulating the elections; but that it was necessary to give the general government a control over the time and manner of choosing the Senate, to prevent its own dissolution.
For more than seventy-five years, Congress was con- tent to possess this power without assuming its exer- cise. Meantime, the States regulated the matter to suit themselves. In the early years the choice of senators was generally, though not universally, made by con- current vote of the two houses of the legislature in separate session. At a later period, about one-half of the States came to require the election to be made by
19
20 The Election of Senators
a vote in joint convention ; but the weight of constitu- tional authority seems to have been against this prac- tice, on the ground that when the Constitution pre- scribed an election by the legislature, the intent was that that body should perform that function legislatively, as in the passing of any ordinary act, i.e., by concurrent vote.^ One of the chief considerations which commended the election of senators by legislatures to Gerry and others of like mind was their belief that in this form of election the aristocratic upper house would hold in restraint the "turbulency of democracy" in the lower branch — a confidence which they would have recognized as groundless, if it had been expected that the elections would be made in joint session. It might further have been contended that, as this election was a legislative act, it was subject to the veto of the governor ; but uni- versal practice has been against recognizing any such executive participation in the choice of senators.
Yet, insistence upon a concurrent vote led not infre- quently to deadlocks, resulting in a failure to make any election, when the two houses were finder the control of different parties. Senator Fessenden's experience was typical, and significant of the need of federal regu- lation upon this point. Eighteen times, he declared, did the Maine Senate, during a single session of the legislature, elect him to the United States Senate; but the lower house refused to concur, and hence the seat remained vacant throughout that Congress. As time went on, such embarrassments became more frequent. Thus, in the Twenty-seventh Congress, Tennessee had
* This is the view of Justice Story, Commentaries on the Con- stitution, Sees. 705-708.
The Election of Senators 2 1
but one senator, because the two houses of her legislature refused to go into joint convention to elect. California found exceptional difficulty in electing senators. Three times within a period of five years her legislature failed to make an election, 1851, 1855, 1856. A contest in Indiana, a few years later, deserves to be narrated in some detail, as affording the clearest of proof that the absence of uniform regulation of senatorial elections served as a constant temptation to sharp practice for partisan advantage on the part of members of the legis- lature. In the Thirty-fifth Congress, until within three weeks of the end of its last session, Indiana was repre- sented by but one senator. The Congress was to expire on the 3d of March, 1857. On the 4th of February, a minority of the Indiana Senate, which had long been in deadlock with the House over the election, went to the hall of representatives and, there meeting with a majority, but not a legal quorum, of the members of the House, proceeded to ballot for a senator to fill the exist- ing vacancy, and for another to succeed the senator whose term was about to expire. The men, who were declared to be elected as a result of this balloting, forth- with presented themselves in Washington, and their credentials were accepted by the Senate. Formal pro- test, however, was made by a majority of the Indiana Senate and by a large number of the members of the House. It was contended that the joint convention, if such it could be called, which had elected these men, had not been legally summoned, and that it was not competent to elect senators, inasmuch as no Indiana law authorized a joint session of the legislature for any other purpose than the election of governor, in case of
22 The Election of Senators
a tie vote. As the United States Senate did not reverse its decision, at the next session the Indiana legislature, which had meantime become Republican in both branches, treated the seats as vacant, and proceeded by concurrent vote to elect two men to fill the alleged vacancies. The committee to which the case of these new contestants was referred reported in favor of their exclusion, and laid down the rule that the legislature of a State possessed no authority to revise the decision of the Senate under its unquestioned and undoubted con- stitutional authority to judge of the qualifications of its own members. While this case was still pending, Simon Cameron's election was contested, on the ground that there had not been a concurrent majority of each house in his favor; but the Senate committee reported that this ground of protest was untenable under the statute of Pennsylvania, and "the uniform practical construction of the Federal Constitution for the last half-century."
With a view to avoiding such annoying contests by removing their cause, less than three weeks after the questionable Indiana election, above described, a bill was brought into the Senate "to prescribe the time and manner of electing senators in Congress, and the form of their credentials." This was referred to the com- mittee on the judiciary, and was heard from no more. To the same committee, the following year, was referred a similar bill, which was duly reported back with an amendment in the nature of a substitute; but to this the Senate gave no consideration. For the next five years Congress was too much occupied with weightier matters to attend to this proposed change; but no
The Election of Senators 23
sooner was the war at an end than troublesome ques- tions in regard to senatorial elections were again thrust upon its notice. Thus, in 1866, the election of Mr. Stockton of New Jersey was challenged on the ground that the joint assembly which elected him had exceeded its powers in declaring that the candidate receiving a plurality of votes should be elected. By a vote of 22 to 21 — Mr. Stockton himself voting — the Senate sustained its committee's report that, for the purpose of electing senators, the joint assembly was the legislature, and hence entitled to lay down the plurality rule. Three days later, however, this action was reconsidered: the Senate decided that the contestant's vote should not be received in determining the question as to his own seat, and upon the next vote he was unseated. This typical case, suggestive of the host of perplexing questions sure to arise so long as no uniform regulation of the manner of senatorial elections was provided, and sure to be decided by the Senate only with many heart-burnings and many anxious forecasts of party advantage — seems to have exhausted the patience of Congress. Forth- with, the Senate instructed its committee on the judi- ciary to inquire into the expediency of providing a uni- form and effective mode of securing the election of sen- ators by the legislatures; and, on the 9th of July, 1866, there was reported from the committee a bill to regu- late the times and manner for holding senatorial elections.'
In brief, the bill provided that on the first Tuesday
* Mr. Blaine declared that the direct fruit of the Stockton con- troversy was the law of 1886, whereby Congress regulated the election of senators. To this he attached great significance: 'The exercise of this power was the natural result of the situation
24 The Election of Senators
after the meeting and organization of a legislature, when a senator is to be elected, the two houses shall meet separately, and by a viva voce vote name a person for senator. On the following day, the two houses shall meet in joint assembly and the results of the vot- ing shall be canvassed. If each house has given a majority vote to the same man, he is elected; if not, "the joint assembly shall meet at twelve o'clock, meridian, of each succeeding day during the session of the legislature, and take at least one vote until a sena- tor shall be elected." The advocates of this measure laid much stress upon the fact that public interest re- quires that each State be fully represented in the Sen- ate, and hence a law should be framed which would have regard to the habits and predilections of the sev- eral States so far as possible, but would, at the same time, insure a complete representation from the States through some uniform system of election.
Senator Sherman declared that he saw in past experi- ence little to prove the need of the exercise by Congress of its unquestioned right to regulate senatorial elections. The only outspoken opposition to the principle of the measure, however, came from Senator Saulsbury of Delaware, who denounced it as a deplorable interfer-
in which the nation was placed by the war. Previous to the Civil War every power was withheld from the national government which could by any possibility be exercised by the state govern- ment. Another theory and another practice were now to pre- vail; for it had been demonstrated to the thoughtful statesmen who then controlled the government that everything which may be done by either nation or state may be better and more securely done by the nation. The change was important, and led to far-reaching consequences." — ^James G. Blaine, Twenty Years of Congress, Vol. 2, p. 160,
The Election of Senators 25
ence by the federal government in state affairs where no inconvenience in the past had called for any such regulation. Recent Delaware history lends peculiar interest to the further remarks of this Delaware sena- tor. "It may be true," said he, "that sometimes legis- latures have failed to elect, but very seldom, and I do not know that there has been any great inconvenience. If they had failed to elect a little oftener, perhaps it would have been for the public good, but certainly the legislation of the country has not suffered owing to this fact." '
Upon three matters of detail there were sharp differ- ences of opinion. One of these was whether the voting for senators should be viva voce or by secret ballot. The bill provided that the members of the legislature should give their votes viva voce, but some of the most influential senators opposed the open vote. As Senator Fessenden said, the viva voce vote was liable to put men under restraints from party discipline which would lead them to act against their conscientious convictions. Further objection was made that this was an unneces- sary insistence upon uniformity ; that it would be offen- sive to the States which had given up the open vote ; and that the ballot was the more free and unembarrassed mode of voting. Senator Saulsbury asked : "Is it pos- sible that we can persuade ourselves that the people who send a representative to the state legislature do not know for what particular man that representative votes, whether the vote be by ballot or viva voce?" Yet, hav- ing thus argued that the ballot should not be precluded
• In regard to later Delaware vacancies in the Senate, infra, p. 60, 62, 63, 195.
26 The Election of Senators
since the legislator's vote would be known anyway, almost in the same breath he opposed the open vote as exposing the legislator to the view of those to whom he might be under — it may be — pecuniary obligations, who would thus hold the rod over him — a suggestion sur- prisingly prophetic of Delaware senatorial elections of the present day. On the other hand, it was argued that the viva voce vote was largely in use, particularly in the Western States. Several senators, like Daniel Clark and Charles Sumner, who advocated the use of the secret ballot in all ordinary elections, laid emphasis upon the fact that the legislator, in voting for senator, acts in a representative capacity ; his constituents may even have given him specific instructions, and it is, therefore, their right to know for whom he votes. These considera- tions prevailed, and the open vote was retained.*
Should the election be by concurrent or by joint vote? The Constitution, as has been observed, prescribed only that the election of the senators should be by the legis- latures. It was the contention of Chancellor Kent that the true interpretation of his phrase called for a vote by the two houses, acting in their separate and organ- ized capacities, with the ordinary constitutional right of negative on each other's proceedings.^ But with the
* Wisconsin has not only followed the example of the federal law, but has gone a step further. By a law of 1899 it is re- quired that in any legislative caucus for the nomination of a candidate for United States senator, each member shall vote viva voce upon a call of the roll, and such votes shall be entered upon the minutes of the caucus.
' Kent's Commentaries, Pt. 2, Lee. XI., pp. 225-6. He cites the Federal Farmer, Letter XIL, as affording a contemporary exposi- tion upholding this view.
The Election of Senators 27
framers of this law of 1866 practical considerations had great weight, and, despite the high authority upon which it rested, led to the rejection of this interpreta- tion of the Constitution. In order to lessen the chances of a failure to elect, as in the Indiana experience of 1857, it was felt that some provision must be made for a joint vote ; yet, out of deference to the predilections for a concurrent vote — as a concession, it is said, to the practice in New York and in New England — the law was made to provide that the first vote should be taken by the two houses separately, with a resort to a joint convention, in case the concurrent vote failed to elect. Several senators, particularly Senator Sherman, pro- tested against this preliminary separate vote. They asserted that since all later voting was to be done by joint assembly, nothing was to be gained by following a different method in the first vote ; on the other hand, by disclosing the preference of each member and the difference between the two houses, it would show at the very outset how easy it might be for a small minor- ity to prevent, if it could not control, the election. In spite of these protests, this feature of the bill remained unchanged; but experience has proved that the objec- tions were well grounded.
To what extent should the senatorial election be allowed to delay legislation? As originally reported, the bill provided : "the joint assembly shall continue to vote for senator, without interruption by other busi- ness, until a senator is elected." Against this Senator Sherman and others made vigorous protest. They in- sisted that, with this power to block all state legisla- tion at its command, a small factional minority would
28 The Election of Senators
hold out until it forced the majority to yield to its de- mands. On the other hand, Senator Clark, who reported the bill from the committee, declared: "I do not believe it would occur once in a hundred years that any third party would stand out in the way the Senator from Ohio sugg^ests, and thus prevent the ordinary legislation of the State." Experience certainly has left no doubt as to whether the Senator from New Hamp- shire or the Senator from Ohio had the clearer compre- hension of political tendencies. Yet other senators did not hesitate to go still further. Senator Johnson de- clared that it was infinitely a higher duty upon the part of the States and the members of the legislatures of the several States to elect senators of the United States — the government of the United States being important to all the States — than it was to go on with ordinary legislation. Hence, he believed heartily in stopping the wheels of state legislation till that duty was performed, and he felt that depriving the State of power to make its own laws was not a disproportionate penalty. But more practical counsels prevailed, and this clause was amended so that, instead of putting an absolute stop to all state legislative business until an election should be secured, it provided for at least one vote daily by the legislature in joint session until a senator should be elected. The bill was further criticised because it did not allow election by plurality, and because, by virtue of the different terms of the legislatures, in some States they would be compelled to elect a senator at least fif- teen or eighteen months before a vacancy was to occur, a procedure which at times might yield very unsatis-
The Election of Senators 29
factory results.* These provisions, however, remained unchanged.
In the Senate, the discussion of this important meas- ure occupied but a single day. Senator Saulsbury's opposition was unremitting, up to the very end. As the bill was about to be put to vote upon its final pass- age, the Senator from Delaware took the floor and said : "I have heard an eminent physician say that the best thing to do with cucumbers was to dress them well with vinegar, pepper, salt and mustard, and then throw them to the hogs. I think the best thing to do with this bill is to indefinitely postpone it, and I therefore move that it be indefinitely postponed." But the motion was not agreed to; and the bill was forthwith passed by a vote of 25 to 1 1. In the House it was passed under the operation of the previous question without a word of debate, although some attempt was made by repre- sentatives from Iowa and Kentucky to block it by motions to lay it upon the table, and to adjourn. The bill became a law July 25, 1866, more than half a cen- tury after Congress had entertained the first proposi- tion for the regulation of the election of senators.^
Much that was expected from this law it has failed to accomplish. It cannot be said that it has had any considerable effect in discouraging deadlocks, or in pre- venting vacancies in the Senate. Indeed, whether be- cause of the law or in spite of the law, both of these
• Infra, p. 128.
^ The first bill with this object was introduced in 1814. The law of 1866 is to be found on p. 34. For the proceedings and debate in connection with this bill, see Journal of the Senate, July II, and House Journal, July 23, 1866; and Congressional Globe, Thirty-ninth Congress, First Session.
30 The Election of Senators
evils have been on the increase since its passage.* Nor in the mere matter of prescribing a uniform elective procedure has it proved entirely satisfactory. In 1883, the passage of an amendment was urged which should provide a form of certificate giving in great particular- ity the record of the election in the legislature. The man who introduced this measure declared that there had been great laxness in this matter, and that of the senators chosen at the last preceding election, one-half did not have certificates which would stand the test under the existing law, if objection were made. But the bill was reported adversely, the committee de- claring that under existing law a recital by the gov- ernor of the State that the person named for senator was legally elected was all that was required. A few years later, a committee was instructed to consider the expediency of prescribing a form of credential for the guidance of the executives of the several States, but no report was made. In 1888, a memorial from the Iowa legislature was presented urging Congress to remove an ambiguity in the law by making it provide more specifically that the first vote for senator be taken on the second Tuesday after the "permanent" organization of the legislature. This memorial was referred to the committee on the judiciary, to which divers other pro- posals of change have been referred, and from which they have never emerged. The law still retains its original form, in spite of the fact that in recent years more than one writer has strongly advocated giving back to the States the power to regulate elections, thus taken from them. Particular condemnation has been 'Infra, pp. 36-38, 69, 70.
The Election of Senators 3 1
visited upon its "pernicious enforcement of viva voce voting, most favorable to party pressure and bribery ;" and it has been insisted that the objections urged by the senators in 1866 have been abundantly sustained by experience."
Inasmuch as Congress has now exercised its power of regulating senatorial elections, it remains to ask whether the States may still in any respect limit or restrict the election. Doubtless in every one of the older States, upon this point there has grown up a custom of the Constitution, even if it has not found embodiment in positive law. There are understandings which are always observed, precedents which are always followed. For example, there is a feeling in most States that the two senators ought to be residents of different sections of the State, in order that they may represent it most effectively. Occasionally this is disregarded — indeed, in recent Congresses the senators from Indiana have been both residents of the same city ; but this is a rare exception. In Vermont, unvarying precedent requires that one senator shall have resided on the east side of the Green Mountains and the other on the west side. In all her history as a State it is said that this custom has never once been violated. Maryland did not trust her restraints to custom, but, for many years, attempted to bind her legislatures in the choice of senator by the provisions of statute law. As early as 1809 it was enacted : "One of the senators shall always be an inhab- itant of the eastern shore and the other of the western shore." The results of such restrictions can hardly fail to be both absurd and injurious. They limit the •W. P. Garrison, in The Nation, Vol. 54, p. 44 (Jan. 21, 1892).
32 The Election of Senators
range of choice, and often deprive the State of the ser- vice of some of its most distinguished men ; they block political careers of great promise, and deter many useful men from entering political life. In electing members of the House, the loss to the country from servile ad- herence to the custom that representatives must come from single-member districts, and each be a member of his district, has been incalculable ; and any rigid con- formity to a like custom in regard to the election of senators is greatly to be deplored. The workings of the Maryland law^ are instructive. The eastern shore had less than one-sixth of the population of the State ; yet in the existing stage of American political develop- ment, if it could be assured of one of the two senators, it might count with confidence upon a very large share of federal patronage. Hence, the eastern shore's per- tinacious resistance to every effort for the repeal of the law — a thing desired, it was said, by both parties, since both had felt its embarrassments. When, in 1867, the dominant party wished to elect to the Senate one of the State's most eminent citizens, who had the misfortune to live on the wrong side of the Chesapeake Bay, this ancient statute was bodily repealed ; but, as soon as that exigency was passed, it was promptly reenacted. Sub- sequently, in the election of a senator, the legislature set the law frankly at defiance. To retain upon the statute book a law which is to be obeyed, violated or repealed, as may chance in any given year to serve the interests of the party then in power, both marks and encourages a low standard of political morality. Yet, not until 1896 did this restriction finally disappear. To such geographical restrictions as these it might
The Election of Senators 33
be objected not only that they are inexpedient, but that they are unconstitutional, since they are of the nature of a qualification for membership in the Senate, whereas, in repeated instances, the doctrine has been affirmed that "no State by statute or otherwise may add qualifications for a senator not prescribed in the Constitution." "
For nearly two score years the law of 1866 has regu- lated the election of senators. Under it, every other year, thirty senators are chosen; yet the precise pro- cedure seems to be but little understood. Thus, so reliable and well-informed a journal as the Springfield Republican described what took place in the Rhode Island Assembly, January 17, 1905, as follows : "Nelson W. Aldrich was nominated by both houses of the State General Assembly for a fifth term at Providence by the Republicans, and National Committeeman George W. Greene by the Democrats. The nominating vote was . . ." What really took place was not the nomination of Aldrich, but his election. On the other hand, that same day the papers the country over pro- claimed that in Missouri, Thomas K. Niedringhaus was elected, he having received a majority of the total num- ber of votes cast in both houses of the legislature. But what the law requires on this first vote is "a major- ity of all the votes in each house." If that is secur^J the election is made, and nothing remains for the joint assembly upon the following day but the formal veri-
"Case of Judge Trumbull of Illinois, 1855; case of Faulkner of West Virginia, 1888. See Taft, Contested Senate Election Cases (1903). For data in regard to elections in Vermont and Maryland, see J. H. Flagg, "The Choice of United States Sena- tors," in New England Magazine, Vol. 14, pp. 190-194.
34 The Election of Senators
fication of the record of each house, and the announce- ment of the result. If, however, no candidate secures such a majority of votes in each house, the task of electing^ the senator passes forever from the hands of the separate houses as such, and devolves upon the joint assembly. Thus, although in the separate vote Niedringhaus secured a clear majority of eight votes above all other candidates, it availed him nothing, for his supporters had not mustered a majority in the Senate; and, after the election was thrown into the joint assembly, in the sixty days of the deadlock he could not secure a majority.
THE LAW REGULATING THE ELECTION OF SENATORS. (1866.)"
An Act to regulate the Times and Manner of holding Elections for Senators in Congress.
Be it enacted . . . , That the legislature of each State which shall be chosen next preceding the expira- tion of the time for which any senator was elected to represent said State in Congress, shall, on the second Tuesday after the meeting and organization thereof, proceed to elect a senator in Congress, in the place of such senator so going out of office, in the following manner : Each house shall openly, by a viva voce (vote) of each member present, name one person for senator in Congress from said State, and the name of the person so voted for, who shall have a majority of the whole number of votes cast in each house shall be entered on the journal of each house by the clerk or secretary thereof; but if either house shall fail to give such majority to any person on said day, that fact shall be entered on the journal. At 12 o'clock, meridian, of " United States Statutes at Large, Vol. 14, pp. 243-444.
The Election of Senators 35
the day following that on which proceedings are re- quired to take place, as aforesaid, the members of the two houses shall convene in joint assembly and the journal of each house shall then be read, and if the same person shall have received a majority of all the votes in each house, or if either house shall have failed to take proceedings as required by this act, the joint assembly shall then proceed to choose, by a viva voce vote of each member present, a person for the purpose aforesaid, and the person having the majority of all the votes of the said joint assembly, a majority of all the members elected to both houses being present and voting, shall be declared duly elected; and in case no person shall receive such a majority on the first day, the joint assembly shall meet at twelve o'clock, meridian, of each succeeding day during the session of the legislature, and take at least one vote until a sena- tor shall be elected.
Sec. 2. And be it further enacted. That whenever, on the meeting of the legislature of any State, a vacancy shall exist in the representation of such State in the Senate of the United States, said legislature shall pro- ceed, on the second Tuesday after tlie commencement and organization of its session, to elect a person to fill such vacancy, in the manner hereinbefore provided for the election of a senator for a full term ; and if a va- cancy shall happen during the session of the legislature, then on the second Tuesday after the legislature shall have been organized and shall have notice of such vacancy.
Sec. 3. And be it further enacted, That it shall be the duty of the governor of the State from which any senator shall have been chosen as aforesaid to certify his election, under the seal of the State, to the president of the Senate of the United States, which certificate shall be countersigned by the secretary of state of the State.
Approved, July 25, 1866.
CHAPTER III
SOME RESULTS OF THE SYSTEM OF ELECTION
After long deliberation, the Federal Convention de- termined that, in the Senate, there should be equality of representation, and that senators should be elected by the legislatures of the several States. Eighty years later, by the law of 1866, Congress prescribed the mode of the election. An elaborate piece of political ma- chinery has thus been designed, improved and set in operation. How has it worked?
A. DEADLOCKS IN SENATORIAL ELECTIONS.
In the first place, what is to be said of its reliability? In the debates of the Convention there is no hint of any suspicion that elections of senators would ever fail to be made promptly. Apparently, the extensive experience with elections by legislatures, which led to its ready adoption for the choice of senators, had been free from bitter and prolonged contests. Political parties were as yet in their infancy: their fierce and all-en- grossing conflicts none could foresee. Even eighty years later, when the form of regulation to be prescribed by Congress was under discussion, Senator Clark, who reported the present measure from committee, seemed to think that the deadlocks of recent years had been due
36
The Election of Senators 37
merely to the fact that the two houses of a state legisla- ture were not compelled by federal law to meet in joint assembly and thus end their controversies. Accord- ingly, the present law was enacted. With what result? The extent of this law's failure to remove the evil at which it was chiefly directed, may be seen from the record of deadlocks in the elections of the past fifteen years : ^
*The term "deadlock" implies a prolonged and stubborn con- test. If it be objected that some of these contests were not long enough to deserve a place in the list, the reply is that no con- test has been listed here which was not so bitter and unyielding that its only issue could be, either the preventing of any election, or the choice of a senator who would win his high office not be- cause of any preeminent qualifications, but because he chanced to be found possessed of such qualities that the hostile and dis- appointed factions in the joint assembly could be reorganized under his banner and led to victory. For it goes without say- ing, that the man, for whom in the last ten minutes of a legis- lature's term, it is easiest to stampede the angry mob of members, worn out by weeks — it may be, months — of fighting, is not by that fact proved to be the ideal choice for a senator of the United States. The length of the deadlocks has here been reck- oned in calendar days from the date on which the two houses balloted separately till the date of the final vote of the contest. In this way, alone, could uniformity in presentation be secured ; for it is obviously impossible to ascertain upon precisely how many days between those two limits, the individual legislatures were actually in session. But, on each of those days, in accordance with the law of 1866, at least one vote for senator had to be taken.
The data for the table were obtained from Appleton's An- nual Cyclopcedia, and from the New York Tribune Almanac. In cases of conflict or of doubt, reference was made to the files of journals of the several state legislatures in the Massachusetts State Library, and to newspapers of the given State. Many points have been determined by correspondence with the sec- retaries of the several States in question.
38
The Election of Senators
RECORD OF DEADLOCKS.
|
Date. |
State No. |
of Days. |
Ballots. |
Senator Elected. |
|
189I. |
Florida. |
35 |
*c.75 |
Wilkinson Call. |
|
North Dakota. |
3 |
17 |
H. C. Hansbrouj |
|
|
South Dakota. |
27 |
40 |
J. H. Kyle. |
|
|
1892. |
Louisiana. |
44 |
No election. |
|
|
1893. |
Montana. |
50 |
44 |
No election. |
|
Nebraska. |
21 |
17 |
W. V. Allen. |
|
|
North Dakota |
33 |
61 |
W. N. Roach. |
|
|
Washington. |
SI |
lOI |
No election. |
|
|
Wyoming. |
No election. |
|||
|
1895. |
Delaware. |
114 |
217 |
No election. |
|
Idaho. • |
51 |
52 |
G. L. Shoup, |
|
|
Oregon. |
32 |
58 |
G. W. McBride. |
|
|
Washington. |
9 |
28 |
J. L. Wilson. |
|
|
1896. |
Kentucky. |
58 |
52 |
No election. |
|
Louisiana. |
9 |
6 |
S. D. McEnery. |
|
|
Maryland. |
8 |
7 |
G. L. Wellington, |
|
|
1897. |
Florida. |
24 |
♦c.45 |
S. R. Mallory. |
|
Idaho. |
15 |
Henry Heitfelt. |
||
|
Kentucky. |
36 |
60 |
W. J. Deboe. |
|
|
Oregon. |
53 |
t- |
No election. |
|
|
South Dakota. |
29 |
27 |
J. H. Kyle. |
|
|
Utah. |
17 |
53 |
J. L. Rawlins. |
|
|
Washington. |
7 |
25 |
George Turner. |
|
|
1898. |
Maryland. |
7 |
10 |
L. E. McComas. |
|
Tennessee. |
7 |
7 |
T. B. Turley. |
|
|
1899. |
California. |
67 |
104 |
No election. |
|
Delaware. |
64 |
113 |
No election. |
|
|
Montana. |
17 |
17 |
W. A. Clark. |
|
|
Nebraska. |
50 |
43 |
M. L. Hayward. |
* Number estimated by Secretary of State.
t No ballot was possible (infra, pp. 68, n. 10; 193).
The Election of Senators 39
|
Date. |
State. No. of Days. |
Ballots. |
Senator Elected. |
|
|
1899. |
Pennsylvania. |
92 |
79 |
No election. |
|
Utah. |
52 |
164 |
No election. |
|
|
Wisconsin. |
8 |
6 |
J. V. Quarles. |
|
|
I90I. |
Delaware. |
52 |
46 |
No election. |
|
Delaware. |
52 |
46 |
No election. |
|
|
Montana. |
51 |
66 |
Paris Gibson. |
|
|
Nebraska. |
72 |
54 |
C. H. Dietrich. |
|
|
Nebraska. |
72 |
54 |
J. H. Millard. |
|
|
Oregon. |
22 |
53 |
J. H. Mitchell. |
|
|
1903. |
Delaware. |
41 |
36 |
J. F. Allee. |
|
Delaware. |
41 |
36 |
L. H. Ball. |
|
|
North Carolina. |
ID |
9 |
L. S. Overman. |
|
|
Oregon. |
32 |
42 |
C. W. Fulton. |
|
|
Washington. |
9 |
13 |
Levi Ankeny. |
|
|
1904. |
Maryland. |
16 |
12 |
Isidor Rayner. |
|
1905. |
Delaware. |
80 |
51 |
No election. |
|
Missouri. |
60 |
67 |
William Warner. |
But statistics such as these can give nothing more than a hint of the stubbornness and acrimony of these contests; while many of the most important features they fail entirely to reveal. Thus, a table such as this can take no account of the extent to which the party caucus often dominates the whole situation. In most States, the legislative caucus is entirely unknown to the law; it meets behind closed doors; its proceedings are not a matter of record. Reports may leak into the newspapers, but they are not authoritative, and soon pass out of mind. If the real facts of the caucus pro- ceedings could be gotten at, some interesting and highly significant sections would be added to the history of legislative deadlocks. In the first place, it would be shown that many an election which, in later years, the mere reader of legislative journals would record as decided upon the first ballot by a majority so over-
40 The Election of Senators
whelming as to indicate great unanimity in the choice, was, as a matter of fact, preceded by an ante-election campaign so long and so fiercely fought as to present the successful candidate not at all in the light of the deliberate and imperative choice of a majority of the members of the legislature, still less of the people, but, rather, as the man whom the chance of the moment had brought into prominence, or, it may be, as the adroit manipulator of men, whose victory was won by tactics which find no recognition in the rules of civi- lized political warfare. The real campaign began weeks or even months before the legislature was convened. Moreover, the law of 1866, by requiring that the first vote shall be taken on the second Tuesday after the meeting and organization of the legislature, provides that a period of from six to thirteen days must elapse before the first step in the formal election can take place. During this time, the members are convened at the capital and are open to persuasion of one sort and another, from the managers of the rival aspirants. Thus, to choose from many instances, in Alabama in 1 89 1, Senator Pugh was elected on the second ballot, but his nomination had been secured only after thirty- one votes had been taken in caucus. So, too, in the Ohio election of 1898, Senator Hanna was chosen on the very first joint ballot, but the approaching senatorial contest had dominated all other issues in the election of the legislature, while, in the intervening time after the legislature came together, and before the voting could begin, excitement reached the highest point, and per- sistent charges of bribery were made and investigated with irreconcilable testimony as the result.
The Election of Senators 4 1
Such contests as these can find no mention in a table of legislative deadlocks, for the reason that the prompt election by the legislature gives no hint of the struggle that has gone before. But there have been many other contests where it is no less true that, furious and long- continued as was the conflict in the joint assembly of the legislature, it was but stage-play until the real fight in the caucus behind the scenes had settled all the lines of the campaign, sorted out the champions, and virtually decided who the victor should be. In Kentucky, in
1890, the votes of the Democratic members were by prior and explicit arrangement "scattered" until a nomi- nation by caucus solidified them. That in Florida, in
1 89 1, the election was not effected till thirty-five days after the legislature began to ballot, is not hard to understand when it is known that at an early session of the Democratic caucus a resolution had been unani- mously adopted that a committee should be appointed so to divide the vote as to prevent an election till the joint caucus should make a nomination. After the eighty-sixth fruitless ballot, the caucus at last re- nounced its task as hopeless. The very next day, freed from this restraint, the legislature elected Senator Call. Indeed, the legislative caucus, like the national House of Representatives, often finds itself hopelessly bound by its own rules. For example, the double dead- lock in Nebraska in 1901 was mainly due to the rule, made by the Republican caucus, that seventy-six out of the eighty-four votes in the caucus should be nec- essary for a nomination — a rule so tight-drawn that the chief officers of the national Republican committee urged its relaxation, so as to make
42 The Election of Senators
possible a binding nomination by a majority or by a two-thirds vote of the caucus. In Florida, in 1897, on none of the twenty-four ballots in the joint assembly between April 20 and May 14, had Mr. Mallory re- ceived more than a single vote, but at a caucus, at two o'clock of the morning of the latter day, the leader of one of the factions was induced to withdraw, and Mal- lory was made the unanimous choice of those present. When the joint assembly was convened a few hours later, he was straightway elected, "the announcement of the result," so runs the report, "being followed by the wildest disorder." The next year, the caucus of Democratic members of the Tennessee legislature had already balloted eighty-six times for a candidate for senator, before the formal voting began in the joint assembly. It was not until the 145th ballot in the caucus that Mr. Turley was nominated ; yet, the oflficial record of the legislature merely shows that he was elected on the seventh ballot, and gives no hint of the bitter conflict which had made his triumph possible. In North Carolina, 1903, the election was effected upon the ninth ballot, but not until caucus action had focused the vote ; for upon the first ballot in the legislature the Democrats scattered their votes among eighty-five can- didates, and, after the deadlock had continued for a week, seventy-eight candidates were still voted for in a single ballot. Meantime, the caucus had not been idle, and the night following the vote last mentioned, upon the sixty-first ballot in caucus, Overman was nomi- nated. The next day the president of the Senate de- clared in the joint assembly that nominations for United States senator were in order; whereupon, the single
The Election of Senators 43
nomination of Mr. Overman was made, and the nomi- nee was forthwith elected by a vote of 138 to 21 cast for a single opponent, a performance which in fact, though not in law, amounted to nothing else than a ceremonious announcement of a victory already won behind the scenes. But the extent to which what pur- ports to be a senatorial election may be reduced to stage- play is best of all illustrated by a Louisiana experience. Inasmuch as the term of the legislature of that State is four years, it devolved upon men elected in April, 1892, to choose a senator for a seat which was not to become vacant for nearly three years (March 3, 1895). The balloting in the joint assembly had already been going on for more than a month when, on the 27th of June, a Democratic caucus decided to postpone the elec- tion of the senator until the next year, but to ballot daily — as, indeed, the law of 1866 specifically required them to do — until the end of the session. For the remainder of the session, therefore, the fight was as that of one that beateth the air. In the aimless ballots from twenty-nine to forty-six candidates were voted for, but, of course, there was no election. In the final ballot, not less than thirty candidates received the doubtful compliment of a vote, one member signifying his appreciation of how significant this performance was by giving his vote for Grover Cleveland ! It would be easy to extend almost indefinitely the list of illus- trations of the fact that, under the law of 1866, it is possible for an entirely extra-legal organization not only to put obstructions in the way of the election, but to reduce the voting to a mere farce, and to postpone the election from year to year.
44 The Election of Senators
If no candidate receives a majority in each house, at the first vote, the law requires that at least one vote be taken on each succeeding day of the session until a senator is elected. But the statement that, in a dead- lock lasting through thirty-two days, there were fifty- eight ballots taken, as in Oregon in 1893, might give the impression of leisurely voting and of final choice reached with careful weighing of the merits of the possi- ble candidates. For a correct understanding of the situation, it must be added that the candidate who was successful by a majority of one in the fifty-eighth and final ballot had not even been nominated until just fif- teen minutes before the time when the term of the legislature must expire. Nor is this stampeding of the assembly a matter of rare occurrence. Frequently, and in many States, the final vote has been taken but a few moments before the end of the session. To make no present mention of the instances where no election was effected, on two other occasions (1901 and 1903) an Oregon senator has been elected in the closing hour of the session. In Nebraska, in 1901, neither of the two vacancies had been filled until the last day of the ses- sion's life. In the same year the clock in the hall of the Montana Assembly still testified that it was not yet midnight; but it was 3.30 a.m. before the legislature — whose term, but for the legal fiction, had already expired — was stampeded into electing a man who, up to that moment, had hardly been given a serious thought as a candidate. In Delaware, in 1903, the double dead- lock was not broken till the very end of the session. In the Missouri election of 1905, although one of the can- didates received a majority of the total number of votes
The Election of Senators 45
cast in tlie two houses separately, and was thereupon all too promptly congratulated by the President of the United States, he failed to secure a majority upon the first vote in the joint assembly, and not until sixty days later, within ten minutes of the time set for the final adjournment of the general assembly, was it possi- ble to unite upon a candidate who could command a majority — a man whose name was not proposed until the balloting had been going on for nearly fifty days, and who was not thought to have a serious chance until just before the final session.
And not only are the ballots many, but they are most unevenly distributed through the session. In Montana, in 1901, twenty-two of the sixty-six ballots were taken upon the last day of the session. In Ore- gon, the same year, of the fifty-three ballots of the entire session, twenty-five were taken upon its final day; even then the result was a tie, but enough changes were forthwith announced to secure the election of J. H. Mitchell. In the first year of the decade run of farce, which the Delaware legislature has played under the stage management of J. Edward Addicks, toward the end of the session the balloting waxed fast and furious : on a single day forty-two bal- lots were taken, and on the following day thirty-seven, the last of them but a few minutes before the final ad- journment ; yet all to no efifect, and Delaware was left with but one senator in the next Congress.
Another significant feature of recent senatorial elec- tions is the astonishing multiplication of candidates. The record may have been established by the North Carolina legislature's list of eighty-five candidates in
46 The Election of Senators
1903; but other States have made a notable showing. On the first ballot, in the Mississippi Assembly of 1896, thirty-four candidates received support. In the elec- tions of 1899, twenty-one candidates were voted for in Montana, sixteen in Nebraska, seventeen in Pennsyl- vania, twenty in Utah, while in the mad hunt for some name by which the Delaware legislature might be stampeded, not less than ttventy-seven candidates were brought forward. That any one of these States should have twenty, not to say eighty-five candidates of first or even of third-rate senatorial timber is sufficiently improbable. But the election of senators by the state legislatures has become so much a game of chance that often even the darkest of dark horses is kept in the running to the very end.
Another thing which statistics cannot reveal is the spirit, the temper of the election. In such prolonged contests, involving the most intense personal and party interests, it is hardly conceivable that the contestants should face the prospect of a drawn game with the calmness of opponents at chess. The stake is too heavy. As the inevitable hour of adjournment approaches, the tactics are changed. It may be that resort is had to parliamentary sharp practice. Thus, in the Pennsyl- vania election of 1890, when it was rumored that by breaking pairs the deadlock was to be broken in favor of Quay, the Democrats and independents countered by joining to prevent a quorum ; and for twenty-eight days they made it impossible for the joint assembly to take a vote. In Wisconsin, in the same year, before the taking of the fifth ballot it was formally announced that it had been agreed upon that, at that meeting of
The Election of Senators 47
the joint assembly, but one vote should be cast for each of the candidates for United States senator, and that the members designated for this duty would cast such votes. Accordingly, upon the roll-call one vote was given for each of six candidates, while 127 members were recorded as "absent or not voting." In Maryland, January 30, 1904, upon the call of the roll, one senator and six members of the House answered to their names. "The chairman of the joint assembly then ordered the sergeant-at-arms to bring in the absentees — after a careful search he reported that he could not find any member of either house," whereupon the assembly was adjourned for lack of a quorum. In Delaware, in 1895, the acting governor, who from the day that he assumed the functions of the chief executive had taken no part in the proceedings of the Senate, in the last session was induced to assert his right both to preside and to vote, and thus blocked the election ; two years later, in Dela- ware a "rump" house proceeded to organize and declare Addicks elected.
Or, the growing tenseness of the strain may evidence itself not in parliamentary strategy, but in riotous demonstrations more appropriate to a prize-fight than to a senatorial election. To cite the most recent in- stance, the Missouri election of a senator, in 1905, took place in the midst of a riot. Lest the hour of adjourn- ment should come before an election was secured, an attempt was made to stop the clock upon the wall of the assembly chamber. Democrats tried to prevent its being tampered with ; and when certain Republicans brought forward a ladder, it was seized and thrown out of the window. A fist-fight followed, in which many
48 The Election of Senators
were involved. Desks were torn from the floor and a fusillade of books began. The glass of the clock-front was broken, but the pendulum still persisted in swing- ing until, in the midst of a yelling mob, one member began throwing ink bottles at the clock, and finally suc- ceeded in breaking the pendulum. On a motion to adjourn, arose the wildest disorder. The presiding officers of both houses mounted the speaker's desk, and, by shouting and waving their arms, tried to quiet the mob. Finally, they succeeded in securing some sem- blance of order. Instances might easily be multiplied of recent senatorial elections which have taken place in the midst of frenzied excitement.^ It is ridiculous
*In the Florida legislature of 1897, on the 2Sth ballot the result was first announced as a tie. "Pandemonium prevailed for a time, the partisans of both candidates jumping upon desks and chairs and waving their arms frantically in efforts to make them- selves heard." The election the same year in Utah is thus de- scribed by a local paper: "Upon the floor of the assembly mem- bers boldly charged that their colleagues were slaves of a priest- hood, that they were voted like cattle, first for one candidate and then for another, all the time controlled by an unseen hand. . . . The members thus accused uttered indignant and fiery protests against these charges, which were denounced as absolutely false. . . . For two hours the assembly was tossed and swayed by the storm of excitement, and the final scene, ending in the an- nouncement of Rawlins's election, was one of such wild frenzy, such dramatic, almost tragic, features, as to almost beggar descrip- tion."— "Salt Lake Herald," quoted in Annual Cyclopadia, 1897. Two years later the session of the Utah legislature was declared "notable for exhibitions of bad spirit between the members, charges of bribery and personal conflicts." In the Montana lepslature of 1899, the Clark and Daly factions "indulged in a war of words, and the lie was exchanged by several. Personal and political feeling ran high, and Ex-Speaker Kennedy was knocked down because of some remarks concerning bribery charges."
The Election of Senators 49
to suggest that amid scenes like these the choice of a senator retains anything of the character of an exercise of cool judgment. The contest has become a fight to the finish, in which it is but natural that high-minded discriminations as to weapons or tactics should fall into abeyance. The victory is to be won at all hazards. Whenever men's passions are aroused to the highest pitch, the fighting instinct asserts itself in its most primitive forms ; though whether the blow follows hot upon the reply churlish, or awaits the lie circumstantial, or even the lie direct, seems to be somewhat a matter of latitude and longitude. The passion stirred by these senatorial deadlocks has led not merely to an occasional assault and to fist-fights of the mob, but to threats of organized attack and resistance, and to the reign of martial law. In recent years, Colorado has been pecu- liarly subject to fraudulent elections. In 1891, a dis- pute having arisen as to the election of speaker, two house organizations were effected, each claiming to be the legal house. A dozen years later, in 1903, upon the face of the returns, the House was Republican by a majority of seven; but hold-over senators made that body Democratic by a majority of thirteen, and gave the Democrats a majority of six on the joint ballot. The majority in each house thereupon proceeded, on the charge of fraudulent elections, to attempt to unseat enough of its own members to secure for its party the control of the joint assembly which was to elect a sena- tor. Since the Democrats had at their back the police of Denver, the Republicans, in turn, through their pre- siding officer, appealed to the governor for troops to support him in his attempt to recognize the thirteen
50 The Election of Senators
Republicans as the Senate. That the official recogni- tion of the Democratic Senate as the legal body, and the assembling of all the Democrats in a joint session, in which a bare majority of the legislature took part, made possible the prompt election of a senator must not disguise the violence of the struggle nor the near approach to anarchy to which it led.^ Many circum- stances combined to make the Kentucky contest of 1896 particularly exasperating. Feeling ran so high that during the last week of the session weapons were much in evidence. Assaults and threats of bloodshed became so frequent that the governor felt forced to call out the militia, and for three days the legislature met in a capital filled with troops enforcing martial law.*
'Independent, Vol. 55. P- 278 (Jan. 29, 1903); Outlook, Vol. 73, P- 234 (Jan. 31, 1903)-
* The Frankfort correspondent of the Courier-Journal gave this account of the situation of March 14 : "There was not a score out of the 132 members at Saturday's session who did not have one or two pistols concealed, to say nothing of knives and other weapons. Even peaceably disposed legislators were tempted to arm in self- defense, and both parties had chosen leaders on the watch at commanding points about the hall. James Walton, whose pres- ence was obnoxious to the Democrats, was placed among Re- publican associates, and one of the most fearless of the party, well armed, was deputed to open fire on any one who attempted to molest them. The Democrats had several trustworthy men in a position to cover this Republican in case of a signal for close action. The Democratic leader, seated in the center aisle, near the door, was another storm center." It was on the basis of such reports that the governor, much against the will of the legislature, called out the militia. "Two days later," says the New York Tribune (March 16, 1896), "it was the turn of Rev. Mr. Cooper, the chaplain of the penitentiary, to open the House with prayer. At first he was stopped by sentries, when trying to enter the building. He said : 'It is my morning to open the House with prayer, but I will not do so. I refuse to dishonor
The Election of Senators 5 1
B. BRIBERY AND CORRUPTION.
How often, in connection with senatorial elections, resort has been had to bribery or to the corrupt pledge of office, it is impossible to determine. This much is certain, that in not less than seven States, during the past fifteen years, charges of corruption have been put forward with enough of presumptive evidence to make them a national scandal. In Ohio, California and Mon- tana the charges were made the subject of formal inquiry by the legislature, and, in each case, the major- ity of the committee of investigation declared that the evidence of the corrupt use of money was conclu- sive. In the Ohio case the responsibility for the cor- rupt solicitation was not fixed upon the senatorial can- didate. The Montana candidate, by the report of the Senate committee, was held responsible for unwarrant- ably large expenditures in connection with the election. Whereupon, he promptly resigned his office without awaiting the action of the Senate upon the report, and, at the next session, the Montana legislature forthwith
God while Kentucky is being dishonored. The House can do without prayer this morning, so far as I am concerned.* That day, in the joint ballot, only one man voted. At the final roll- call of the session, two days later, not a senator answered to his name, and only two members of the House voted. 'Mr. Howard moved that the session be dissolved 'everlastingly, eter- nally and forever.' His motion was carried with a wild yell. A member started up the Doxology, and the crowd in the lobby joined in." Senator Blackburn seemed satisfied with his achieve- ment in blocking an election at that session, and made a speech in which he declared : "There has not been one single line orig- inal, copied, borrowed or stolen in the Democratic press of I-onisville for the last three months, which was not a lie." — New York Tribune, March 18, 1905.
5 2 The Election of Senators
"vindicated" him, by reelecting him to succeed himself; and he took his seat without further protest. In Cali- fornia, the committee reported that more than $20,000 had been expended by the manager of one of the can- didates in order to secure the election of members of his party to the legislature ; the speaker of the House was specifically charged with having accepted gifts and loans from campaign managers while at the same time securing support from an influential newspaper by alleging that he was entirely unpledged. Under these charges he resigned, but was not prosecuted. In Utah, the majority report from the committee of investigation declared that one of the members had been improperly approached to secure his vote for a candidate, but that "the evidence did not establish an attempted bribery or other public offense." Charges of bribery have been chronic in connection with Delaware and Pennsylvania senatorial elections, but they have not been subjected, in recent years, to formal investigation. In Connecti- cut, responsible parties have asserted that they are ready to lay before the United States Senate convincing evidence of the widespread corrupt use of money during the senatorial campaign of 1904 and 1905.
Such have been the most notable instances of alleged bribery and corruption in connection with the senatorial elections of the past fifteen years. But this subject can- not be dismissed without directing attention to the history of the action which the Senate itself has taken in the cases where charges of bribery have been laid before it with a view to invalidating the election of men claiming membership in its body. The popular notion of the prevalence of bribery in senatorial elections is
The Election of Senators 5 3
strengthened not a little by the fact that the Senate has shown extreme reluctance to investigate such charges, and has bound itself by precedents which make not only the unseating of a member, but even the pursuit of a thoroughgoing investigation, practically impossible, except where the evidence of guilt is overwhelming and notorious. There is indisputable proof that a number of legislatures have been tainted by bribery in the interest of senatorial candidates, and that this evil has not been lessened but rather increased since — if not by — the enactment of the law of 1866. For it is a sig- nificant fact that for nearly seventy years after the framing of the Constitution, not once was the Senate called upon to investigate a senator's election, the valid- ity of which had been challenged because of alleged bribery or corruption. Ten senators have thus been brought to the bar of the Senate, the first of these un- savory cases having arisen in 1857. The record is as follows :
I. 1857. Simon Cameron. (Pa.)
Certain members of the Pennsylvania Legisla- ture protested against the seating of Cameron on the charge, among others, that his election had been procured "by corrupt and unlawful means." The senate committee, to which these charges were referred, reported that the allegation was entirely too vague and indefinite to justify the rec- ommendation of an investigation by the Senate. This report was adopted, although a minority of the committee dissented on the ground that, when a protest of this nature came from a respon-
54 The Election of Senators
sible source, the Senate should investigate the charges and allow the persons protesting an oppor- tunity to submit the evidence upon which the charges rested.
2. 1872. 5. C. Pomeroy. (Kan.)
The Senate committee reported that the charges of bribery and corruption "totally failed to be sustained by any competent proof." No further action was taken. The following year Pomeroy's reelection in 1873 was challenged on an allegation of bribery. The committee reported that the charges were not sustained, since they were con- tradicted by direct evidence. No further action was taken, although a minority report from the committee held that the charges had been sub- stantiated.
3. 1872. Powell Clayton. (Ark.)
The committee recommended the adoption of a resolution that the charges were not sustained. This was agreed to. A minority report contended that there was evidence that Clayton had secured votes both by the gift of money and of lucrative offices.
4. 1873. Alexander Caldwell. (Ark.)
The committee recommended the adoption of a resolution to the effect that Caldwell "was not duly and legally elected." After a long debate, but before a vote had been taken upon this reso- lution, Caldwell resigned his seat.
The Election of Senators 55
5. 1875. George E. Spenser. (Ala.)
The committee found the charges "not proven." The Senate took no further action.
6. 1877. La Fayette Grover. (Ore.)
The committee reported that the evidence taken did not sustain any of the charges.
7. 1879. John J. Ingalls. (Kan.)
Both the majority and minority reports exoner- ated Ingalls from personal complicity in bribery; but it was held to be proved that corrupt means "were made use of both by those favoring and by those opposing his election." The Senate took no further action, thus establishing a precedent, as noted below, which some have considered most unfortunate.
8. 1886. Henry B. Payne. (Ohio.)
Three reports came from the committee; two of them, signed by four and three members re- spectively, held that there had not been sufficient evidence presented to warrant an investigation; the third report held that an investigation should be made. By a vote of 44 to 17 the Senate de- cided to make no further investigation of the charges against Payne.
9. 1898. M. A. Hanna. (Ohio.)
A majority of the committee reported that there was no evidence that Hanna was elected by bribery; or that he authorized his agents to use
56 The Election of Senators
corrupt means, or that he had personal knowl- edge of tlie alleged bribery. In view of the fact that no demand for the further prosecution of the inquiry had come from Ohio, the committee asked to be discharged from further consideration of the matter. A minority report, signed by three Democratic members of the committee, held that facts had been disclosed which did call for further inquiry and investigation. The Senate took no action.
10. 1899. W- ^- Ci^^f^' (Mont.)
The committee rejXDrted that Clark "was not legally elected," since, of his apparent majority of fifteen, more than eight votes had been obtained through illegal and corrupt practices. The report was debated at length in the Senate : before it was acted upon, Clark resigned his seat, after making a strong speech in his own defense. (May 15, 1900.)
In the lifetime of a single generation, thus, the Sen- ate has had to deal with nine cases of alleged bribery, while only one had arisen in all its earlier history. A reading of the reports of the investigating committees leaves no question that in most instances not a desire for truth and justice, but party policy determined the bringing of the charges and the zeal with which they were pressed. Although the majority reports exoner- ated the accused in eight cases, or rather, asserted that the evidence did not warrant further action, in all but two out of the ten, guilt seemed probable, at least, to a
The Election of Senators ^y
minority of the committee. In every one of the four cases which have occurred within the past twenty-five years there has been no question whatever that bribery was at least attempted, if not carried out. It is true that verdicts of "not proven" have been given by the majority report in most cases; that no senators have been expelled for bribery, and that only two have re- signed in consequence of these investigations. Yet this statement gives a better impression than is warranted by the facts.
In the first place, the Senate finds no warrant for in- vestigating and no possibility of punishing corrupt practices in a state legislature by or in behalf of a can- didate who does not secure enough votes to claim an election. These investigations, therefore, do not in- clude many of the most flagrant instances of recent corruption in senatorial contests, as in California and Delaware. Moreover, the scope of the Senate's action has been still further narrowed by the Senate's accept- ing as binding precedent, the principles laid down in the Ingalls case, that in order to invalidate a claim to a seat it must be proved by legal evidence ( i ) that the claimant was personally guilty of corrupt practices, or (2) that corruption took place with his sanction, or (3) that a sufficient number of votes were corruptly changed to affect the result. That the Senate's refusal to follow up an investigation or to expel a member is not always the equivalent of giving a clean bill of moral health to the legislature or to the senators may be in- ferred from the outcome of the Payne case. Plenry B. Payne took his seat as senator from Ohio in 1885. Forthwith, there was presented to the Senate the report
58 The Election of Senators
of a special committee of the Ohio House of Repre- sentatives appointed to investigate charges of bribery against four of its members in the session when Payne v^as elected; next there were presented to the Senate memorials from both the Senate and the House of the Ohio legislature and from the Republican state com- mittee, representing that the election of Payne had been procured by bribery and corruption. Representations to the same effect came from a convention of Republi- can editors and from numerous citizens of Ohio. The ten Republican members of the national House of Rep- resentatives from Ohio added their earnest request for an investigation. The senate committee examined the testimony submitted from the Ohio legislative com- mittee, and gave hearings to two Ohio congressmen in advocacy of further investigation ; but by a large major- ity the committee reported against such action, in spite of the fact that two Ohio congressmen, one of whom had lately been attorney-general of that State, offered to prove that three-fourths of the Democratic members of the Ohio legislature in question had been positively pledged to two other candidates, an absolute majority of the number having been pledged to Pendleton ; that Payne was nowhere publicly spoken of or known as a candidate during the popular election of members of the legislature nor until a very short time before the elec- tion of a senator by the legislature; that just before the legislative nominating caucus, a week before the elec- tion, large sums of money were placed by Payne's son and intimate friends of his in the control of his active managers ; that members of the legislature who changed from Pendleton to Payne did so after secret and confi-
The Election of Senators 59
dential interviews with the agents who had the dis- bursement of this money; that such members, at about the time of the change, had acquired large sums of money of which they gave no satisfactory account ; that Payne's son and a friend of his each had made state- ments that the election had cost many thousands of dollars ; and that there was specific evidence leading to the conclusion that votes had been changed corruptly in the case of each of ten members — a number more than sufficient to determine the result of the election in Payne's favor.
In view of the offer on the part of such responsible parties to substantiate charges of so grave moment, two members of the committee, Senators Frye and Hoar, protested earnestly against the Senate's refusal to pur- sue the investigation further, claiming that the prece- dent would be most unfortunate, if the Senate thus should show itself unwilling to make inquiry for its own protection, when the honor of one of its members was so strongly impugned. But this protest was of no avail."
C. VACANCIES IN THE SENATE.
As the end of a session of a state legislature ap- proaches, the efforts to secure the election of a senator at all hazards become more and more desperate.
"In vain, in vain, the all-consuming hour Relentless falls."
But, since 1890, in ten States, the parting knell has
* Details in regard to these and other election contests may be found in G. S. Taft's Compilation of Senate Election Cases (edi- tion of 1903).
6o The Election of Senators
struck for the legislatures, leaving fourteen seats in the Senate vacant, as follows :
California, 1899.
Delaware, 1895; 1899; two in 1901 ; 1905.
Kentucky, 1896.
Louisiana, 1892.
Montana, 1893.
Oregon, 1897.
Pennsylvania, 1899.
Utah, 1899.
Washington, 1893.
Wyoming, 1893. How has the membership of the Senate been affected ? In the case of Louisiana, by reason of the long term of the legislature, it was possible to make the election at the next regular session before the seat actually be- came vacant. In all the other cases, the State had to face the gloomy alternative of having but one represen- tative on the floor of the Senate, or of undergoing the cost and trouble of convening a special session of the legislature, in which the deadlock might develop again and continue indefinitely, as in Kentucky in 1897. To be sure, in five States an attempt was made to avoid this disagreeable dilemma by means of recess appoint- ments by the governor; but, following the unbroken precedent of three-quarters of a century, the Senate refused to admit to its membership men who had been appointed by the governors of their several States when the legislatures had had an opportunity to fill the vacan- cies, but had failed to do so by reason of deadlocks. The Senate thus passed upon and excluded Mantle of Montana, and Allen of Washington, in 1893; and
The Election of Senators 6 1
before these cases were fully decided, Beckwith, the gubernatorial appointee from Wyoming, had resigned. In like manner, Corbett of Oregon was excluded in 1897. In 1899, the appointment of Quay came with less force before the Senate, both because the contestant had himself voted against the recognition of men in similar position, and because his own appointment was made in defiance of the provision in the Constitution of Pennsylvania, which specifically directs the governor to call the legislature together in special session when- ever a vacancy occurs in the State's representation in the Senate. In view of the exclusion of Quay, the governor of Delaware made no appointment, and the recess appointee from Utah announced that he would not present his credentials.' In three of the States, the alternative of a special session was chosen. In Ken- tucky, the legislature was in session nearly seven weeks. The deadlock again developed immediately, and lasted from week to week. For four days a quorum was prevented, but, at the last, Deboe, who had been nominated only five days before, was elected. In Oregon, the State had been too outraged by the fiasco made by the legislature at the time of the regular session to tolerate any dilatoriness, and an election was effected on the fourth day. In California, the special session lasted thirteen days. What these sessions cost the States either in money or in the derangement of public affairs it is impossible to compute with accuracy. Each day of a legislative session, however, is an ex- pensive luxury. In Tennessee, in January, 1898, it
•G. S. Taft, Compilation of Senate Election Cases (edition of 1903).
62 The Election of Senators
became necessary to convene a special session to fill a vacancy caused by the death of a senator and to attend to a few other matters. It lasted from January 17 to February 5, yet Tennesseeans estimated that it cost the State $20,000. In California, $960 is the amount each day due for the payment of members alone, to mention none of the other expenses of the session. In- deed, in g^eneral, it would be a low estimate to say that each day of a special session costs the unfortunate State not less than $1,000.
Six States have accepted vacancies in the Senate as the penalty of their legislatures' failure to elect. The duration of the vacancies varied somewhat, but, in most instances, it amounted to the loss of a senator for the entire term of a Congress; for the senator's service could amount to little, when he was seated only within a month of the end of the last session. These are the States which have thus suffered :
FIFTY-THIRD CONGRESS. State. Date. Date.
Montana. March 4, 1893. February 2, 1895.
Washington. March 4, 1893. February 19, 1895.
Wyoming. March 4, 1893. February 6, 1895.
FIFTY-FOURTH CONGRESS.
Delaware. March 4, 1895. February 5, 1897.
FIFTY-FIFTH CONGRESS.
Oregon. March 4. 1897. December 5, 1898.
FIFTY-SIXTH CONGRESS.
Delaware. March 4, 1899. March 3, 1901.
California. March 4, 1899. March 5, 1900.
Pennsylvania. March 4, 1899. January 17, 1901.
Utah. March 4, 1899. February 4, 1901.
The Election of Senators 63
FIFTY-SEVENTH CONGRESS.
State. Date. Date.
Delaware. March 4, 1901. March 3, 1903.
Delaware. March 4, 1901. March 3, 1903.
FIFTY-NINTH CONGRESS.
Delaware. March 4, 1905.
The record of seven Congresses, therefore, shows that only one has not had its Senate cut down by vacancies due to deadlocks in state legislatures. In three Con- gresses, there has been one such vacancy ; in one, two ; in one, three; and in one, four. Since 1895 there have been but two Congresses in which Delaware has had the representation to which she is entitled in the Senate, and in the Fifty-seventh Congress she had no part whatever in the Senate's deliberations.
D. MISREPRESENTATION OF STATES IN THE SENATE.
As regards the State's representation in the Senate, the method of election has not only resulted in the loss to the State of a half or of all of the representation to which it is entitled, and to secure which was the object of pertinacious struggle in the Convention, but in not a few cases it has resulted in positive misrepresen- tation of the political elements of the State, in flagrant violation of the fundamental principle of democracy that the majority shall rule. This criticism is not to be passed upon all elections which result in the choice of a senator of a different party from the one which would have triumphed at the polls. If the popular majority would have been carried away by the whim of the moment, and if holdover members of the state senate or the conservatism of the legislature as a whole
64 The Election of Senators
— which may have been elected two or three years be- fore— prevents the election of the "man in the saddle," it may be a matter of congratulation. But no such sat- isfaction can be derived from the spectacle of a fac- tional fight in the legislature resulting in sending to the Senate for six years a man representing a party that is in distinct minority in the State. While it is true that the strife of factions might result in the choice of a minority candidate under another method of elec- tion, it cannot be disputed that in the opportunities opened up by a prolonged deadlock in the legislature the chances of such minority successes are vastly increased. In the very year when the legislatures of Montana, Washington and Wyoming wrangled away their entire sessions without electing senators, and thus left their States with crippled representation in the Senate, the neighboring States turned out anomalous and hardly more satisfactory products. North Dakota, a Repub- lican State with a Republican legislature, returned a Democratic senator, while Kansas elected a Demo- cratic senator, although the Legislature contained only a handful of Democratic voters.'
^ It is true that in both these States party lines were badly blurred in 1893. The extent to which fusion had been carried may be seen from these figures :
NORTH DAKOTA.
i8q2. 1893.
Vote for Joint Ballot
Parties. President, in Legislature. Result.
Republican. 17,486 50
Democratic. 23
People's. 17.650 . . Elected a Dem.
Independent. 14
Dem. Independent. 8
Rep. Independent. 3
The Election of Senators 6^
In other cases, a far different representation may result from the legislative election of senators than would be g'iven by popular election because of the scheme of representation peculiar to the individual State. Thus, it is not without significance that since 1865 Connecticut has had thirteen Republican govern- ors, serving twenty-seven years, and five Democratic governors, serving thirteen years ; ® in four presidential elections — 1876, 1884, 1888 and 1892 — the State was carried by the Democrats; but during all that period of forty years, she has had only two Democratic sena- tors, and these were elected in the years 1875 and 1876, for a single term each.
E. INTERFERENCE WITH STATE BUSINESS.
Entirely aside from any effect upon the quality or political character of the State's representation in the Senate, are certain results of grave significance for the individual state legislature. It is no exaggeration to say that there is never a long contest over a sena- torial election which does not do serious harm to the interests of the Commonwealth which its lawmakers are chosen to guard. The injury may seem to consist simply in the consumption of the time required for the
KANSAS.
Joint Ballot in Legislature. Result.
79
2
Elected a Dcm. 84
• 1867-1869, 1870-1871, 1873-1877, 1877-1879, 1883-1885, 1893- 1895.
|
Parties. |
1892. Vote for President, |
|
Republican. |
157.241 |
|
Democratic. |
|
|
Prohibitionist. |
4.5.S3 |
|
People's. |
ir>3.Tf I |
66 The Election of Senators
ballots, and in the developing of political excitement which would not otherwise have arisen. But each of these may involve consequences of grave import. Each ballot takes a very considerable amount of time, and when the session is limited to forty or sixty days, the inroads thus made upon the legislature's hours curtail very materially the time which is available for its nor- mal work in the service of the State. As the session wears on, the animosities engendered in the deadlock cannot be laid aside when the joint assembly adjourns from day to day : they project themselves into the ordi- nary work of the lawmaking body, giving a party color to the most non-partisan measures, distorting the legislator's views of many of the state issues and pre- venting the straightforward carrying on of the normal work of the legislature. This interference may vary through wide degrees of seriousness. Almost plaintive is the resolution, adopted just before the taking of the twenty-second ballot in the joint assembly of a State which had suffered sadly from these trials : '
"Whereas, The duty of electing a United States senator, while of great importance, is not the sole and only duty of the Legislature, and there are many other matters and things of vital interest to the people to be considered and determined during the brief constitu- tional life of this body, and
Whereas, There is apparently no reasonable ground for the belief that the pending senatorial contest will be ended within the short time and the tedious repeti- tion of ballots brings the Legislature no nearer the de- sired consummation, therefore be it
Resolved, By the Legislature of the State of Wash- ington in convention assembled : That during the pres- • January 20, 1903.
The Election of Senators 67
ent sitting of this body and hereafter during the present session, when convened for the present purpose, the Legislature shall take two ballots — and thereupon dis- solve the joint session and endeavor to do some other business of the State."
Most impressive of all, in its warning of what sena- torial election contests may mean for a State, is the ex- perience of Oregon in 1897. The constitution of that State requires the presence of two-thirds of the mem- bers elected to each house, before that house can effect its organization. A forecast of the probable result of a ballot in joint assembly led to a sufficient number of the members of the lower house absenting themselves to prevent its completing its organization. Early in the session, a perfunctory attempt was made each morn- ing to convene the House : the regular record of pro- ceedings reads : "At 12 o'clock, the committee on cre- dentials not having reported, on motion a rest was taken until 2 p.m.," at which hour the attempt was given up for that day. Thus the headless house con- tinued taking rests throughout the session. Oregon's domestic legislation was at an absolute standstill. Not a bill of any kind could be passed, not even an appro- priation for current expenses, so that while the regular taxes were bringing in a revenue, for fifteen months or more the bills of the State had to be paid in warrants drawing interest at eight per cent. Such is the inglorious record of this American "Addled Parliament," a legis- lature "powerless to be born," its wretched plight being due not to any interference by a Stuart king, not to any paralyzing political issues which the people of the State could not decide, but simply and solely to the power
68 The Election of Senators
for mischief which our method of electing senators placed in the hands of a man whose arrogant ambition could relinquish no slightest chance of winning a seat in the Senate, no matter how great the injury done his State — a man who came to an inglorious end under sentence of imprisonment for having received money for using the influence of his high office for the further- ance of land frauds against the United States — the man, than whom, by the irony of fate, the Senate has never known a more persistent and tireless advocate of the election of senators by the direct vote of the people.^"
F. CONFUSION AND CORRUPTION OF STATE AND LOCAL POLITICS.
Not only does the State suffer through the interrup- tion of its normal legislative work, but the election of senators injects into state politics an incongruous and disorganizing element. There can be no question that this is one of the strongest influences which tend to
" The Journal of the Legislative Assembly of Oregon is pub- lished as Senate Document, 55th Cong., ist Sess., No. 62. Of course it was never possible to read and approve the journal, since the House was never organized, but a committee was ap- pointed to examine, correct and approve it. On a number of days bills were "read the first time and passed to a second read- ing without question" and petitions were introduced "by unani- mous consent," but no further action upon them was possible. The forty-day session began early in January, 1897. By a deci- sion, rendered August 10, 1897, the Supreme Court of Oregon ordered the secretary of state to audit claims and draw war- rants for all claims which the legislature had, through its en- actments, permitted and directed either expressly or impliedly. Some discussion of this annihilation of the legislature is to be found in a speech of Mr. Tongue, of Oregon, in the National House of Representatives, May 11, 1898. — Congressional Record, Vol. 31, p. 4819.
The Election of Senators 69
submerge state parties and to subordinate local issues, of however great importance. These effects are not to be gauged quantitatively by statistics, but they are matters of the commonest observation and of the ut- most significance. Not only may an impending election of senator throw every consideration of state affairs into the background in the election of members of the legislature, as in Connecticut during the summer and autumn of 1904 — it may even subordinate all interest in a presidential campaign. "This year, the question in Delaware is not 'Roosevelt or Parker?' but 'Addicks or no Addicks?' " Whether these words are correctly attributed to Mr. Addicks himself or not, there is not the slightest doubt that they stated the exact truth of the situation.
G. SUMMARY.
Forty years ago, Congress set about the task of im- proving upon the work of the fathers by prescribing a system of regulation, intended to correct the abuses which had arisen in connection with senatorial elections. Yet dissatisfaction with the working of the system has steadily increased. What, in brief, have been the rea- sons for this ? The experience of the past fifteen years makes reply: Not a few, but at least half the States of the Union, belonging to no isolated section, but States scattered the country over, from Delaware to California and from Montana to Louisiana, have suffered from serious deadlocks. These fierce and pro- longed contests, the outcome of which was often as much a matter of chance as is the throw of dice, aroused men's worst passions, and gave rise, now to insist- ent charges of bribery, now to turbulent and riotous
7© The Election of Senators
assemblies, to assault and to threats of bloodshed, such that legislative sessions have had to be held under the protection of martial law. Fourteen contests in ten States have lasted throughout an entire session of the legislature without effecting an election. Four States have submitted to the heavy cost and inconvenience of special sessions to elect senators. Six States have pre- ferred to accept vacancies as the penalty for their legis- latures' deadlocks, and have thus been deprived of their "equal suffrage in the Senate;" while the country at large has been deprived of a Senate constituted as the fathers intended. In the Fifty-third Congress, three seats were vacant; in the Fifty-sixth, four. Not only has the working of our system brought it about that some States have been but partially represented, while others have been without voice altogether, but at times it has led to positive misrepresentation in the Senate; while, to the individual State, it has brought a domina- tion of the whole range of state and local politics by this fierce fight for a single federal office, and interference with the normal work of state legislation, ranging all the way from the exaction of a few hours of the legis- lature's time to the virtual annihilation of the legis- lature, which was chosen to guard the interests of the State. Experiences such as these, exceptional though they still are, have nevertheless become so frequent and so widespread that in recent years they have given rise to a determined propaganda, which no longer contents itself with an attempt to correct obvious defects in the law by which Congress has regulated the election of senators, but which demands that these elections be placed directly in the hands of the people.
CHAPTER IV THE PERSONNEL OF THE SENATE
In an attempt further to find out what are the results of the method of election established by the Constitution and developed by Congress, it is desirable to examine the personnel of the Senate. It is true that the method of election is but one of a considerable number of causes which have cooperated to make the Senate what it is. It is likewise true that it is impossible entirely to differ- entiate this particular cause and to estimate with preci- sion its absolute or relative importance. Nevertheless, to put the matter negatively, an examination of the personnel of the Senate will disclose types of senatorial candidates which are not repugnant to their constitu- encies, the state legislatures. Furthermore, such an examination cannot fail to reveal certain effects upon the Senate which are positively, though in varying de- gree, attributable to conditions inherent in the process of its members' election by state legislatures.
For these purposes, an examination has been made of the membership of five Congresses, from the Fifty- fourth to the Fifty-eighth. No account has been taken of changes in the Senate made later than the end of the first regular session of the Fifty-eighth Congress. Nearly all the data here used have been derived from the biographical sketches which appear in the official Congressional Directory, sketches either written by
71
72 The Election of Senators
the senators themselves or compiled from data which they furnish. In either case, they afford interesting testimony as to the individual senator's opinion of the qualifications and experience which have fitted him for his high office, and of the services or political accidents which have made him an available candidate in the eyes of the members of the legislature by whom he was elected.
In these five Congresses, there have served, in all, 159 senators, making an average of between three and four from each State. Six States made no change in their senatorial representation during these Congresses cov- ering a decade; namely, Maine, Massachusetts, Rhode Island, Connecticut, Virginia, and Wyoming. It will be noted that four of these are New England States. In one other State of that conservative section, it is probable that no changes would have been made but for the death of a senator of long and distinguished service. On the other hand, Kansas, Mississippi, Nebraska, Utah and Washington have each elected five senators ; yet this exceptionally large number does not necessarily indi- cate political instability or inconstancy.
Of the whole number of senators, eighty-one have been Republicans, ninety-five Democrats, nine Popu- lists, two "chameleons," ^ one Independent and one
^ This term is here applied to two men, whose names have been listed with several parties during their service in the Senate. While one of them has seemed changeable and ready to fish in all waters, of the other it may perhaps be said that, upon the issue which he has thought the dominant one, he has shown greater consistency than any of the parties with which he has been temporarily listed, and that, like Burke, "he changed his front, but he never changed his ground."
The Election of Senators 73
"Union" Republican. In the several Congresses, the proportionate strength possessed by the principal parties in the Senate and in the House is indicated by the fol- lowing table:
PROPORTIONATE PARTY STRENGTH IN THE SENATE AND IN THE HOUSE.
FIFTY-FOURTH CONGRESS. — Senate- Years. Party. Number. Per Cent.
1895-7. Republican. 42 48.8
Democrat. 39 45.3
Others. 5 5.9
FIFTY-FIFTH CONGRESS.
1897-9. Republican. 46 51.1
Democrat. 34 37.8
Others. 10 ii.i
FIFTY-SIXTH CONGRESS.
1899-1. Republican. 53 58.9
Democrat. 26 28.9
Others. 11 12.2
FIFTY-SEVENTH CONGRESS.
1901-3. Republican. 56 63.6
Democrat. 29 32.0
Others. 3 3.4
FIFTY-EIGHTH CONGRESS.
1903-5 Republican. 58 64.4
Democrat. 32 35.6
Others. o 0.0
Variations such as these are in large part, of course, a result of the longer term of office in the Senate. Six years may enable a senator to survive a political flurry which has produced radical changes in his State's dele- gation in the House. But the political complexion of the Senate is materially affected also by the election of its members by the legislature, which, from the system
|
Number. 246 |
[ouse— Per Cent. 68.9 |
|
104 |
391 |
|
7 |
2.0 |
|
206 |
57-9 |
|
^34 16 |
37-4 4-5 |
|
185 163 |
51.8 45-7 |
|
9 |
2.3 |
|
198 |
55.6 |
|
153 |
42.9 |
|
5 |
1.4 |
|
206 174 |
53-9 45-6 |
|
2 |
0.5 |
74 The Election of Senators
of representation peculiar to an individual State, may give one party a far greater advantage over its oppo- nents than it would possess in a popular vote. Thus, in States containing large urban communities the dis- proportionate weight given to each local unit, regard- less of its population, in the legislatures, as in Connec- ticut and Rhode Island, redounds to the distinct advantage of the Republican party in senatorial elections.^
Of the 159 senators, all but twelve were native-born citizens of the United States. Of these twelve, four came from England, four from Canada, two from Ire- land, and one each from Norway and Germany. Ohio may claim to be the mother of senators, as well as of Presidents, for she heads the list with seventeen of her sons. By a strange coincidence, every one of the four men who have served Indiana in the Senate during these ten years was an Ohioan by birth.^ Next stands New York with thirteen, Pennsylvania with eleven, Ken- tucky with nine, Mississippi and Vermont with seven, Tennessee and Virginia with six, and Massachusetts Georgia and South Carolina with five each. That many of the comparatively new States have not as yet elected men born within their territory is not surpris- ing; but it is strange that all the senatorships of such old States as Arkansas, Colorado, Florida, Iowa, Kan- sas, Minnesota, Nebraska and Nevada, in this period
* Supra, p. 65.
* That Ohio has been exceptionally prolific in lawmakers has been shown by the writer in a study of the state legislatures of 1899 (Representation in State Legislatures), in which it was found that sons of Ohio outnumbered by far any other outsiders in the legislatures of the other North Central States.
The Election of Senators j^
of ten years, should have gone to adopted sons. On the other hand, thirteen States elected only favorite sons ; and, not unnaturally, most of these w^ere from the more conservative sections of the country ; that is, three were from New England (Massachusetts, Maine and Vermont) ; four were from the North Atlantic States (New York, Pennsylvania, Delaware and Maryland) ; and five were from the South (Georgia, Louisiana, South Carolina, Tennessee and Virginia).
In studying the qualifications which conduce to elec- tion by legislatures, the first point to be noted as to the age of senators is the age at which they first enter the Senate. Many of these senators of the decade 1895 to 1905 had seen long periods of continuous ser- vice ; four had seen earlier, but non-consecutive service. In each case, therefore, the age of the senator at the time when he was first chosen is taken into the reckon- ing. Of the 158 men who served in the upper house by election during these five Congresses, the average age, at the time of election, was precisely forty-nine years. In any given Congress, the ages vary from close to the minimum limit of thirty prescribed by the Constitution, to a maximum well past four score. Thus, Senator Beveridge entered the Senate at thirty- six, and Senator Bailey at thirty-seven, while Senator Morrill died in service in his eighty-ninth year. Dur- ing the second session of the Fifty-eighth Congress, in 1904, the average age of the members of the Senate was 59.8 years. But such an averaging of ages does not go far toward showing the extent to which, in choosing our senators, the legislatures have sought old men for counsel ; that can be shown only by grouping
76 The Election of Senators
the members according to their ages. Thus, in the Fifty-eighth Congress, of the ninety senators : 8 were between 40 and 45 years of age, 6 were between 46 and 50 years of age, 18 were between 51 and 55 years of age, 15 were between 56 and 60 years of age, 15 were between 61 and 65 years of age, 15 were between 66 and 70 years of age, 8 were between 71 and 75 years of age, 5 were between 76 and 80 years of age. In America, educational standards are of the most diverse. In the biographical sketches many senators are reported to have received an "academic" education, but the meaning of that term is sufficiently vague to cover a wide range of training. Out of the 159 sena- tors, precisely one hundred reported that they had been enrolled for a time at some "college" or "university," or institution of similar rank, including in this generous grouping, professional schools of law and medicine. Sixty different institutions of varying reputation were represented, the vast majority, of course, claiming but a single senator. The list is headed by Yale and the University of Virginia, each of which has helped edu- cate nine senators. Next comes Harvard, with six; and Dartmouth and the University of Michigan with four each. Of those who have not received the bless- ings of an "academic" education, not a few take pains to lay modest emphasis upon the fact that they had had only the opportunities afforded by the public schools.
Of considerably greater interest and significance, as affecting the canons of choice, is the question of mili- tary service. That an aspirant's military record counts
The Election of Senators "jj
for much, is evidenced by the particularity with which it is set forth in the biographical sketches. Significant also is the sectional grouping of the soldier senators. Of the 159, there are fifty-one who had seen service in the Civil War : twenty-three in the Union, and twenty- eight in the Confederate army. Included in the latter number, are three who were also veterans of the Mexi- can War, ended fifty years and more before their recent service in the Senate. That, particularly in the South, a candidate's military record goes far to commend him, is shown not simply by the fact that the number of such senators is much larger in proportion to population than in the North, but by the fact that often exclusive choice has been made of such leaders of a former generation and of a lost cause. This is the case in Alabama, Florida, Mississippi and Virginia. In the other States, they have been chosen in the following proportions : Ar- kansas and Georgia, two out of three; Tennessee and Kentucky, three out of four ; Louisiana, two out of four ; Texas, one out of four, and West Virginia, one out of two. As to the Union veterans in the Senate, the most significant fact is that of their very restricted terri- torial distribution. With a single exception, all twenty- three of them came from but six States, belonging to the central group. The soldier senators have, more- over, been chosen in such proportions as to indicate that their selection is more than a coincidence; that their patriotic service is still held in grateful remem- brance ; or, perchance, that the soldier-vote can best be called out for a candidate who has himself known the hardships of war, and who may therefore be relied upon to favor liberal legislation as to pensions. These
78 The Election of Senators
Union veterans were distributed as follows : Connecti- cut and West Virginia, one out of two; Nebraska, two out of five; Ohio, two out of four; Michigan and Minnesota, two out of three; while, in Wisconsin, every one of her four senators was a Union soldier. The contrast is indeed striking between the South, which chose twenty-eight ex-soldiers out of a total of thirty- seven senators from that section, and all the other States, which chose but twenty-three out of 131. More- over, it is evident that these Southern soldier-senators, as a rule, held higher rank in the service than did their Northern colleagues; that the Confederate army num- bered among its officers many of the natural leaders of the South, in peace as well as in war ; and that the two score years that have passed since the close of the con- flict have not impaired the gratitude in which their services and sacrifices are held.
From what walks in life is the Senate recruited? Of the 159 senators, loi, or practically two-thirds, were lawyers by profession. In state legislatures, the lawyer element is one of the largest, in many States out- stripping any other. It is, therefore, but natural that, in the United States Senate — the members being thus chosen largely by lawyers and for the business of law- making— the legal profession should predominate.*
* In the New England and North Atlantic state legislatures of 1899 lawyers constituted 27.4 per cent, of the membership of Sen- ates and 1 1.8 of the membership of the lower houses, or 14.3 per cent, of the whole group of 2207 legislators. The proportion of lawyers was considerably higher in the legislatures of the Cen- tral and especially of the Southern States; in the four States of Louisiana, Arkansas, Mississippi and South Carolina, rising as high as 58.1 per cent, in the Senates and 31.9 per cent, in the Houses, or 38.5 per cent, in the entire group of lawmakers.
The Election of Senators 79
In popular classifications, the next group in point of numbers would be public officials: this consisted of eleven. The heading- is unsatisfactory, for it includes a number whose activities, through a series of terms in the Senate, have been so monopolized by that service that they have gotten out of other occupations. It by no means implies that they are .mere feeders at the public crib. Banking comes next with eight, and jour- nalism with seven. Mining claims four, and various forms of agriculture, eight. Four are set down as capi- talists, most of them retired from active business. Transportation claims four. Five were in mercantile employments, and four in manufacturing. One presi- dent of an insurance company, and one clergyman were in the list. The pessimist who, a few years ago, was bewailing the fact that "in both houses of Congress there was only one man who had written a book in stiff covers," may take heart at finding that that dis- tinction has been attained by two members of the pres- ent Senate, although only one of these claims "litera- ture" as his profession. Men of letters play a far more prominent role in legislative halls at London and at Paris than at Washington."*
•occupation of senators.
Lawyers lOI
Public Officials ii
Banking 8
Journalism 7
Mining 4
Agriculture —
Farmers 5
Planters 2
Stock-grower i — 8
Capitalists 4
8o The Election of Senators
If the list be scrutinized with a view to seeing in what degree it affords an adequate representation of the country's varied interests, a theorist who beheves that, in a measure at least, those interests should be represented each by its own members, and in propor- tion to its own numbers, will point out several anoma- lies. First, there is the exceptional part which lawyers play in this representation. The second surprise could hardly fail to be at the scant sprinkling of those engaged in agriculture; and the insignificant number engaged in those characteristically American fields of enter- prise, the manufacturing and the mercantile. The explanation doubtless is that, while the former are little skilled as politicians and are poorly supplied with the sinews of political war, the leaders in these branches of business are too engrossed with their own concerns to be willing to accept senatorial ofiice ; that in the Sen- ate they have preferred to be "represented by counsel"
Transportation —
Steamship Manager l
Railroad Presidents 2
Express Company President i — 4
Mercantile —
Merchants 2
Jeweler I
Coal and Iron I
Lumber i — 5
Manufacturing —
Manufacturers 2
Car-builder 1
Brewer i — 4
Insurance I
Clergyman I
Literature i
Total 159
The Election of Senators 8 1
— Whence the presence of those who are recognized as railroad senators, oil senators, copper, silver, or lumber senators. Furthermore, in contrast, for example, with the House of Commons,^ the Senate is chosen by a process which practically excludes from that body any members who are personally identified with, or who stand distinctively for, the great body of the wage- earners.
To what extent have the members of the Senate had previous legislative experience, and of what character has that experience been? It is to be remembered, of course, that the choice by legislatures has been but one of a number of causes which have influenced the selec- tion of seasoned legislative timber for use in the Senate chamber. Since the relation between legislative choice and the personnel of the Senate is the point now under consideration, the question as to previous experi- ence in the public service is asked in the case of each senator at the time when he was first elected to the Senate. Five of these 1 59 senators had served previous terms in the Senate; had then been retired for a time to private life, and had later reentered the Senate." The following table presents the extent of the ex- perience which these senators of five Congresses had
''^ "Perhaps the most significant and noteworthy fact connected with the new House is the tremendous increase in the number of Labor members. With John Burns in the ministry, and more than fifty members under the leadership of James Keir Hardic, in the Commons, labor, in the words of the Clarion, ihc organ of English labor interests, is no longer "on the doorstep." "Labor is inside, and something will happen." — Review of Rcvieius Vol. 33, p. 268 (March, 1906).
* Gordon of Georgia ; Dubois of Idaho ; Voorhees of Indiana ; Blackburn of Kentucky, and Smith of New Jersey.
8 2 The Election of Senators
had in the lower house before their election to the Senate.
EXPERIENCE OF SENATORS IN THE HOUSE OF REPRESENTATIVES.
Congresses I 2 3 4 5 6 7 8 9 10
Senators 12 15 9 6 6 4 2 o 2 i
It appears that, of the 159 senators in question fifty- seven, or 35.9 per cent, had served in the lower house. Where members of the House of Representatives were chosen, an experience of a considerable number of terms seems to have given them either that skill in the law- maker's craft which commended them as candidates before the legislatures, or that training in the arts of the politician which secured them the election over less adroit or less practiced winners of votes. No one of the senators from California, Nebraska, Oregon or Pennsylvania in these five Congresses had ever seen service in the lower house. On the other hand, every one of the senators from Maine, Massachusetts and Iowa had served a long apprenticeship of from three to six terms in the House. The exceptional influence, quite out of proportion to their population, which these three States have exercised in the Senate, is to be attributed, in no slight measure, to such preliminary training and to the long continuity of service which they have accorded to their senators.
A more largely attended preparatory school for sena- tors has been the state legislatures. Just one-half of the senators in these five Congresses had profited by such instruction. To make the data more precise, of the eighty senators who had been members of state
The Election of Senators 83
legislatures, forty had served in the lower house only, twenty-four in the state Senate; while sixteen had "taken the entire course" — had been members of both houses. Once more, it is to be suggested that this earlier experience had fitted them not only for the work of lawmaking, but also for the expert manipulation of elections from the legislatures of which they themselves had been members.
State governors have frequently been chosen as senators. Of the 159, twenty-eight, or 17.5 per cent., had served as chief magistrates of their States. This includes two territorial governors, who, of course, re- ceived their office not by election, but by appointment — Senators Squire of Washington and Warren of Wyo- ming. The promotion from the governor's chair to the Senate seems much more the normal order in some sections than in others : thus, of the senators from the North Atlantic States, only four had been governors; from the North Middle States, nine ; from the Western States, four; while from the Southern States there were eleven. Of these twenty-eight governor-senators, seventeen were veterans of the Civil War, and of the remaining eleven all but four were too young for en- listment. Every one of the eleven Southern senators who was old enough to do so, served in the Confederate army. This fact may raise the question, whether service as governor in itself has commended these men as senatorial candidates, or whether both honors have not been conferred upon them as a reward for patriotic service long since rendered. Twenty-two of these twenty-eight had had no experience in Congress, but eighteen had been members of state legislatures, while
84 The Election of Senators
five had served both in the state legislature and in Congress.
Other offices were well represented. Twelve had been judges, either in the federal or state system, some of the latter serving by election and some by appoint- ment. Six had been attorney-generals of their respec- tive States. Three had been secretaries of state; two, state treasurers; fourteen, members of state constitu- tional conventions ; five had been members of the cabi- net, three of them acting as secretaries of war. Twenty-nine, or 18.8 per cent., of the senators had per- formed the arduous duties pertaining to the office of presidential elector: nine of this number had been governors.
Highly significant is the stress which these bio- graphical sketches lay upon the services which these senators had rendered to their respective political parties. Fifty-six mention the fact of membership in some national party convention, and fifteen claim membership in national party committees; nineteen record the fact that they have presided over state party conventions; eight take pains to specify even service upon state party committees.
Sixteen of the senators mention no service of any prominence in any civil office, national, state or local, but do lay emphasis upon the work they have done for the party. The list is a varied one, containing sena- torial timber that may be considered good, bad, and indifferent. It is as follows :
Ankeny, Brown, Dryden,
Bard, Call, Fairbanks,
Brice, Clark, Hanna,
The Election of Senators 85
|
Heyburn, |
Pettus, |
Sullivan, |
|
Morgan, |
Smith, Teller. |
Taliaferro, |
It is noticeable that this acceptance of candidates on the basis of party service, rather than experience in public office, seems to be more characteristic of the South and of the West than of the North and East, and that certain States seem to be particularly addicted to the habit. Half a dozen of these senators make it their boast that they had never held public office until elected to the Senate. A few senators came to their high office with no previous experience in the public service and with no party claims that they have cared to mention. Such are the following :
Beveridge, Kittredge, Smoot,
Cockrell, Martin, Turley,
Foster, A. G. Smith.
Of the 159 senators, fifteen made their first entrance to the Senate upon appointment by governors for unex- pired terms caused by the death or resignation of the previous incumbents, serving only until their seats should be filled by legislative elections. At the ensuing sessions of the legislatures, all but two of these fifteen were forthwith elected. In one case, Senator Ross of Vermont, the appointee was over seventy years of age at the time of entering the Senate, and his appointment was probably considered complimentary ; in the other case, although Senator Chilton of Texas failed to secure an immediate election at the hands of the legislature, his biographical notice significantly records that two years later he made a canvass of the State — after
86 The Election of Senators
which he was elected by the legislature without practi- cal opposition. That so large a proportion of guberna- torial appointees should have received prompt indorse- ment from the legislatures in the form of regular elec- tions to the Senate, indicates that, in these States, the executive and legislative branches of the government were in accord, but also that the governor not only knew how to forecast with accuracy the legislators' preferences, but was willing to make concessions thereto. This astonishing prescience is doubtless often due to the governor's appreciation of the fact that it could not fail to disturb the harmonious relations which it behooves him to cultivate and to maintain with the legislature, if he should seem to obtrude upon that body a senatorial candidate, backed by the influence and pres- tige arising from actual possession of the seat, whom he knew to be persona non grata to the legislature.
The autobiographical sketches in the Congressional Directory leave us in the dark on divers points in which the public persists in taking an interest. Of late years it has become very common, both in conversation and in the press, to refer to the Senate as the "Rich Men's Club," the "Paradise of Millionaires." Are these epi- thets justified ? Is the choice of our legislatures tend- ing more and more to fall upon candidates of great wealth? Has the Senate, therefore, become, or is it likely to become a coterie of rich men, from its very personnel disposed to represent "special interests," or the interests of a class, rather than those of the country at large ? These are questions of no slight importance. But men are no more eager to disclose their incomes to the editor of the Congressional Directory than to the
The Election of Senators 87
tax assessor. While accurate data cannot be obtained, the basis for a reasonable judgment may be secured.
A dozen years ago, Charles Dudley Warner gave it as his opinion that, among the eighty-eight senators of 1892, there were but six millionaires; sixteen were men of wealth ranging from $100,000 to $700,000, while the rest were men of moderate means, many of whom might fairly be called poor.'' From time to time, in popular handbooks, the attempt has been made to compile lists of men of great wealth throughout the country. An examination of two of these recent lists for the names of members of the Senate in the Fifty- eighth Congress, discloses the following results:
( I ) In a list * attempting to enumerate all those whose wealth is estimated as at least $300,000, occur the names of these twenty senators :
Aldrich (R. I.) Kean (N. J.)
Alger (Mich.) Lodge (Mass.)
Ankeny (Wash.) Millard (Neb.)
Clark (Mont.) Newlands (Nev.)
Depew (N. Y.) Piatt (N. Y.)
Dietrich (Neb.) Proctor (Vt.)
Dryden (N. J.) Smoot (Utah)
Elkins (W. Va.) Stewart (Nev.)
Fairbanks (Ind.) Warren (Wyo.)
Hanna (Ohio) Wetmore (R. I.)
It may be mere chance, or it may be a significant fact
* "The Attack on the Senate," in Century, Vol. 48, p. 374 (July, 1894).
• The Financial Red Book of America, published by the Finan- cial Directory Association (N. Y., 1903).
88 The Election of Senators
that from the States of New York, New Jersey, Rhode Island, Nebraska, and Nevada, both senators are found in this ^roup. In another hst,° "American Million- aires," these senators are enumerated :
Aldrich (R. I.) Kean (N. J.)
Alger (Mich.) Kearns (Utah)
Ankeny (Wash.) Lodge (Mass.)
Clark (Mont.) Millard (Neb.)
Depew (N. Y.) Proctor (Vt.)
Dryden (N. J.) Scott (W. Va.)
Elkins (W. Va.) Stewart (Nev.)
Fairbanks (Ind.) Warren (Wyo.)
Hanna (Ohio) Wetmore (R. I.)
This list includes the names of eighteen, or precisely 20 per cent, of the members of the Senate. Sixteen names are common to both lists.
Of course, for such data as these, no claim of great accuracy can be made, although the compilers of both lists declare that names have been given a place only after repeated revisions, and after the submitting of the names to expert opinion in the locality of which the men were resident. The fact that these classifications were made with no reference whatever to senatorial service entitles them to somewhat greater consideration. On the basis of these carefully made "guesses" the con- clusion is probably warranted that about one in every five members of the Senate is the possessor of wealth running well into the hundreds of thousands of dollars. This fact may or may not have had anything to do with his election. The most casual reading of these • World dltnanac, N. Y., 1902, pp. 135-146,
The Election of Senators 89
lists will note the names of men whose wealth is but the symbol and reward of their exceptional ability, men whose proved capacity for public service would have made them the probable selection of an intelligent legislature, had they been entirely dependent upon their salaries; side by side with these, appear the names of other men who never would have been thought of for senatorial honors but for their enormous wealth. The rich men of the first type include some senators whom the country could least afford to spare ; nor is the pres- ence in the Senate of those men whose election has been due solely or primarily to their great wealth an influence so corrupting to that body as is the presence of the few members whose names awaken no envious prejudice by appearing in lists of alleged millionaires, but who are making their public office a source of private gain — men who are in the Senate, not because they are, but because they hope to be, rich.
The most painstaking analysis of autobiographical data as to senators may, however, fail to reveal facts of great importance which are clearly to be seen by those under whose eyes the senators pursue their daily walk and conversation. Is it possible, then, to supplement the foregoing discussions as to the personnel of the Senate as affected in part, at least, by the process of its election, by a verdict upon the qualitative elements in the Senate?
The writer determined to attempt to secure such a
verdict " from a small jury made up of men qualified
" A somewhat similar analysis of the elements of the Senate appeared several years affo in an article entitled: "The Senate in the Light of History," Forum, Vol. 16, p. 272,
90 The Election of Senators
by position and experience to form exceptionally well- grounded estimates of what the senators from the sev- eral States actually stand for in the Senate of the United States — of the qualifications, the achievements which have commended Senator A to his peculiar constitu- ency, the state legislature, and have brought it about that he, rather than some other of a long list of sena- torial possibilities, was chosen to represent his State upon the floor of the Senate.
It is not to be denied that widely divergent views may be held both as to the scientific character of such an inquiry and as to the significance of the results which it might yield. One of the most eminent of American statisticians, who was consulted in regard to the proposed inquiry, greeted it with a blast of dis- approval. "Opinions! Opinions! I care not a snap of my finger for opinions! The scientist deals with facts!" Such was the gist of his criticism. A man of much influence in Washington replied to a request for counsel: "Touching the classification of senators, I fear to venture ; angels dare not tread there and stay in this town. It would be mere matter of opinion, and opinion too much influenced by prejudice, personal, political, or both."
But in most of our political relations in this govern- ment by the people, we have to get along without access to the books of the recording angel! In casting our votes we have to rely upon the common opinion, the repute in which the several candidates are held by the community. The chances are that the men whose opinions have entered into the following verdict upon the Senate had far more thoroughgoing information
The Election of Senators 9 1
as a basis for their judgment than nine out of ten of the readers of these pages in choosing between the can- didates for municipal office from their own home wards at the last election. Moreover, in political matters, opinions, whether right or wrong, are forces of high moment. At the present time, much of the agitation for change in the method of electing senators rests upon distrust of the product of the process now in use — upon the belief that in the make-up of the Senate men of statesmanship are few, while many men have secured their seats because of their money, or because of their sharp practice as politicians. The writer be- lieves that the deliberate judgment passed upon senators by a few close observers — based though it must be upon opinion, and not upon absolute knowledge — constitutes, nevertheless, a fact as interestingly significant, as well worth ascertaining and as important in its bearings upon American political development of the near future as are many of the facts which lend themselves more readily to the statistician's tabulation.
If objection is still raised to the significance of such a verdict on the ground that it rests merely upon opinion which is liable to prejudice, political or per- sonal, or both, it is to be remembered that this verdict represents not the individual opinion, but the concur- rent opinion of at least three of the five jurors. Per- sonal prejudices and idiosyncracies of judgment for the most part were dissipated upon the senators who re- mained unclassified ; the final verdict from so represent- ative and conservative a body stands for a consensus of opinion which may be found well worthy of con- sideration.
92 The Election of Senators
WHAT SENATORS REPRESENT. A CLASSIFICATION OF SENATORS IN THE FIFTY-EIGHTH CONGRESS,"
I. Statesmanship.
Men who combine high pubhc spirit with capacity for leadership — men whose service shows inde-
" It is obvious that the names of the men who are responsible for this classification cannot be made public. The full list is known neither to the publisher of this volume nor to any member of the jury, no one of whom has ever raised the question as to the identity of the men with whom he was collaborating. The writer is deeply sensible of their confidence, not less than of their cooperation. In assuming to vouch for the qualifications of the jury, the writer would say that he sought the opinions only of men of high standing, who speak with authority in their several callings. The reader is entitled to some further knowledge as to these men's special fitness, training or opportunity for their delicate and difficult task.
Each of the five men has spent many years in Washington, and was not only resident there throughout the term of the 58th Congress, but was in a position which necessitated close observation of the personnel of the Senate. One was in high administrative office under the federal government. A second was a member of the House of Representatives, and in that particular Congress was brought into exceptionally close touch with senators from all over the country. A third was an expert investigator who has been sent abroad in the service of one or more of the executive departments, and who is a regular con- tributor of leading articles upon American politics to American and foreign periodicals. The other two were Washington cor- respondents of many years' experience, whose work is one of the chief influences in forming public opinion throughout widely separated sections of the country. Two of the five were New England born and bred; one is a Pennsylvanian, one a South- erner and one is not of American birth. At the time they were asked to help in this matter, except in the case of the Congress- man, the writer had no intimation as to their political affiliations, nor did he know their attitude upon the question of the popular election of senators. He has learned since the verdict was ren- dered that three out of the five list themselves as Republicans and
The Election of Senators 93
pendence of thought, courage and some outlook beyond mere partisan advantage — men who most nearly uphold the "best traditions of the Senate" :
Allison, Daniel, Lodge,
Bacon, Fairbanks, Morgan,
Bailey, Foraker, Piatt, O. H.,
Beveridge, Frye, Spooner,
Cockrell, Hale, Teller.
Culberson, Hoar, — 17 ■
Average service, 6.9 years.
one as a Democrat; the fifth, who is not an American, declares that he "has no politics." Three are gravely doubtful whether popular election of the Senate would be of advantage, while two are heartily in favor of the change.
To each of the five jurors were sent descriptive classification heads, under which they were requested to classify the members of the Senate of the first session of the 58lh Congress. The senators of that particular group were chosen that the list might include the members of the last Congress which has com- pleted its record, and that it might include as few senators as possible who had been appointed to fill vacancies.
The writer's task has been merely the collating of the lists made out by the individual jurors; in no respect whatever has his personal opinion colored the verdict. That the jurors have found their task not an easy one, and that they have worked at it with a conscientious determination to make their estimates of the senators as justly discriminating as possible, is evident from the suggestions and comments which have come from each member of the panel.
These comments may serve to illustrate the spirit in which the verdicts have been rendered :
a. "There is ; a man of great leadership, of tremen- dous capacity and broad vision, and yet, in so many respects, so typically the politician and the representative of corporate wealth, that clearly he cannot be placed in Class I. Yet in that Class
I include for the reason that, although came to
the Senate as a politician, since then he has broadened and grown with the measure of his responsibility; he has shown
94 The Election of Senators
II. Men of the Rank and File.
Men of fair ability, but of no proved capacity for leadership — men who do the best they can, ac- cording to their Hghts, and thus fairly represent the average American citizen, the stuff of which majorities are made:
|
Bard, |
Dubois, |
McCumber, |
|
Carmack, |
Gamble, |
Nelson, |
|
Clapp, |
. Hansbrough, |
Patterson, |
|
Clay, |
Heyburn, |
Perkins. — 12. |
Average service, 6.9 years.
Men whom three votes placed either in /. or //.;
Burnham, Dolliver, Pettus,
Clark (Wyo.), Gallinger, Proctor,
Cullom, Long, Quarles.
Dillingham, McComas, — 11.
Average service, 8.7 years.
capacity for leadership, independence and courage. is a
man of wealth, which would place him in Class III., and he is also affiliated with corporate interests, but he is not their tool and attorney on the floor of the Senate, as are some other senators."
b. After his lists had been sent in, there came a hasty note from one of the members of the jury, saying: "I would like to
change my designation of Senator from Class III. B.
(Representatives of Corporate Wealth) to Class I. (Statesmen). These things are all relative, all comparative, and he does not seem to me — on longer reflection — to belong to the same class with the other men whom I have put into that group. He is on the border line between the two classifications; but I prefer to give him the better one."
c. "One of the most difficult men to classify, under your
schedule, is . Nominally he stands for the 'best thought
of the Senate,' but he is the author of no constructive legis- lation ; he has not shown capacity for leadership ; he is
The Election of Senators 95
III. Wealth.
A. Rich Men.
Perhaps not "merely rich men," but men who give color to the charge that the Senate is becoming a "Millionaires' Club." Men whose presence in the Senate finds its chief, if not its sole expla- nation in their great wealth :
Alger, Dryden, Newlands,
Ankeny, Kean, Wetmore.
Clark, W. A., Kearns, —8.
Average service, 4.4 years.
B. Representatives of Corporate Wealth.
Men, whether of great wealth or not, whose pres- ence in the Senate is due chiefly to the fact that they are senators highly acceptable to great cor- porate interests. Men whose past career has proved them effective servants of corporate wealth, or who have given evidence that they may be relied upon for such service in the future, in the Senate :
Depew, Martin,
Elkins, Stewart. — 4-
Average service, 1 1 years.
Others falling within III., A or B:
Scott, Warren. — 2.
Average service, 8 years.
narrowly partisan ; he is a spoilsman, although preaching civil service reform, and he controls a finely organized machine. Yet
he is not the politician of the or type. Still he
must stand with that unholy crew, which does not quite prop- erly classify him."
96 The Election of Senators
IV. Political Manipulation.
Men who are in the Senate because they are past- masters of the arts of the poHtician, to whom politics is a game which they play with the high- est skill, but with little concern for the interests of the public as compared with their own inter- ests and those of their clan :
|
Blackburn, |
McCreary, |
Quay, |
|
Burrows, |
Mitchell, |
Stone. |
|
Dietrich, |
Penrose, |
|
|
Gorman, |
Piatt, T. C, |
— 10.
Average service, 10.6 years.
Men whom three votes placed either in ///. or IV.:
Aldrich, Hanna, Kittredge,
Foster (La.), Hopkins, McEnery. — 6.
Average service, 8.2 years.
V. Accident.
Men upon whom, under normal conditions, the choice would never have fallen, but who have been swept into the Senate by some wave of discontent in their several States, or as compro- mise candidates to break a stubborn deadlock in the legislature :
Allee, Ball. —2.
Average service, 2 years.
VI. Past Services.
Men who have been elected to the Senate or are continued in the Senate for their present term, not from any anticipation of high service in
The Election of Senators 97
the present or future, but because of grateful remembrance of services rendered in the past :
Bate, Berry, Hawley. — 3.
Average service, 20.7 years.
VII. Unclassified.
Men who have as yet made so httle impression as to afford sHght basis for placing them, and men upon whose classification there was no agree- ment:
Burton, Millard,
Clarke (Ark.), Money,
Foster (Wash.), Overman,
Fulton, Simmons,
Gibson, Smoot,
Latimer, Taliaferro,
Mallory, Tillman. — 15.
McLaurin,
Average service, 4.5 years.
Someone has referred to the Senate as the "high school of statecraft." These classifications evidence a conservative hesitance to assign either a very high or very low grade to the pupils who had not been in attendance upon this school long enough to prove clearly their character and ability. Most of the men in regard to whom there was no consensus of opinion are freshmen in that high school, for only three of them had entered upon their second terms, and but one had served a period of ten years. Their average service was only four and one-half years, while that of the
98 The Election of Senators
"men of the rank and file," and of those on the border line between Classes I. and 11. , ranged from seven to nine years. In comparison with most of the great careers in the Senate, these periods are short, and they indicate that, in the opinion of the jurors, many of these men were still in the school on probation, as it were, and had not yet clearly revealed what they might come to represent.
On the other hand, the average service of the men listed as statesmen was over seventeen years ; in fact, but one man was admitted to this class who had not com- pleted his first term in the Senate, and he had proved his powers of leadership in successive terms as a member of the House. Nor have the jury agreed in listing as representatives of corporate wealth or as machine poli- ticians men who have not had abundant time and oppor- tunity in the Senate to win for themselves a far more creditable standing ; the average service in each of these groups was practically the same — eleven years.
The significance of the foregoing analysis is to be found not merely in the personnel of the various groups, nor in the distribution of their members among the sev- eral States, but also in the proportion which the several groups bear to each other. Thus, the senators about whom there was no consensus of opinion constitute one in six of the total membership of the Senate. Four out of every nine senators are listed either among the states- men or among the men of the rank and file. These are classes, enrollment in which implies, if not high powers of leadership, at least the qualities of courage, intelli- gence and integrity, which make "the man behind the gun" quite as essential to the winning of battles as is
The Election of Senators 99
the man who plans the campaign. On the other hand, in the opinion of these close observers, one senator out of every three owes his election to his personal wealth, to his being the candidate satisfactory to what is coming to be called the "System," or to his expertness in politi- cal manipulation — qualifications which make their use- fulness as members of the dominant branch of Congress decidedly open to question.
CHAPTER V
THE MOVEMENT FOR THE ELECTION OF SENATORS BY THE PEOPLE
A. THE GROWTH OF THE MOVEMENT FOR AN AMENDMENT.*
The tardy rise of the demand that senators be elected by popular vote is hardly less remarkable than the rapid growth which that demand has attained in the few years since it really bej^^an to attract public notice. Al- ready, in the Convention of 1787, James Wilson had spoken in no doubtful tone as the herald of a democracy which was to seek primarily to be a government by the people. Yet urgent demand for the popular elec- tion of senators has been confined to the past genera- tion.
The first decades of the nineteenth century wit- nessed a thoroughgoing democratization of the state constitutions: — terms of office were shortened; prop- erty qualifications, both for office and for the suffrage, were removed ; offices formerly appointive, particularly in the judiciary, were made elective; while governors and other officials, before chosen by the legislatures, came to be elected by the direct votes of the people. It
* The extent to which, without change of the fundamental law of the land, popular control of senatorial elections has been attempted and may be secured is discussed in the next chapter.
100
The Election of Senators i o i
was inevitable that a movement of such sweep should pass the bounds of the state system, and make itself felt as well upon the national government, where few more obvious points of attack presented themselves than the election of the senators by state legislatures. Yet up to the early seventies the agitation for this change was sporadic and desultory. As a proof, in all these eighty years there had been introduced in Con- gress only nine resolutions favoring the election of senators by the direct vote of the people.^ The example was set by Mr. Storrs of New York. On the 14th of February, 1826, in the House of Representatives he offered a resolution declaring it expedient that the Con- stitution of the United States be so amended that sena- tors be not appointed by legislatures, but chosen by the electors in each State having the qualifications requisite for electors of the more numerous branch of the state legislature. The mover seems to have had no special enthusiasm for his own measure, for he declared that his own opinion of its expediency must depend upon the opinion which the House should express on the other amendments which were then pending. At his request, accordingly, it was laid upon the table; and there it remained. Three years later, on February 19, 1829, Mr. Wright of Ohio proposed an elaborate amendment, the fourth clause of which provided that the Senate should be composed of two senators from each State, to be chosen for four years in such manner as the legislature might prescribe. This option, as to the method of choice, anticipated by more than sixty
*H. V. Ames. The Proposed Amendments to the Constitution of the United States during the First Century of Its History (pp. 24, 60-63).
I02 The Election of Senators
years a proposition which met with not a Httle favor in a later House,' but, at this time, it did not come to a debate. In 1835, ^ resolution similar to that of Mr. Storrs, nine years earlier, met with the same fate. Be- tween 1850 and 1855, five such resolutions were intro- duced, but none ever emerged from committee.
No man was more pertinacious in proposing^ the change in question than Andrew Johnson of Tennessee. Two of the resolutions already mentioned were intro- duced by him while a member of the House of Repre- sentatives. Again, in i860, as a senator, he renewed the agitation. In 1868, he sent a special message to Congress advocating the measure; and in his annual message of the same year repeated the recommenda- tion. With Johnson, this amendment was part of a scheme of Democratic change; for he usually put it forward with a proposal for the direct election of President and vice-president by the people, and for a 12-year term for members of the federal judiciary. His messages * speak of the objections to the election of senators by legislatures as so palpable as to make their enumeration unnecessary; and he declared that the choice of senators directly by the people would be more consistent with the genius of our government. But, in the years from i860 to 1870, there were more momentous issues; and even if President Johnson's advocacy had been calculated to commend the measure to the favorable attention of Congress, little room was left for consideration of such a change in the Consti- tution.
'Infra, p. 117.
*July 18, 1868; December 9, 1868.
The Election of Senators 103
In the seventies, however, a marked increase in the number of the resolutions began. Six were presented in the Forty-ninth Congress, and the same number in the Fiftieth. In the first session of the Fifty-first Con- gress, nine proposals of such an amendment were offered, and petitions and memorials in its favor came in from all over the country. In the Fifty-second Con- gress, three similar amendments were proposed in the Senate by those indefatigable advocates of the move- ment. Senators Palmer of Illinois, Turpie of Indiana and Mitchell of Oregon. In the House, seventeen similar amendments were introduced by as many differ- ent representatives from as many different States, and, from that time to the present not a Congress has passed which has not been beset by new petitions and memorials urging that an amendment with this ob- ject be submitted to the States. The bare statistics of these proceedings would be without interest. It will suffice to point out a few phases of the move- ment.
In Congress from the first, for reasons which will readily suggest themselves, the agitation in favor of the proposed change has been primarily in the House — not in the Senate. Scores of memorials and petitions urging such an amendment had been referred to the committee on election of President, vice-president and representatives in Congress, and there had met their quietus. But, finally, in 1892, in the first session of the Fifty-first Congress, that committee reported fa- vorably a joint resolution for the submission of the desired amendment to the States.
Five times such a resolution has been reported and
1 04 The Election of Senators
brought to a vote in the House, and in every case the result has been overwhelmingly in its favor.
HOUSE VOTES UPON SUBMISSION OF AMENDMENT FOR POPULAR ELECTIONS.
|
Congress. |
Date |
Aye. |
No. |
|
|
52d. |
Jan. 16, |
1893. |
Two-thirds. |
|
|
53d. |
July 21, |
1894. |
141 |
51 |
|
S5th. |
May II, |
1898. |
185 |
II |
|
56th. |
April 13, |
1900. |
240 |
15 |
|
57th. |
Feb. 13, |
1902. |
Two-thirds. |
In the first and last instances, the yeas and nays were not called for, and the record is simply to the effect that two-thirds having voted in its favor, the resolution was passed. In the three cases where the vote is recorded, as will be noted, the majority in favor of the amendment has constantly and rapidly increased.^
In the Senate the record has been much the same. Petitions for an amendment providing for popular elec- tions for senators were for many years referred to the committee on privileges and elections before it saw fit to report upon them. In the Fifty-second and Fifty- third Congresses, minority reports were submitted fa- voring the amendment; and in the Fifty-fourth Con- gress (June 5, 1896), the committee reported a joint resolution, and strongly urged its adoption by the Senate. The first speech in the Senate specifically devoted to advocating a measure of this kind was made in 1887 by Senator Van Wyck of Nebraska. Its occasion may perhaps be discovered in the fact that he had just suffered defeat at the hands of the Legislature for reelection to the Senate, after having polled a majority of nearly 10 to
^ Infra, pp. 112, 256-258.
The Election of Senators 105
I — 46,110 out of 50,448 — of the popular vote in an election authorized by the novel provision of the Nebraska Constitution of 1875.^ Such an amendment has also been ardently advocated, as has been said, in season and out of season, by Senators Mitchell, Palmer and Turpie; but never yet has it proved possible to bring the Senate to a vote upon the main question.
Meanwhile, the rising sentiment in favor of this constitutional amendment has manifested itself in many ways the country over ; and with ever-increasing force has pressure been brought to bear upon Congress to submit it to the States. Individual citizens have urged it. Scores of farmers' associations, "granges," and otheir local organizations, particularly in the West- ern States, have sent in their petitions for it. In state elections it has become a favorite "plank," particularly in the platforms of the Democratic and Populist parties.'^ Finally, the national parties have taken it up. It has appeared in the platform of the People's Party at every election, beginning with 1892; and in the platform of the Democratic Party it found a place in 1900, and again in 1904.
DEMAND FOR POPULAR ELECTION OF SENATORS IN NATIONAL PARTY PLATFORMS.
1892. People's Party. 1896. People's Party.
National Party. (Seceders from Prohibition Party.)
•Art. 16, Sec. 312, infra, p. 141.
' As early as 1892 this measure was approved in five Democratic and two Republican State platforms. In Oregon both parties demanded it.
1 06 The Election of Senators
i8q6. Social Labor Party." 1900. Democratic Party.
People's Party. (Fusionists.)
People's Party. ("Middle-of-the-Road.")
United Christian Party.
Silver Republican Party. 1904. Democratic Party.
People's Party."
Prohibition Party.
But the Constitution of the United States is not to be amended by the easy process of signing petitions or indorsing resolutions in party conventions. It must always wait upon the action of Congress and of the States. But which shall take the initiative? As early as 1874, the legislatures of both California and Iowa set the example of addressing Congress in favor of an amendment providing for the election of senators by the people. Since 1890, this action has been widely imitated. Before memorializing Congress upon the subject, the legislatures of three States have provided for a formal test of the sentiment of the voters of their States by a referendum at a general election, with results as follows:
REFERENDA ON POPULAR ELECTION OF SENATORS.
State. Year. For. Against.
California. 1892. 187,958 13,342
Nevada." 1893. 6,775 866
Illinois. 1902. 451,319 76,975
The accompanying table shows the action taken by the several State legislatures in indorsing the demand for this amendment.
' Demands "the abolition of the United States Senate and of all upper legislative chambers." •Demands "the direct vote for all public officers." " The preamble of the Nevada Act authorizing the referendum
TABLE I.
Action Taken by State Legislatures in Favor of an Amendment providing for the Election of United States Senators by the Di- rect Vote of the People.
The significance of this Table lies in the followmg pomts :
(a) The geographical distribution of the demand for this amend-
ment. The North Atlantic States are here in sharp con- trast with the others.
(b) The recurrent waves of demand for the amendment, culmi-
nating in 1893 and in 1901. These periods of many reso- lutions will be found to bear a close relation to periods when deadlocked elections, or vacancies, or senatorial scandals have been much in the public mind.
(c) The changed form in which the States address Congress.
Since Pennsylvania started the movement in 1899, with great unanimity the States have turned from the old to the untried method of initiating constitutional amend- ments; instead of requesting Congress to submit the amendment, they have applied to Congress to call a con^ vention for the purpose of proposing this amendment. Infra, pp. 122-124. The State legislatures' resolutions ex- plicitly state that this form has been adopted because of the obstructionist attitude taken by the Senate in five times refusing to act upon the resolutions proposing this amendment, which have been passed by the House. Supra, p. 104.
(d) It will be seen that within the last fifteen years, in one form
or another, approval of direct election of senators by the people has been signified to Congress by the legislatures of thirty-one of the States — more than two-thirds re- quired by the Constitution for the initiation of an amend- ment to the Constitution. Infra, p. 1 14.
ABBREVIATIONS.
p. A. — ^Joint resolution requesting Congress to propose such an
amendment. S. /4.— Joint resolution requesting Congress to submit such an
amendment. Ref.—hn act providing for a referendum, at the next general
State election, on the question, whether senators should
be elected by direct vote of the people. Cow/.— Joint resolution providing for conference with other States
to secure their co-operation in furthering such an amend- ment. C. C— Joint resolution asking Congress to call a convention to
propose such an amendment.
107
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109
no The Election of Senators
At a glance it will be seen that the demand is wide- spread, and yet, to some extent, localized. In the North Atlantic States, the only one whose legislature has indorsed the movement is Pennsylvania; but it is to be added that the action taken by Pennsylvania in 1899 gave both a new impetus and a new direction to the propaganda." Among the Southern States, on the other hand, only four have not yet called upon Congress to act in the matter; and of the North Central States, and the Western States, every legislature has at least once sent its memorial or petition to Congress; and several have importuned every Congress for the last eight or ten years.
In short, thirty-one state legislatures have already signified to Congress their urgent desire that steps be taken to initiate this amendment. Nor is this an ade-
read as follows: "Whereas it is expedient that the wishes of the people of this State upon the subject of the election of United States Senators should be unmistakably expressed, ..." it was provided that a memorial of the vote be sent to the Presi- dent, Vice President, members of Congress and to the Governor of each State.
In Illinois the vote was taken under the provisions of an Act passed the previous year, "providing for an expression by electors on questions of public policy at any general or special election," and was submitted in the following form:
PROPOSED QUESTION OF PUBLIC POLICY. Shall the next General Assembly take the necessary steps, under Article 5 of the Con- stitution of the United States, to bring about the election of United States Senators by the direct vote of the people ?
Infra, p. 122.
YES.
NO.
The Election of Senators 1 1 1
quate gauge of the sentiment in favor of popular elec- tion of senators. In not a few of the States which have not petitioned Congress, the reason is, not that the object of the amendment is disapproved, but that, as in such States as Alabama and Mississippi, the nomi- nation and even the election of senators have already in large measure been subjected to popular control." Often, too, these resolutions are doubtless crowded out by more pressing business. Thus, in 1901, the Tennes- see House, and, in 1903, the Minnesota Senate, passed such resolutions unanimously. As the legislatures of both States had, in previous years, indorsed such action, it is probable that the concurrence of the other House was not secured in these particular years simply because it was not deemed essential to push through a measure which only reiterated former action. Moreover, even in such conservative States as Massachusetts, the agita- tion is not without vigor. Hardly a year passes when a joint resolution upon this subject is not voted upon, and in 1900 a resolution declaring that it was desirable that United States senators be elected by popular vote was passed by the House by a vote of 81 to 54, but was rejected by the Senate, 9 to 23. Even in Delaware, in the midst of the deadlock " — broken by the compromise between the regular Republicans and the Addicks fol- lowers— the House voted unanimously in favor of a resolution urging Congress to call a convention for the purpose of amending the Constitution in this regard. But in the Senate the resolution was lost by a vote of 6 to II.
"Infra, p. 140. "February 25, 1903.
112
The Election of Senators
The sentiment in favor of amending the Constitu- tion so as to provide for the election of senators by the people has, therefore, now been tested by the five votes in the House of Representatives; by the referenda in the three States where the question has been brought to a direct popular vote ; and, finally, by the action taken by the state legislatures. It may be of interest to sup- plement this presentation of the legislatures' action by a table showing the last recorded vote upon the subject in the House of Representatives, analyzed by States. It will be seen that opposition or even indifference reveals itself here neither in the same proportions, nor with the same clean-cut geographical distribution as in Table I.
TABLE II.
Vote in House of Representatives, April 13, 1900, on a Resolu- tion Proposing an Amendment Providing for the Election of Senators by Direct Vote of the People:
State.
North Atlantic —
Maine
New Hampshire. . 2
Vermont 2
Massachusetts .... 7
Rhode Island 2
Connecticut
New York 18
Pennsylvania 20
New Jersey 4
Delaware i
Maryland 4
North Central —
Ohio 16
Indiana 10
Illinois 15 I
Michigan 11 i
Yea. Nay. " Present.
Not Voting.
15
Unaccounted For.
The Election of Senators
113
State. Yea. Nay.
Wisconsin 3
Minnesota 6
Iowa 5
Missouri 12
Kansas 7
Nebraska 5
Southern —
Virginia 7
West Virginia 3
North Carolina. .. 8
South Carolina. .. 7
Georgia 10
Florida i
Alabama 6
Mississippi 4
Louisiana i
Arkansas 5
Texas 10
Tennessee 8
Kentucky 10
Western —
California 4
Oregon i
Nevada I
Colorado 2
North Dakota I
South Dakota. ... 2
Montana
Washington 2
Idaho
Wyoming i
Total 244 15
Present.'
Not Voting.
7 I I 3
Unaccounted For.
Thus, of the North Atlantic States. Pennsylvania is the only one whose legislature has memorialized Con- gress in favor of this measure; yet, in Conoress, the delegations of only two of those eleven States actually
114 The Election of Senators
voted against the resolution. In another respect, the contrast between the two expressions of pubhc senti- ment is yet more striking. Taking the votes of the rep- resentatives from the fifteen States whose legislatures have not yet urged this change, this surprising result presents itself: In five of these state delegations, the vote was unanimously in favor of the resolution; in seven more, every vote cast was in its favor; only in three was a negative vote recorded, and in one of those, New Jersey, the single vote in opposition was far out- weighed by those of the other members from that State. But, in the Maine and Connecticut delegations, not a single vote was cast in its favor. In the case of the former, this result may represent the individual judgment of several congressmen well known for their independence of thought and action. In the Connecticut delegation, on the other hand, there can be little doubt, this surprising unanimity^* is an outgrowth of Con- necticut's antique system of representation, by virtue of which the hill-towns' dominance in the legislature in- sures the election of Republican senators — a result which would often be placed in doubt if the election were made by the direct vote of the people.*"^
Upon this issue, then, in which way is the sense of the people best represented, by the action taken (or refused) by state legislatures in their address to Congress, or by the votes of the members of Congress directly upon the resolution for submitting the amend-
" In the vote of 1898, all four Connecticut congressmen voted 'No' ; in 1900, one evaded the question to the extent of answering 'Present'
" Supra, p. 65.
The Election of Senators 1 1 5
ment to the States ? ^^ By the one, thirty-one States are recorded in its favor, while fourteen are neutral, or in opposition. By the other, with but two exceptions, every State in the Union has given it emphatic indorse- ment."
B. THE FORM OF AMENDMENT.
The progress of this movement for popular elections of senators has been accompanied by certain signifi- cant changes in the proposed form of constitutional amendment ; and by modifications in the methods advo- cated both for its initiative and ratification — due, in part, to changes in public opinion, and, in part, to unex- pected obstacles which the movement has encountered. The earlier propositions for amendments coupled the election of senators with that of the President and vice- president. It would seem, therefore, that the first de- mand arose not from experience of any abuses, but simply as a matter of democratic theory. Most of the state governments had been thoroughly democratized, so that they seemed to spring directly from the people. But, in the federal system, there yet remained offices beyond their immediate touch. Was it not a grave inconsistency that these were not brought within reach ? Was it not an affront to the intelligence of the people that they were not intrusted with all power? It was such considerations as these which appealed to the radi- cals of the middle of the century.
During the past ten years, however, the agitation has been pretty generally narrowed down to the de-
i5»For a discussion of the extent to which these votes really represent a "popular demand," infra, pp. 256-258. '• For the recent action of the Iowa legislature, see p. 129.
1 1 6 The Election of Senators
mand for the popular election of senators. To what causes this change should be attributed is not clear — whether to the rise of a belief that popular elections of other federal officers are, at present, unattainable, or undesirable; or to a feelinp^ that democratic progress can best be achieved one step at a time, and that the securing of popular election of senators is the shortest, or the one easiest to take; or to a conviction that the growing prevalence of abuses in senatorial elections has made a change in their method imperative. At any rate, the amendments which have been favorably voted upon by the House of Representatives, have, with little variation in form, provided that United States sena- tors shall be elected in each State by the electors thereof ; that a plurality shall elect; and that, in the case of a vacancy, temporary appointments may be made by the governor in accordance with the statutes or constitu- tion of that State.^"* At times, this resolution has been antagonized by disingenuous amendments or substitute measures. For example. Senator Depew blocked all chance of the pending measure's passing the Senate by attaching to it an amendment that the qualifications of citizens entitled to vote for United States senators and representatives should be uniform in all the States, and providing for unrestricted federal control of such elec- tions.*^ At another time. Senator Penrose introduced, as a counter-irritant, a bill providing that States be represented in the Senate approximately in proportion to population, each State having at least two. If the purely obstructionist nature of each of these proposi- tions were not evident at a glance, it would be sug-
^^ Infra, Appendix I., p. 271. " Infra, p. 250.
The Election of Senators 1 1 7
gested by the fact that neither takes account of being flatly in the face of other clauses of the Constitution than the one in amendment of which it was urged.
The only important variation from the ordinary form of the amendment is one that has been repeatedly brought forward in the House of Representatives. It first made its appearance there seventy-five years ago, but it passed out of mind and was not heard of again in Congress until introduced in the early nineties by Mr. Bryan. In 1892, it was urged in a minority report from the committee on election of President, Vice-Presi- dent and Representatives in Congress; in 1898, it was incorporated in the report of the committee. This is the provision for the so-called option. In its simplest form it proposes that the present clauses of the Consti- tution relative to the election of senators remain un- changed, and that there be added the following: Pro- vided, That such senators may be elected by a direct vote of all the electors of any State qualified to vote for mem- bers of the most numerous branch of the state legisla- ture, whenever such State shall, by law, so provide.^'
"The theoretical ground advanced in favor of this option is that it is more considerate of the States. Instead of prescribing in dictatorial fashion the method in which the States shall elect their senators, it opens to them an opportunity, if they prefer popular elections. It savors, thus, less of centralization and the suppression of State initiative. The principal arguments used in its favor in Congress, however, were not those of principle, but of expediency. In the fir.st place, it was urged, it would secure the advantage of reserving to individual States the power to experiment, and thus to test for themselves and for observant sister States the working of popular election in comparison with the present system. Thus, it would not be necessary to abandon the familiar form of election and at once become bntnid hard and fa$t to a new method, the results of which might
1 1 8 The Election of Senators
At its last appearance this proposed option, though rec- ommended by the committee, was defeated ^® by the decisive vote of 185 to 11. There can be no doubt that,
prove unsatisfactory. In the second place — and this was what chiefly recommended it to the friends of the measure — the option would serve as a buffer against federal control of elec- tions The Republican party still stood by its advoc^y of federal control and insisted that it would be inevitable as regarded senatorial elections, if they were to be put into the hands of the people. To the Democrats such control was so obnoxious that, if it were to be imposed, many would lose all enthusiasm for the election of senators by the people. Federal control has never been asserted over the elections in state legislatures. The States, therefore, to whom central control was most repugnant, could avoid it by retaining legislative elections.
Moreover, if popular elections of senators were to obtain in only a part of the States, it was hoped that the ardor of Republicans in Congress for federal control might be so far diminished that it would not be asserted. But, if a new and more sweeping Force Bill should at any time be threatened, after popular elections had become prevalent under the pro- posed amendment, then the opportunity would still be open to avoid federal restraint, for the legislature of the individual State could regain its independence in its senatorial elections by restoring them again to the hands of its legi.slature. It was claimed, also, that by reducing the probability of a con- troversy over federal control, it would remove partisanship from the discussion of the measure, and make it far easier to secure the assent of Congress, inasmuch as members would vote for it more readily if the proposition of popular elec- tions stood by itself, not as a thing to be thrust upon the States, but as an opportunity which they might accept or not, as they pleased. Finally, it was urged that the ratification by the States would be much more easily secured, first, because the measure, freed from partisanship, would not be opposed in the State legislatures by the boss and by corporate interests, and, secondly, because