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be given a practical State-wide vote for United States Senator, and provided with the machinery by which each candidate for the Legislature could be bound to abide by the decision of The People, when, as legislator, he cast his vote for United States Senator.
Upon this last provision, the anti-machine members insisted. Inasmuch, they contended, as the Legislature can not be legally bound to observe the will of The People in the election of Federal Senators, any more than the Electoral College can be legally bound to elect the choice of a political convention to the Presidency, it is necessary to give the candidate for the Legislature opportunity to obligate himself,65 to abide by the decision of
placed on the ballot at the final election, as are the nominees for other offices.
That candidate who at the final election receives the highest vote for United States Senator is declared to be the choice of the electors.
To compel observance of this choice, each candidate for the Legislature is given opportunity to sign one of two statements. The first sets forth that the signer will abide by the popular choice when, as a member of the Legislature he casts his vote for United States Senator; the second, that he will regard such nomination as only a recommendation. The legislative candidate is not bound to sign either statement. But it would probably be difficult for any candidate who refused or neglected to sign the first-named to secure election.
The compromise California plan of 1909-which was defeated by the machine-provided the alternative statements-or contracts -for the legislative candidate to sign, but these statements bound him only to vote for that senatorial candidate who had received the highest number of votes cast by his party at the primaries. Under this arrangement, had it been adopted, the senatorial candidates' names would have been placed on the primary ballot, but not on the final ballot. The electors of California would, under this proposed arrangement, however, have been given a Statewide vote within their party, and the candidates for the Legislature were given opportunity to enter into a contract with their constituents to be governed by the popular choice.
65 The form of the alternative agreements, or statements, which, under the original draft of the 1909 Direct Primary law, each candidate for the Legislature was given opportunity to enter, into what was to all intents and purposes a contract with his constituents to abide by the choice of his party for United States Senator, was as follows:
"I further declare to The People of California and to The People of the.... .(Senatorial or Assembly) District that during my
the polls. Without such obligation, the anti-machine Senators and Assemblymen pointed out, the section of the Direct Primary bill dealing with the Election of United States Senators, was meaningless, binding upon none, a blind and a sham, and provided at best the machinery for nothing more than a "straw vote."
On the other hand, the "machine" element at first very frankly attempted to strike from the Direct Primary bill all provision for nomination of United States Senators, leaving the election of Senators entirely at the discretion of the Legislature as had theretofore prevailed. Failing in this, the next move of the "machine" element was to strike from the measure all provision by which the candidates for the Legislature could, under regular and uniform agreement, obligate themselves to abide by the choice of the electors, and to substitute for the State-wide vote a vote by Senatorial and Assembly districts.
The anti-machine Senators denounced the proposed change as a subterfuge, intended to render the plan to
term of office, without regard to my individual preference, I will always vote for that candidate for United States Senator in Congress who shall have received for that office the highest number of votes cast by my party at the September primary election next preceding the election of a Senator in Congress."
If the legislative candidate did not care to sign this pledge, he was given the alternative of signing the following:
"I further declare to The People of California and to The People of the........ (Senatorial or Assembly) District that during my term of office I shall consider the vote of The People at any primary election for United States Senator as nothing more than a recommendation, which I shall be at liberty wholly to disregard, if I see fit."
The candidate for the Legislature was not required to sign either agreement. That was left to his discretion. But with public sentiment in California on the question of the election of Federal Senators by direct vote what it is, no candidate for the Legislature who failed to sign the first agreement could hope for election.
give The People a voice in the election of United States Senators impractical and inoperative.66
On this ground, the anti-machine Senators and Assemblyman combated the proposed change.
But in spite of this opposition, the machine element finally prevailed. The practical State-wide, pledge-sustained plan for nominating United States Senators was stricken from the bill, and the measure became a law with provision for the district, advisory plan.68
There were several reasons for the final outcome in this contest between the two factions at the 1909 session.
In the first place, the "machine" faction numbered among its members the cleverest parliamentarians and tricksters of the Legislature. Then, too, the "machine" controlled the organization of both Houses. But more important than all was the fact that at the most critical
66 "The district plan which Senator Wright and Senator Wolfe now advocate," said Senator Stetson in opposing the district plan, on the floor of the Senate, March 19, 1909, "is a little worse than no provision for the election of United States Senators at all."
67 See "Story of the California Legislature of 1909," Chapters VIII, IX, X, XI.
68 The position of the anti-machine Senators was well set forth by Senator Stetson in explaining his apparent acceptance of the machine substitute:
"Before voting on this matter," said Stetson, "lest any one in the future may think that I have been passed something and didn't know it, I wish to explain my vote, and wish to say that this permission accorded a candidate to go on record to support that candidate for United States Senator, who shall have the endorsement of the greatest number of districts, comes from nobody and goes to nobody. It means nothing-mere words-idle words. The only way in which a candidate could have been pledged would have been to provide a pledge or instruction to the Legislature. The words 'shall be permitted' mean nothing and get nowhere. I shall vote for this report, not because I want to, but because I have to if we are at this session to have any Direct Primary law at all."
Senator Stetson's quotation did not follow the exact wording for the substitute which was "shall be at liberty," instead of "shall be permitted."
point of the contest, Senator Leroy A. Wright," who had introduced the bill, and who had been looked upon as a leader of the anti-machine group in the Senate, went over to the Wolfe-Leavitt, or organization, or "machine," faction, and contended in opposition to his former antimachine associates, for the district, advisory plan.
In addition to this, the San Francisco Call,70 which up to that time had been regarded as a leader for the
69 Senator Stetson, on the floor of the Senate (speech before the Senate, March 19, 1909), expressed the views of his antimachine colleagues on Senator Wright's change of position. Stetson reviewed the history of the Direct Primary measure; told of the conferences which Senator Wright had had with the men whom Wright was then opposing; told how they had united, Senator Wright with them, to give The People as good a law as was possible under the conditions.
"But when I found," said Senator Stetson, "that Senator Wright is back in the camp of those whom he had given me to understand did not want any direct primary at all, or at best, an ineffective direct primary, I must confess that I was amazed beyond question.
"The very men who wanted nothing in the bill at all relating to the nomination of United States Senators, are now willing to accept the district plan. I am amazed that Senator Wright does not put two and two together and see this."
70 Senator Marshall Black, in a signed statement published at the time, arraigned "The Call" for that publication's change of attitude. "No decent primary law," said Black, "would have been possible but for the combination of thirteen Republicans and seven Democrats in the Senate who have stood together throughout this whole fight. Senator Wright and the 'Call' were powerless in the contest until these twenty Senators got behind them. "One of the conditions of this combination was a State-wide vote on United States Senator, and the 'Call' fought with us against Senators Wolfe and Leavitt on this proposition. Immediately after the bill left the Senate and got into the Assembly, the 'Call' began to display a lack of interest in the primary fight. If it had maintained its attitude in favor of the original bill these amendments never would have been proposed by the Assembly.
"When the question of concurring in the Assembly amendments comes up, we find the 'Call' and Senator Wright deserting the men who made the primary fight in the Senate and going over to the camp of the 'push' politicians, who have always favored the district plan of nominating United States Senators.
"I take issue with the 'Call' when it says: 'As a matter of fact, the whole question of the United States Senatorship is of little importance to the people of California,' etc.
"The United States Senatorship is the most important office to be filled by the people of California under the provisions of the proposed Direct Primary law. The so-called district plan for nominating United States Senators is worse than a makeshift
passage of an effective Direct Primary law, and which had denounced the Wolfe-Leavitt faction for its opposition to the Direct Primary measure," deserted the antimachine Senators and Assemblymen whom it had been supporting, and contended for the passage of the bill in the form the Wolfe-Leavitt faction was advocating.
In the confusion which such changes of position created, the machine element, in control of the organization of both Houses, was able to force the anti-machine members into a position where they were confronted with the alternative of giving up their pledge-sustained, State-wide vote plan of nominating United States Senators, or see the Legislature adjourned without the passage of any Direct Primary law at all."2 Rather than defeat the en
It provides for no pledge on the part of candidates and would be purely a straw vote, binding on nobody.
"The stubborn fact remains that the 'Call,' after leading in the fight for an honest Direct Primary law for two years and a half, has deserted the cause of The People at the most critical moment of the struggle."
71 See files of the San Francisco Call for the months of February and March, 1909, especially the issues of February 17, 18 and 19, in which the Wolfe-Leavitt faction, which in March The Call was supporting, was denounced.
72 This was done by forcing the bill into a committee on Free Conference, of which five members, Senators Wolfe, Leavitt, Wright and Assemblymen Grove L. Johnson and Leeds were supporting the "district advisory" plan, and one member, Hewitt, the State-wide, pledge-sustained plan.
Joint Rule 15, session of 1909, provided that "The report of the Committee on Free Conference shall not be subject to amendment in either house, and in case of non-agreement no further proceedings shall be had." Therefore, had Senate or Assembly rejected the report which the one-sided committee presented, there was no procedure by which further consideration could have been given the Direct Primary bill, and the measure would have failed of passage.
If the anti-machine members of Senate or Assembly rejected the report, thus defeating the whole bill, they lost their fight not only for a practical State-wide vote for United States Senator, but for the power to nominate other candidates for office by direct vote of the people. If they accepted the report they lost the practical vote for United States Senator, to be sure, but placed the power of the direct primary in the hands of the people. They accordingly accepted the machine's substitute for their practical State-wide vote for United States Senator-knowing that the plan