CHAPTER V.

AMENDMENT OF THE DIRECT PRIMARY LAW.93

The 1909 Measure Was Amended to Provide that United States Senators Shall be Nominated Under the Oregon Plan, and the Provisions Which Placed Unnecessary Burdens Upon Primary Candidates for Office Were Stricken From the Law.

The two principal objections made by the Progressive element to the Wright-Stanton Direct Primary law, as passed at the 1909 session, were:

(1) That unnecessary partisan provisions and restrictions made it difficult for a citizen to become a candidate for office.94

(2) That the measure contained no practical provision for the nomination of United States Senators by direct vote of The People.

Although these defects were recognized, the anti

93 For the manner in which the undesirable features of the 1909 Direct Primary law were forced into that measure, see "Story of the California Legislature of 1909," Chapters VIII, IX, X, XI.

94 The effect of this partisan feature was well illustrated at the San Francisco municipal primaries in the summer of 1909. Francis J. Heney attempted to become a candidate for the office of District Attorney. The situation in that city required that Heney be elected District Attorney in order that vigorous prosecution of bribe-givers might continue. Heney had voted for Taft at the previous election. He could not, therefore, under the extreme partisan features of the Direct Primary law, become a primary candidate on any ticket but the Republican.

Recognizing this, the corrupt_element at San Francisco registered even Union Laborites and Democrats who could be forced to such a course, as Republicans. Reputable Republicans were fairly

machine leaders hesitated about announcing definite policy for their correction.

This was particularly true of the defect in the law in the matter of nominating Senators by direct vote, and making that vote effective and binding.

Although the reform leaders at the 1909 session of the Legislature recognized that the only practical method of naming United States Senators by direct vote is under the Oregon plan, they were prepared to compromise with the machine on this issue, and, as a matter of fact, although it was discussed, the Oregon plan was at no time provided in the Direct Primary measure which was considered at that session. As was seen in the previous chapter, the best that the anti-machine element asked for at the 1909 session was a State-wide vote-within the several parties-for United States Senator, and the machinery to make the result of the vote binding.

When the Lincoln-Roosevelt Republican League held their State meeting at Oakland in November, 1909, instead of declaring for the Oregon plan, the League took the same uncertain position attempted by the anti-machine element at the 1909 session, and announced itself

swamped by the collection of miscellaneous political scum that went on the Register as members of the Republican party.

For Heney to have run as a Republican would have meant his defeat. Under a second provision of the codes, Heney, defeated at the primaries, could not have become an independent candidate. Accordingly, Heney, blocked by the provisions of the Direct Primary law, did not enter the primary race at all.

The Democrats of San Francisco wanted Heney nominated, but under the partisan provisions of the Direct Primary law were denied the privilege of putting his name on their primary ticket. But there was no law against individual Democrats writing Heney's name on their primary ballots. This they did. Enough of them did so to make Heney the Democratic nominee for District Attorney.

Under the terms of the Direct Primary law, Heney's name could not have been placed on_the_Democratic primary ticket.

As a matter of fact, the Democrats nominated him.

as favoring the compromise, within-the-party plan which had been provided in the original draft of the 1909 Direct Primary measure.95

In spite of the fact that the machine had been routed at the 1910 primaries, the reform leaders were apparently afraid to take positive position on this important question. Although in control of the Republican State Convention, and declaring for the policy of electing United States Senators by direct vote, the Progressives who framed the Republican State platform failed to declare definitely for the Oregon plan.96

Even after the final election, the Republican State Senators who met at Santa Barbara hesitated about announcing for the Oregon plan, and did not. And the Committee appointed by the Republican State Central Committee to propose amendments to the Direct Primary law, very carefully refrained from recommending

95 The League's declaration of principles contained the following provision for the popular selection of Federal Senators:

"We demand that the next Legislature adopt in proper form and transmit to Congress an act or joint resolution favoring amendment to the Constitution of the United States providing for the election of United States Senators by direct vote of the people, and pending the adoption of such amendment we urge that the existing primary election law be so amended as to afford a Statewide advisory expression of party opinion as to their election."

96 The plank in the Republican 1910 State platform on the elec⚫ tion of United States Senators, reads as follows:

"We recommend the enactment by the next Legislature, and transmission to Congress, of an act or joint resolution favoring an amendment to the Constitution of the United States, providing for the election of the United States Senators by direct vote of the people, and pending the adoption of this Federal amendment, such a revision of the primary law of the State as shall afford a State-at-large advisory vote as to the election of United States Senators."

the Oregon procedure 97 but clung to the "within-theparty vote."

The Reactionary press was quick to take advantage of this hesitancy.

Soon after the meeting of State Senators at Santa Barbara, the San Francisco Call, in an editorial article 98

97 The committee's findings were:

"As respects the selection of a party nominee for United States Senator, the primary bill originally introduced differs from the present law in two important particulars. Your committee will attempt to discuss these in the abstract, irrespective of any pending situation.

"1st. The bill as first introduced provided for the test as to the selection of a candidate for United States Senator, that such candidate should receive the highest State-wide vote cast by his party on the proposition. The present law provides that the legislative candidate shall be bound either by the vote of his own district or by the vote of a plurality of districts.

"2nd, and most important, as it seems to your committee, the present law seeks to bind the legislator-elect to do one of two things on a matter which the Constitution commits to his discretion alone irrespective of the attempted compulsion of any statute. On the other hand, the bill as originally proposed, provided that the legislative candidate might do one of three things, in this provision differing from the present law by at once being a step toward a direct vote for Senator, yet at the same time following the Constitution by naming the only things the candidates could possibly do. The three things provided for the candidate to do were as follows:

"(a) He may covenant with his constituents that he will vote for that candidate for United States Senator who shall have received the largest State-wide vote in his party. This agreement when signed constitutes a moral obligation on the legislator-elect, which an extraneous statute cannot possibly provide. Moreover, it approaches within party lines nearest to the popular demand for a direct vote for Senator, and as such is almost universally signed by candidates in all States which contain the provision.

"(b) He may sign a statement to his constituents that he will regard the forthcoming State-wide advisory vote as recommendatory and nothing more, at the same time announcing to them that he will wholly disregard it if he sees fit.

"(c) He may neglect or refuse to do either of these things. "Recommendation. Your committee would recommend the elimination of the proviso in Section 2, sub-Section 1, relating to United States Senator, and the inclusion in Section 5, sub-Section 4, the provision above recited as occurring in the original draft of the bill. The committee so recommends, as it regards these provisions the only kind of provisions which are constitutional and legally binding as well as an agreement with the candidate's constituents, and therefore also morally binding."

98 The article was headed, "No Program for this Legislature, and no Leader but Johnson.' The article was so evident in its intent "to honey" Johnson into line as to be amusing.

intimated that an agreement had been made "by Johnson, Wallace and an impressive minority of the Senate, that the amendments to the Direct Primary election law shall be confined to remedying the defects pointed out in the State platform." The Call denounced the Oregon plan on the ground that the system "would take the United States Senatorship out of the realm of partisanship.'

99 99

Into the midst of this situation so well calculated to result in the defeat of a practical reform, came, as a new factor, Governor Johnson's inaugural address. Johnson did not hesitate. He pointed out that "notwithstanding the popular demand expressed now for a quarter of a century that United States Senators should be elected by

99 The Fresno Republican showed the weakness of the Call's position. "The Oregon system is in effect," said the Republican, "the exact system that would be brought about by the amendment to the Federal Constitution which both parties have endorsed, which the majority of the States in the Union, including California, have formally approved, and which the Call itself advocates. It would no more 'take the United States Senatorship out of the realm of partisanship' than the office of Governor, or Congressman is now out of that realm. It should leave partisan candidates for United States Senator to be nominated at party primaries, like all other candidates, and then to be voted for by their whole people at the general election, like all other candidates. The one difference would be that, pending an amendment to the Federal Constitution, candidates for the Legislature would have to pledge themselves (or run the risk of defeat for not pledging) to ratify the advice of the voters at the election.

"If we are going to have the direct choice of United States Senators at all, this is the way to get it. And however some of us may debate that issue academically, the American people have decided that they want the direct election of Senators, and we may as well submit to that decision. We shall have to do so, soon, anyway. Oregon has pointed the way, and the rest of us have only to decide whether we will go that way by one step, two or three. California has taken the first step of a three-step series. If, as seems likely, the Legislature will prefer to go the remaining way in two steps instead of one, taking only the one step now, we have no objections. It is a purely practical question of how fast The People are ready to move. If it is easier to move slow than fast, let us move slow. But why should any one, thinking ahead and viewing the question as a whole, blink his eyes to the plain fact that there is no stopping until we go the whole Oregon way, and no reason except public inertia (if it be determined that exists) why we should hesitate to go the whole way now?"