Plaintiffs in error — Truman H. Newberry, Paul H. King and fifteen others — were found guilty of conspiring (Criminal Code, § 37) to violate § 8, Act of Congress approved June 25, 1910, c. 392, 36 Stat. 822-824, as amended by Act of August 19, 1911, c. 33, 37 Stat. 25-29, — The Federal Corrupt Practices Act — which provides: "No candidate for Representative in Congress or for Senator of the United States shall give, contribute, expend, use, or promise, or cause to be given, contributed, expended, used, or promised, in procuring his nomination and election, any sum, in the aggregate, in excess of the amount which he may lawfully give, contribute, expend, or promise under the laws of the State in which he resides: Provided, That no candidate for Representative in Congress shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding five thousand dollars in any campaign for his nomination and election; and no candidate for Senator of the United States shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding ten thousand dollars in any campaign for his nomination and election: Provided further, That money expended by any such candidate to meet and discharge any assessment, fee, or charge made or levied upon candidates by the laws of the State in which he resides, or for his necessary personal expenses, incurred for himself alone, for travel and subsistence, stationery
Act No. 109, § 1, Michigan Legislature, 1913, prohibits expenditure by or on behalf of a candidate, to be paid by him, in securing his nomination, of any sum exceeding twenty-five per centum of one year's compensation; and puts like limitation upon expenditures to obtain election after nomination. Section 1 is copied below.
Taken with the state enactment, the federal statute in effect declares a candidate for the United States Senate punishable by fine and imprisonment, if (except for certain
The indictment charges: That Truman H. Newberry became a candidate for the Republican nomination for United States Senator from Michigan at the primary election held August 27, 1918; that by reason of selection and nomination therein he became a candidate at the general election, November 5, 1918; that he and 134 others (who are named) at divers times from December 1, 1917, to November 5, 1918, unlawfully and feloniously did conspire, combine, confederate, and agree together to commit the offense on his part of wilfully violating the Act of Congress approved June 25, 1910, as amended, by giving, contributing, expending, and using and by causing to be given, contributed, expended and used, in procuring his nomination and election at said primary and general elections, a greater sum than the laws of Michigan permitted and above ten thousand dollars, to wit, $100,000.00, and on the part of the other defendants of aiding, counseling, inducing, and procuring Newberry as such candidate to give, contribute, expend, and use or cause to be given, contributed, expended and used said large and excessive sum in order to procure his nomination
Manifestly, this section applies not only to final elections for choosing Senators but also to primaries and conventions of political parties for selection of candidates. Michigan and many other States undertake to control these primaries by statutes and give recognition to their results. And the ultimate question for solution here is whether under the grant of power to regulate "the manner of holding elections" Congress may fix the maximum sum which a candidate therein may spend, or advise or cause to be contributed and spent by others to procure his nomination.
Section 4, Art. I, of the Constitution provides: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State
Undoubtedly elections within the original intendment
Sundry provisions of the Constitution indicate plainly enough what its framers meant by elections and the "manner of holding" them. "The House of Representatives shall be composed of members chosen every second year by the people of the several States." "No person shall be a Representative. . . who shall not, when elected, be an inhabitant of that State in which he shall be chosen." "When vacancies happen in the representation from any State, the executive authority thereof shall issue writs of election to fill such vacancies." "Immediately after they [the Senators] shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes." "No person
The plain words of the Seventeenth Amendment and those portions of the original Constitution directly affected by it, should be kept in mind. Art. I, § 3 — "The Senate of the United States shall be composed of two Senators from each State, chosen by the Legislature thereof, for six years; and each Senator shall have one vote. Immediately after they shall be assembled in consequence of the first election, they shall be divided as equally as may be into three classes." "And if vacancies happen by resignation, or otherwise, during the recess of the legislature of any State, the executive thereof may make temporary appointments until the next meeting of the legislature, which shall then fill such vacancies." Seventeenth Amendment — "The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall
As finally submitted and adopted the Amendment does not undertake to modify Art. I, § 4, the source of congressional power to regulate the times, places and manner of holding elections. That section remains "intact and applicable both to the election of Representatives and Senators." (Cong. Rec., vol. 46, p. 848.) When first reported, January 11, 1911, by Senator Borah for the Judiciary Committee, the proposed Seventeenth Amendment contained a clause providing, "The times, places and manner of holding elections for Senators shall be as prescribed in each state by the legislature thereof" — the avowed purpose being thereby to modify § 4, Art. I, by depriving Congress of power to regulate the manner of holding elections for Senators. (A copy of the original resolution as presented to the Senate is in the margin.)
Apparently because deemed unimportant no counsel on either side referred to "An Act Providing a temporary method of conducting the nomination and election of United States Senators," approved June 4, 1914, c. 103, 38 Stat. 384. To show its irrelevancy and prevent misapprehension the act is copied in the margin.
A concession that the Seventeenth Amendment might
Because deemed appropriate in order effectively to regulate the manner of holding general elections, this court has upheld federal statutes providing for supervisors and prohibiting interference with them, declaring criminal failure by election officers to perform duties imposed by the State, and denouncing conspiracies to prevent voters from freely casting their ballots or having them counted. Ex parte Siebold, 100 U.S. 371; Ex parte Clarke, 100 U.S. 399; Ex parte Yarbrough, 110 U.S. 651; In re Coy, 127 U.S. 731; United States v. Mosley, 238 U.S. 383. These enactments had direct and immediate reference to elections by the people and decisions sustaining them do not control the present controversy. Congress clearly exercised its power to regulate the manner of holding an election when it directed that voting must be by written or printed ballot or voting machines. c. 154, 30 Stat. 836.
Section 4 was bitterly attacked in the State Conventions of 1787-1789, because of its alleged possible use to create preferred classes and finally to destroy the States. In defense, the danger incident to absolute control of elections by the States and the express limitations upon the power, were dwelt upon. Mr. Hamilton asserted: "The truth is that there is no method of securing to the rich the preference apprehended, but by prescribing qualifications of property either for those who may elect, or be elected. But this forms no part of the power to be conferred upon the National Government. Its authority would be expressly restricted to the regulation of the times, the places, and the manner of elections. The qualifications of the persons who may choose, or be chosen, as has been remarked upon other occasions, are defined and fixed
Our immediate concern is with the clause which grants power by law to regulate the "manner of holding elections for Senators and Representatives" — not broadly to regulate them. As an incident to the grant there is, of course, power to make all laws which shall be necessary and proper for carrying it into effect. Art. I, § 8, cl. 18. Although the Seventeenth Amendment now requires Senators to be chosen by the people, reference to the original plan of selection by the legislatures may aid in interpretation.
Who should participate in the specified elections was clearly indicated — members of state legislatures and those having "the qualifications requisite for electors of the most numerous branch of the state legislature." Who should be eligible for election was also stated. "No person shall be a Representative who shall not have attained the age of twenty-five years, and been seven years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State in which he shall be chosen." "No person shall be a Senator who shall not have attained to the age of thirty years, and been nine years a citizen of the United States, and who shall not, when elected, be an inhabitant of that State for which he shall be chosen." Two Senators were allotted to each State and the method was prescribed for determining the number of Representatives. Subject to these important limitations, Congress was empowered by law to regulate the times, places and manner of holding the elections, except as to the places of choosing Senators. "These words are used without any veiled or obscure significance" but in their natural and usual sense.
Many things are prerequisites to elections or may affect their outcome — voters, education, means of transportation, health, public discussion, immigration, private animosities, even the face and figure of the candidate; but authority to regulate the manner of holding them gives no right to control any of these. It is settled, e.g., that the power to regulate interstate and foreign commerce does not reach whatever is essential thereto. Without agriculture, manufacturing, mining, etc., commerce could not exist, but this fact does not suffice to subject them to the control of Congress. Kidd v. Pearson, 128 U.S. 1.
Elections of Senators by state legislatures presupposed selection of their members by the people; but it would hardly be argued that therefore Congress could regulate such selection. In the Constitutional Convention of 1787, when replying to the suggestion that state legislatures should have uncontrolled power over elections of members of Congress, Mr. Madison said: "It seems as improper in principle, though it might be less inconvenient in practice, to give to the state legislatures this great authority over the election of the representatives of the people in the general legislature, as it would be to give to the latter a like power over the election of their representatives in the state legislatures." Supplement to Elliot's Debates, vol. V, p. 402.
It should not be forgotten that, exercising inherent police power, the State may suppress whatever evils may be incident to primary or convention. As "Each House shall be the judge of the elections, returns and qualifications of its own members," and as Congress may by law regulate the times, places and manner of holding elections, the National Government is not without power to protect itself against corruption, fraud or other malign influences.
The judgment of the court below must be reversed and the cause remanded for further proceedings in conformity with this opinion.
MR. JUSTICE McKENNA concurs in this opinion as applied to the statute under consideration which was enacted prior to the Seventeenth Amendment; but he reserves the question of the power of Congress under that Amendment.
Approved, June 4, 1914.
MR. CHIEF JUSTICE WHITE, dissenting from the opinion, but concurring with a modification in the judgment of reversal:
The conviction and sentence under review were based on an indictment charging a conspiracy to commit violations
By an amendment to the Corrupt Practices Act of 1910, Congress, in 1911, dealt with state primaries for the nomination of Senators and Representatives in Congress and with the election after nomination of such candidates (Act of June 25, 1910, c. 392, 36 Stat. 822; Act of August 19, 1911, c. 33, § 8, 37 Stat. 25, 28). At that time there existed in the State of Michigan a law regulating state nominating primaries which included candidates for state offices as well as for the Senate and House of Representatives of the United States. These primaries were held in the month of August in each year preceding the November general election. By that law the result of the primaries determined the right to have a person's name placed as a candidate on the ballot at the general election, and, in the case of United States Senators,
The Seventeenth Amendment to the Constitution, providing for the election of United States Senators by popular vote, was promulgated in May, 1913. In June, 1914, Congress by legislation carrying out the Amendment provided that thereafter Senators should be elected by popular vote, and, where state laws to that effect existed, made them applicable. But, evidently to give time for the States to enact the necessary legislation substituting for election by the legislature the method of election established by the Amendment, it was provided that, where no law for primaries by popular vote as to Senators existed, that subject should be controlled by the state law regulating primaries for the nomination of Representative at Large, if provided for, and if not, by the provisions controlling as to primaries for general state officers, the operation of these latter provisions being expressly limited to a term of three years (Act of June 4, 1914, c. 103, 38 Stat. 384). Within the time thus fixed and before the election which was held in this case, the State of Michigan, in order to conform its laws to the Amendment, modified them so as to provide for the election of Senators by popular vote, and made the general nominating state primary law applicable to that condition (Act No. 156, Mich. Acts of 1915), and, by virtue of the Amendment, the act of Congress, and the state law just stated, the primary with which we are concerned in this case was held in August, 1918.
The plaintiff in error, Newberry, was a candidate for the nomination of the Republican party as United States Senator, and, having been nominated at such primary, became a candidate at the ensuing November election, and was returned as elected. Subsequently the indictment under which the conviction below was had was
As the nominating primary was held after the adoption of the Seventeenth Amendment, the power must have been sanctioned by that Amendment, but for the purpose of clarity I consider the question of the power, first from the provisions of the Constitution as they existed before the Amendment, and second in contemplation of the light thrown upon the subject by the force of the Amendment.
The provisions of §§ 2 and 3 of Article I of the Constitution, fixing the composition of the House of Representatives and of the Senate and providing for the election of Representatives by vote of the people of the several States and of Senators by the state legislatures, were undoubtedly reservoirs of vital federal power constituting the generative sources of the provisions of § 4, cl. 1, of the same Article, creating the means for vivifying the bodies previously ordained (Senate and House), that is, providing: "The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators."
As without this grant no state power on the subject was possessed, it follows that the state power to create primaries as to United States Senators depended upon
But it is said that, as the power which is challenged here is the right of a State to provide for and regulate a state primary for nominating United States Senators free from the control of Congress, and not the election of such Senators, therefore, as the nominating primary is one thing and the election another and different thing, the power of the State as to the primary is not governed by the right of Congress to regulate the times and manner of electing Senators. But the proposition is a suicidal one, since it at one and the same time retains in the State the only power it could possibly have as delegated by the clause in question and refuses to give effect to the regulating control which the clause confers on Congress as to that very power. And mark, this is emphasized by the consideration that there is no denial here that the States possess the power over the federal subject resulting from the provision of the Constitution, but a holding that Congress may not exert as to such power to regulate authority which the terms of the identical clause of the Constitution confer upon it.
(2) Moreover, the proposition, impliedly at least, excludes from view the fact that the powers conferred upon Congress by the Constitution carry with them the right "to make all laws which shall be necessary and proper for carrying into execution the foregoing powers" (Art. I, § 8, cl. 18), and in doing so virtually disregards the previous legislative history and the decisions of this court sanctioning the same, to which we have referred, since that practice and those decisions unmistakably recognize that the power under the clause in question extends to all the prerequisite and appropriate incidents necessary to the discharge of the authority given.
(3) From a somewhat different point of view the same result is even more imperatively required. Thus, as has been seen, the election was had under the Seventeenth Amendment to the Constitution, providing for the election of Senators by popular vote instead of by the state legislatures. In the resolution providing for the passage of that Amendment through Congress, as first reported by Senator Borah on behalf of the judiciary committee, after making the changes necessary to substitute a provision causing Senators to be elected by popular vote instead of by the legislatures of the several States, the
There was division, however, concerning the matter, manifested by a proposition to amend the resolution, as reported, so as to retain the omitted provision, thus preserving the power of Congress as originally conferred (Cong. Rec., vol. 46, Part 1, p. 847). The legislative situation thus created was aptly stated by Senator Borah, referring to the report of the committee and to the proposition (submitted by Senator Sutherland of Utah) to amend that report and the resolution accompanying it. He said:
"In reference to the amendment which has been suggested by the Senator from Utah [Mr. Sutherland], it was considered at some length before the committee. The proposition is a simple one. As the joint resolution now stands, the times, places, and manner of electing United States Senators is left entirely to the State. The State may determine the rules and regulations, and the times, places, and manner of holding elections for United States Senators.
"If the amendment as offered by the Senator from Utah should prevail, then the matter would be left as it now is, subject to the supervision and control of Congress."
After much consideration, the amendment offered by Senator Sutherland was carried.
When the plain purpose of the Amendment is thus seen, and it is borne in mind that, at the time it was pending, the amendment to the Corrupt Practices Act dealing with state primaries for nominating United States Senators which is now before us was in the process of consideration in Congress, and when it is further remembered that, after the passage of the Amendment, Congress enacted legislation, so that the Amendment might be applied to state senatorial primaries, there would seem to be an end to all doubt as to the power of Congress.
It is not disputable that originally instructions to representatives in state legislatures by party conventions or by other unofficial bodies, as to the persons to be elected as United States Senators, were resorted to as a means of indirectly controlling that subject and thus, in a sense, restricting the constitutional provision as to the mode of electing Senators. The potentiality of instructions of that character to accomplish that result is
"Notwithstanding our rigid Constitution's decree that the senators from the several States shall be elected by `the legislatures thereof,' this act of the legislatures may be deprived of nearly all of its vitality. The election of President offers an illustration of the filching of actual power away from the electors in whom it is vested by law. When James Russell Lowell, a Republican elector for Massachusetts in 1876, was urged to exercise his independence and vote for Tilden, he declined, saying that `whatever the first intent of the Constitution was, usage had made the presidential electors strictly the instruments of the party which chose them.' The Constitution remains unchanged, yet presidential electors recognize that they have been stripped of all discretion. It appears that under certain conditions the election of Senators by state legislatures has been and can be made an equally perfunctory affair."
The growth of the tendency to make the indirect result thus stated more effective evidently was the genesis of the statutory primary to nominate Senators. See statement concerning an amendment to the constitution of Nebraska on that subject as early as 1875, in the same treatise, p. 141.
The large number of States which at this day have by law established senatorial primaries shows the development
(4) It is true that the plenary reservation in Congress of the power to control the States in the exercise of the authority to deal with the times, places, and manner of electing Senators and Representatives, as originally expressed in the Constitution, caused much perturbation in the conventions of the several States which were called upon to consider ratification, resulting from the fear that such power to regulate might be extended to and embrace the regulation of the election of the members of the state legislatures who were to exercise the power to elect Senators. It is further true that articles in the Federalist and other papers published at the time served to dispel the fear by directing attention to the fact that the regulating power of Congress only extended to the times and manner of electing Senators and did not include an authority, even by implication, to deal with the election of the state legislatures, which was a power reserved to the States. But this only served to emphasize the distinction between the state and federal power and affords no ground at this late day for saying that the reserved state power has absorbed and renders impossible of exercise the authority of Congress to regulate the federal power concerning the election of United States Senators, submitted, to the extent provided, to the authority of the States upon the express condition that such authority should be subordinate to and controlled by congressional regulation.
Can any other conclusion be upheld except upon the theory that the phantoms of attenuated and unfounded doubts concerning the meaning of the Constitution, which have long perished, may now be revived for the purpose of depriving Congress of the right to exert a power essential to its existence, and this in the face of the fact that the only basis for the doubts which arose in
I do not stop to refer to the state cases concerning the distinction between state legislative power to deal with elections and its authority to control primaries, as I cannot discover the slightest ground upon which they could be apposite, since here an inherent federal right and the provision of the Constitution in dealing with it are the subjects for consideration.
Moreover, in passing, I observe that, as this case concerns a state primary law imposing obligatory results, and the act of Congress dealing with the same, it is obvious that the effect of individual action is wholly beside the issue.
The consequence to result from a denial to Congress of the right to regulate is so aptly illustrated by the case in hand that in leaving the question I refer to it. Thus, it is stated and not denied that, in the state primary in question, one of the candidates, as permitted by the state; law, propounded himself at the primary election as the candidate for the nomination for Senator of both the Republican and the Democratic parties. If the candidacy had been successful as to both, the subsequent election would have been reduced to the merest form.
In view, then, of the plain text of the Constitution, of the power exerted under it from the beginning, of the action of Congress in its legislation, and of the amendment to the Constitution, as well as of the legislative action of substantially the larger portion of the States, I can see no reason for now denying the power of Congress to regulate a subject which from its very nature inheres in and is concerned with the election of Senators of the United States, as provided by the Constitution.
The indictment remains to be considered. It contained six counts. For the moment, it suffices to say that the
At the trial, before the submission of the case to the jury, the court put the fifth count entirely out of the case by instructing the jury to disregard it, as there was no evidence whatever to sustain it. The bribery charge, therefore, disappeared. The second, third and fourth counts, dealing, as I have said, with one general subject, were found by the court to be all in substance contained in the first count. They were, therefore, by direction of the court, either eliminated or consolidated with the first count. Thus, as contained in that count, the matters charged in the first four counts were submitted to the jury, as was also the sixth count; but the latter we need not further consider, as upon it there was a verdict of not guilty.
The case therefore reduces itself solely to the matters covered in the first count. That count charged a conspiracy on the part of the defendants, 135 in number, including Newberry, to commit an offense against the United States, that is, the offense on the part of Newberry of violating the Corrupt Practices Act by giving, contributing, expending and using and by causing to be given, contributed, expended and used, in procuring
Conspiracy to contribute and expend in excess of the amount permitted by the statute was, then, the sole issue, wholly disassociated from and disconnected with any corrupt or wrongful use of the amount charged to have been illegally contributed and expended. As, putting out of view the constitutional question already considered, the errors assigned are based solely upon asserted misconstructions of the statute by the court in its charge to the jury, we bring the statute at once into view. It provides, so far as relevant to the case before us:
"No candidate for . . . Senator of the United States shall given, contribute, expend, use, or promise, or cause to be given, contributed, expended, used, or promised, in procuring his nomination and election, any sum, in the aggregate, in excess of the amount which he may lawfully give, contribute, expend, or promise under the laws of the State in which he resides: Provided, That . . . no candidate for Senator of the United States shall give, contribute, expend, use, or promise any sum, in the aggregate, exceeding ten thousand dollars in any campaign for his nomination and election: . . ."
Coming to deal with the statute, the court, after pointing out in the most explicit terms that the limitation on the amount which might be lawfully contributed and expended or caused to be contributed and expended in
(a) "It is important, therefore, that you should understand the meaning of the language employed in this Corrupt Practices Act, and that you should understand and comprehend the effect and scope of the act, and the meaning of the language there employed, and the effect and scope and extent of the prohibition against the expenditure and use of money therein contained.
"The words `Give, contribute, expend or use' as employed in this statute have their usual and ordinary significance, and mean furnish, pay out, disburse, employ, or make use of. The term `To cause to be expended, or used' as it is employed in this statute, means to occasion, to effect, to bring about, to produce the expenditure and use of the money.
"The prohibition contained in this statute against the expenditure and use of money by the candidate is not limited or confined to the expenditure and use of his own money. The prohibition is directed against the use and expenditure of excessive sums of money by the candidate from whatever source or from whomsoever those moneys may be derived."
(b) "The phrase which constitutes the prohibition against the candidate `Causing to be given, contributed, expended or used excessive sums of money,' is not limited and not confined to expenditures and use of money made directly and personally by himself. This prohibition extends to the expenditure and use of excessive sums of
"To constitute a violation of this statute knowledge of the expenditure and use of excessive sums of money on the part of the candidate is not sufficient; neither is it sufficient to constitute a violation of this statute that the candidate merely acquiesces in such expenditures and use. But it is sufficient to constitute a violation of this statute if the candidate actively participates in doing the things which occasion such expenditures and use of money and so actively participates with knowledge that the money is being expended and used."
Having thus fixed the meaning of the prohibitions of the statute, the court came to apply them as thus defined to the particular case before it, saying:
(c) "To apply these rules to this case: If you are satisfied from the evidence that the defendant Truman H. Newberry at or about the time that he became a candidate for United States Senator was informed and knew that his campaign for the nomination and election would require the expenditure and use of more money than is permitted by law and with such knowledge became a candidate, and thereafter by advice, by conduct, by his acts, by his direction, by his counsel, or by his procurement he actively participated and took part in the expenditure and use of an excessive sum of money, of an unlawful sum of money, you will be warranted in finding that he did violate this statute known as the Corrupt Practices Act."
Whether the instructions marked (a) and (b), if unexplained, were, in view of the ambiguity lurking in many of the expressions used therein, prejudicially
There can be no doubt, when the limitations as to expenditure which the statute imposed are considered in the light of its context and its genesis, that its prohibitions on that subject were intended, not to restrict the right of the citizen to contribute to a campaign, but to prohibit the candidate from contributing and expending or causing to be contributed and expended, to secure his nomination and election, a larger amount than the sum limited as provided in the statute. To treat the candidacy, as did the charge of the court, as being necessarily the cause, without more, of the contribution of the citizen to the campaign, was therefore to confound things which were wholly different, to the frustration of the very object and purpose of the statute. To illustrate: Under the instruction given, in every case where to the knowledge of the candidate a sum in excess of the amount limited by the statute was contributed by citizens to the
As it follows from the considerations which I have stated that the judgment below was, in my opinion, clearly wrong and therefore should be reversed, it is not necessary that I should go further and point out how cogently under the case presented the illustrations just previously made apply to it. For the reasons stated, although I dissent from the ruling of the court as to the unconstitutionality of the act of Congress, I nevertheless think its judgment of reversal should be adopted, qualified, however, so as to reserve the right to a new trial.
MR. JUSTICE PITNEY, concurring in part:
I concur in the judgment reversing the conviction of plaintiffs in error, but upon grounds fundamentally different from those adopted by the majority: my view being that there is no constitutional infirmity in the act of Congress that underlies the indictment, but that there was an error in the submission of the case to the jury that calls for a new trial.
The constitutional question is so important that it deserves treatment at length.
The present case arose out of a campaign for nomination and election of a Senator in the State of Michigan, where a statute (Act No. 109, § 1, Mich. Pub. Acts, 1913) limits the amount of money that may be paid, and of
Plaintiffs in error were indicted and convicted in the United States District Court for a conspiracy (§ 37, Criminal Code) to commit an offense against the United States, to wit, the offense, on the part of Truman H. Newberry, of willfully violating the acts of Congress above referred to by giving, contributing, expending, and using, and by causing to be given, contributed, expended, and used, in procuring his nomination and election as Senator of the United States at the primary and general elections in the year 1918, a sum in excess of the amount thus limited, to wit, the sum of $100,000, and on the part of the other defendants of aiding, counseling, inducing, and procuring (§ 332, Criminal Code) said Truman H. Newberry so to give, contribute, expend, and use, and cause to be given, contributed, expended, and used said large sums of money in excess of the amounts permitted, etc.; no part of which money was to be expended for any of the purposes specifically permitted without limit; numerous overt acts being alleged to have been done by one
The averments of the indictment and the evidence at the trial related especially to expenditures contemplated to be made, and in fact made, to bring about Mr. Newberry's selection at a nominating or primary election held in August, 1918, with only minor expenditures made after that date and in contemplation of the general election which was held in the following November. The case is brought to this court by direct writ of error, upon the fundamental contention that the acts of Congress, in so far as they assume to regulate primary elections and limit the expenditures of money that may be made or caused to be made by a candidate therein, are in excess of the power conferred upon Congress to regulate the "manner of holding elections for Senators and Representatives" by § 4 of Article I of the Constitution of the United States. This question was raised, but not decided, in United States v. Gradwell, 243 U.S. 476, 487-488; Blair v. United States, 250 U.S. 273, 278-279.
For reasons to be stated below, I consider it erroneous to treat the question as dependent upon the words of the cited section alone. I will, however, first deal with that section, viewing it in connection with other provisions immediately associated with it and here quoted:
"Article I. Section 1. All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
"Section 2. The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature . . ."
"Article XVII. The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, . . . The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures. . . ."
"Section 4. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators. . . .
"Section 5. Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, . . ."
It is contended that Congress has no power to regulate the amount of money that may be expended by a candidate to secure his being named in the primary election; that the power "to regulate the manner of holding elections," etc., relates solely to the general elections where Senators or Representatives are finally chosen. Why should "the manner of holding elections" be so narrowly construed? An election is the choosing of a person by vote to fill a public office. In the nature of things it is a complex process, involving some examination of the qualifications of those from whom the choice is to be made and of those by whom it is to be made; some opportunity for the electors to consider and canvass the claims of the eligibles; and some method of narrowing the choice by eliminating candidates until one finally secures a majority, or at least a plurality, of the votes. For the process of elimination, instead of tentative elections participated in by all the electors, nominations by parties or groups of citizens have obtained in the United States from an early period. Latterly the processes of nomination
It is said that § 4 of Art. I does not confer a general power to regulate elections, but only to regulate "the manner of holding" them. But this can mean nothing less than the entire mode of procedure — the essence, not merely the form, of conducting the elections. The only specific grant of power over the subject contained in the Constitution is contained in that section; and the power is conferred primarily upon the legislatures of the several States, but subject to revision and modification by Congress. If the preliminary processes of such an election are to be treated as something so separate from the final choice that they are not within the power of Congress under this provision, they are for the same reason not within the power of the States, and, if there is no other grant of power, they must perforce remain wholly unregulated. For if this section of the Constitution is to be strictly construed with respect to the power granted to Congress thereunder, it must be construed with equal
But if I am wrong in this, and the power to regulate primary elections could be deemed to have been reserved by the States to the exclusion of Congress, the result would be to leave the general Government destitute of the means to insure its own preservation without governmental aid from the States, which they might either grant or withhold according to their own will. This would render the Government of the United States something less than supreme in the exercise of its own appropriate powers; a doctrine supposed to have been laid at rest forever by the decisions of this court in McCulloch v. Maryland, 4 Wheat. 316, 405, et seq.; Cohens v. Virginia, 6 Wheat. 264, 381, 387, 414; and many other decisions in the time of Chief Justice Marshall and since.
But why should the primary election (or nominating convention) and the final election be treated as things so separate and apart as not to be both included in § 4 of
Why should this provision of the Constitution — so vital to the very structure of the Government — be so narrowly construed? It is said primaries were unknown when the Constitution was adopted. So were the steam railway and the electric telegraph. But the authority of Congress to regulate commerce among the several States was extended over these instrumentalities, because it was recognized that the manner of conducting the commerce was not essential. And this court was prompt to recognize that a transportation of merchandise, incidentally interrupted for a temporary purpose, or proceeding under successive bills of lading or means of transport, some operating wholly intra-state, was none the less interstate commerce, if such commerce was the practical and essential result of all that was done. The Daniel Ball, 10 Wall. 557, 565; Southern Pacific Terminal Co. v. Interstate Commerce Commission, 219 U.S. 498, 526, 527; Ohio Railroad Commission v. Worthington, 225 U.S. 101, 108, 110; United States v. Union Stock Yard Co., 226 U.S. 286, 304; Texas & New Orleans R.R. Co. v. Sabine Tram Co., 227 U.S. 111, 124.
Why is it more difficult to recognize the integral relation of the several steps in the process of election?
Congress, by the so-called Enforcement Act of May 31, 1870, c. 114, § 20, 16 Stat. 140, 145, and the supplement approved February 28, 1871, c. 99, §§ 1, 2, 3, 4, 16 Stat. 433, 434, prescribed a variety of regulations relating to elections of members of the House of Representatives, including provisions for safeguarding the registration of voters. These were carried into the Revised Statutes as §§ 2011, 2016, 2021, 2022, 5522. They were attacked
It is said that if "the manner of holding elections" had been understood in a sense to include the nominating procedure, ratification of the Constitution by the state conventions could not have been secured. I do not see how this can be confidently asserted, in view of the fact that, by the very hypothesis, the conventions ratified a specific provision for regulating the only manner of holding elections with which they were familiar — dealt with the entire subject without limitation. Mr. Justice Story, in rehearsing the objections, and the reasoning by which they were met, with citations from the debates and from the Federalist, refers to no objection that would be more cogent, supposing the regulation were extended to nominating procedure, than it would be if the regulation were confined to the ultimate election. Story Const., §§ 814-827. The sufficient answer to all objections was found in Hamilton's "plain proposition, that every government ought to contain in itself the means of its own preservation." Federalist, No. 59.
What was said, in No. 60 of the Federalist, about the authority of the national government being restricted to the regulation of the times, the places, and the manner of elections, was in answer to a criticism that the national power over the subject "might be employed in such a manner as to promote the election of some favorite class of men in exclusion of others," as by discriminating "between the different departments of industry, or between
In support of a narrow construction of the power of Congress to regulate "the manner of elections" of its membership, it is said there is a check against corruption and kindred evils affecting the nominating procedure, in the authority of each House to judge of the elections, returns, and qualifications of its own members; the suggestion being that if — to take a clear case — it appeared that one chosen to the Senate had secured his election through bribery and corruption at the nominating primary, he might be refused admittance. Obviously, this amounts to a concession that the primary and the definitive election, whose legal separateness is insisted upon, are essentially but parts of a single process; else how could the conduct of a candidate with reference to the primary have legitimate bearing upon the question of his election as Senator? But the suggestion involves a fundamental
But if I am wrong thus far — if the word "elections" in Art. I, § 4, of the Constitution must be narrowly confined to the single and definitive step described as an election at the time that instrument was adopted — nevertheless it seems to me too clear for discussion that primary elections and nominating conventions are so closely related to the final election, and their proper regulation so essential to effective regulation of the latter, so vital to representative government, that power to regulate them is within the general authority of Congress. It is matter of common knowledge that the great mass of
The passage of the act under consideration amounts to a determination by the law-making body that the regulation of primary elections and nominating conventions is necessary if the Senate and House of Representatives are to be, in a full and proper sense, representative of the people. Not only is this true of those cases referred to in the report of the Senate Committee (Senate Rept. No. 78, 62d Cong., 1st sess., p. 2) where the parties are so unequally divided that a nomination by the majority party is equivalent to election; but it is true in every case
The question of the authority of Congress to determine that laws regulating primary elections are "necessary and proper for carrying into execution" the other powers specified, admits of but one answer — the same given by Chief Justice Marshall in the memorable case last cited (4 Wheat. 421): "We think the sound construction of the Constitution must allow to the national legislature that discretion, with respect to the means by which the powers it confers are to be carried into execution, which will enable that body to perform the high duties assigned to it, in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are constitutional."
This principle has been consistently adhered to and liberally applied from that day until this. Among a multitude of illustrative cases that might be cited, some
It would be tragic if that provision of the Constitution which has proved the sure defense of every outpost of national power should fail to safeguard the very foundation of the citadel.
But its function in preserving our representative government has long been recognized. In Ex parte Yarbrough, 110 U.S. 651, where the question was as to the constitutionality of §§ 5508 and 5520, Rev. Stats. ___ the question having arisen upon an indictment for a conspiracy to intimidate a citizen of African descent in the exercise of his right to vote for a member of Congress — the court, by Mr. Justice Miller, said (p. 657): "That a government whose essential character is republican, whose executive head and legislative body are both elective, whose most numerous and powerful branch of the legislature is elected by the people directly [now true of both branches], has no power by appropriate laws to secure this election from the influence of violence, of corruption, and of fraud, is a proposition so startling as to arrest attention and demand the gravest consideration. If this government is anything more than a mere aggregation of delegated agents of other States and governments, each of which is superior to the general government, it must have the power to protect the elections on which its existence depends from violence and corruption. If it has not this power it is left helpless before the two great natural and historical enemies of all republics, open violence and insidious corruption. The proposition that it has no such power is supported by the old argument, often heard, often repeated, and in this court never assented to, that
I conclude that it is free from doubt that the Congress has power under the Constitution to regulate the conduct of primary elections and nominating conventions held for choosing candidates to be voted for in general elections for Representatives and Senators in Congress, and that the provisions of the Act of August 19, 1911, 37 Stat. 26-28, in that behalf are valid.
Since the majority of the court hold that the act is invalid, it would serve no useful purpose to spend time in discussing those assignments of error that relate to the conduct of the trial. It may be said, however, that, in my opinion, the trial court did not err in refusing to direct a verdict for the defendants for want of evidence of the alleged conspiracy; nor in instructing the jury that the prohibition of the statute against the expenditure and use of money by a candidate beyond the specified limit is not confined to his own money, but extends to the expenditure or use of excessive sums of money by him, from whatever source and from whomsoever derived; nor in instructing them that in order to warrant a verdict
I find prejudicial error, however, in that part of the charge which assumed to define the extent to which a candidate must participate in expenditures beyond the amount limited in order that he may be held to have violated the prohibition — an instruction vitally important because it was largely upon overt acts supposed to have been done in carrying out the alleged conspiracy that the Government relied to prove the making of the conspiracy and its character, and because, unless the purposes of defendants involved a violation of the Corrupt Practices Act, they were not guilty of a conspiracy to commit an "offense against the United States" within the meaning of § 37, Criminal Code.
The instruction upon this topic, excepted to and assigned for error, was as follows: "The phrase which constitutes the prohibition against the candidate `Causing to be given, contributed, expended or used' excessive sums of money, is not limited and not confined to expenditures and use of money made directly and personally by himself. This prohibition extends to the expenditure and use of excessive sums of money in which the candidate actively participates, or assists, or advises, or directs, or induces, or procures. The prohibition extends not only to the expenditure and use of excessive sums of money by the candidate directly and personally, but to such use and expenditure through his agency, or procurement, or assistance. To constitute a violation of this statute knowledge of the expenditure and use of excessive sums of money on the part of the candidate is not sufficient; neither is it sufficient to constitute a violation of this
However this may be regarded when considered in the abstract, the difficulty with it, when viewed in connection with the evidence in the case to which the jury was called upon to apply it, is that it permitted and perhaps encouraged the jury to find the defendants guilty of a conspiracy to violate the Corrupt Practices Act if they merely contemplated a campaign requiring the expenditure of money beyond the statutory limit, even though Mr. Newberry, the candidate, had not, and it was not contemplated that he should have, any part in causing or procuring such expenditure beyond his mere standing voluntarily as a candidate and participating in the campaign with knowledge that moneys contributed and expended by others without his participation were to be expended.
The language of the Corrupt Practices Act (37 Stat. 28) is: "No candidate . . . shall give, contribute, expend,
It follows that one's entry upon a candidacy for nomination and election as a Senator with knowledge that such candidacy will come to naught unless supported by expenditure of money beyond the specified limit, is not within the inhibition of the act unless it is contemplated that the candidate shall have a part in procuring the excessive expenditures beyond the effect of his mere candidacy in evoking spontaneous contributions and expenditures by his supporters; and that his remaining in the field and participating in the ordinary activities of the campaign with knowledge that such activities furnish in
The state of the evidence made it important that, in connection with that portion of the charge above quoted, the jury should be cautioned that unless it was a part of defendants' plan that Mr. Newberry should actually participate in giving, contributing, expending, using, or promising, or causing to be given, contributed, expended, used, or promised moneys in excess of the limited amount — either himself or through others as his agents — his mere participation in the activities of the campaign, even with knowledge that moneys spontaneously contributed and expended by others, without his agency, procurement, or assistance, were to be or were being expended, would not of itself amount to his causing such excessive expenditure. The effect of the instruction that was given may well have been to convey to the jury the view that Mr. Newberry's conduct in becoming and remaining a candidate with knowledge that spontaneous contributions and expenditures of money by his supporters would exceed the statutory limit, and his active participation in the campaign, were necessarily equivalent to an active participation by him in causing the expenditure and use of an excessive sum of money, and that a combination among defendants having for its object Mr. Newberry's participation in a campaign where money in excess of the prescribed limit was to be expended, even without his participation in the contribution or expenditure of such money, amounted to a conspiracy on their part to commit an offense against the act.
For error in the instructions in this particular the judgment should be reversed, with directions for a new trial.
MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE concur in this opinion.
"Section 1. No sums of money shall be paid, and no expenses authorized or incurred by or on behalf of any candidate to be paid by him in order to secure or aid in securing his nomination to any public office or position in this State, in excess of twenty-five per cent of one year's compensation or salary of the office for which he is candidate: Provided, That a sum not exceeding fifty per cent of one year's salary may be expended by the candidates for Governor and Lieutenant Governor; or where the office is that of member of either branch of the Legislature of the State, the twenty-five per cent shall be computed on the salary fixed for the term of two years: Provided further, That no candidate shall be restricted to less than one hundred dollars in his campaign for such nomination. No sums of money shall be paid and no expense authorized or incurred by or on behalf of any candidate who has received the nomination to any public office or position in this State, in excess of twenty-five per cent of one year's salary or compensation of the office for which he is nominated; or where the office is that of member of either branch of the Legislature of the State, the twenty-five per cent shall be computed on the salary fixed for the term of two years: Provided, That no candidate shall be restricted to less than one hundred dollars. No sum of money shall be paid and no expenses authorized or incurred by or on behalf of any candidate contrary to the provisions of this act."
That Truman H. Newberry, Chase S. Osborne, Henry Ford and William B. Simpson, before and on August 27, 1918, were candidates for the Republican nomination for the office of Senator in the Congress of the United States from the State of Michigan at the primary election held in said State on that day under the laws of said State, and Henry Ford and James Helm, before and on said August 27, 1918, were candidates for the Democratic nomination for the same office at said Primary election; that from said August 27, 1918, to and including November 5, 1918, said Truman H. Newberry and said Henry Ford, by reason of their election and nomination at said Primary election, became and were opposing candidates for election to the office of Senator in the Congress of the United States from said State of Michigan at the general election held in said State on said November 5, 1918, — said Truman H. Newberry of the Republican Party and said Henry Ford of the Democratic Party, — each of said candidates having, on said August 27, 1918, and said November 5, 1918, attained to the age of thirty years and upwards and been a citizen of the United States for more than nine years and each then being an inhabitant and resident of said State; and that said Truman H. Newberry, Paul H. King [and 133 others], hereinafter called the defendants, continuously and at all and divers times throughout the period of time from December 1, 1917, to and including said November 5, 1918, at and within said Southern Division of said Western District of Michigan, unlawfully and feloniously did conspire, combine, confederate and agree together, and with divers other persons to said grand jurors unknown, to commit an offense against the United States, to-wit, the offense on the part of said Truman H. Newberry of wilfully violating the Act of Congress approved June 25, 1910, as amended by the Acts of August 19, 1911, and August 23, 1912, by giving, contributing, expending and using and by causing to be given, contributed, expended and used, in procuring his nomination and election as such Senator at said primary and general elections, a sum, in the aggregate, in excess of the amount which he might lawfully give, contribute, expend, or use, or cause to be given, contributed, expended or used for such purpose under the laws of said State of Michigan, to-wit the sum of one hundred thousand dollars, and by giving, contributing, expending and using and causing to be given, contributed, expended and used in procuring his nomination and election as such Senator, at said primary and general elections, a sum in the aggregate, in excess of ten thousand dollars, to-wit, said sum of one hundred thousand dollars, and on the part of said other defendants of aiding, counseling, inducing and procuring said Truman H. Newberry so to give, contribute, expend and use and cause to be given, contributed, expended and used said large sum of money in excess of the amounts permitted by the laws of the State of Michigan and the said Acts of Congress; the same to be money so unlawfully given, contributed, expended and used by said Truman H. Newberry and by him caused to be given, contributed, expended and used as such candidate for the following and other purposes, objects and things, to-wit:
Advertisements in newspapers and other publications;
Print paper, cuts, plates and other supplies furnished to newspaper publishers;
Subscriptions to newspapers;
Production, distribution and exhibition of moving pictures;
Traveling and subsistence expenses of campaign managers, public speakers, secret propagandists, field, district and county agents and solicitors, and of voters not infirm or disabled;
Compensation of campaign managers, public speakers and secret propagandists, and of field, district and county agents and solicitors;
Appropriating and converting to the use of the defendants themselves, and each of them, large sums of money under the guise and pretense of payment of their expenses and compensation for their services;
Rent of offices and public halls;
Bribery of election officials;
Unlawful assistance of election officials;
Bribery of voters;
Expenses and compensation of Democratic obstructionist candidates at the primary election;
Expenses and compensation of detectives;
Dinners, banquet and other entertainments given to persons believed to be influential in said State of Michigan;
And no part of which said money was to be money expended by said Truman H. Newberry, as such candidate, to meet or discharge assessments, fees, or charges made or levied upon candidates by the laws of said State, or for his necessary personal expenses, incurred for himself alone, for travel and subsistence, stationery and postage, writing or printing (other than in newspapers), or for distributing letters, circulars, or postage, or for telegraph or telephone service, or for proper legal expenses in maintaining or contesting the results of either of said elections.
[38 distinct and separate overt acts are specified].
And so the grand jurors aforesaid, upon their oaths aforesaid, do say, that said defendants, continuously and at all and divers times throughout the period of time in this count mentioned, at and within said division and district, in manner and form in this count aforesaid, unlawfully and feloniously did conspire to commit an offense against the United States, and certain of them did do acts to effect the object of the conspiracy; Against the peace and dignity of the United States, and contrary to the form of the statute of the same in such case made and provided.
"Resolved by the Senate and House of Representatives of the United States of America in Congress assembled (two-thirds of each House concurring therein), That in lieu of the first paragraph of section 3 of Article 1 of the Constitution of the United States, and in lieu of so much of paragraph 2 of the same section as relates to the filling of vacancies, and in lieu of all of paragraph 1 of section 4 of said Article I, in so far as same relates to any authority in Congress to make or alter regulations as to the times or manner of holding elections for Senators, the following be proposed as an amendment to the Constitution, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the States:
"`The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof for six years; and each Senator shall have one vote. The electors in each State shall have the qualifications requisite for electors of the most numerous branch of the State legislatures.
"`The times, places, and manner of holding elections for Senators shall be as prescribed in each State by the legislature thereof.
"`When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive thereof to make temporary appointments until the people fill the vacancies by election, as the legislature may direct.
"`This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.'"
"An Act Providing a temporary method of conducting the nomination and election of United States Senators.
"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That at the regular election held in any State next preceding the expiration of the term for which any Senator was elected to represent such State in Congress, at which election a Representative to Congress is regularly by law to be chosen, a United States Senator from said State shall be elected by the people thereof for the term commencing on the fourth day of March next thereafter.
"Sec. 2. That in any State wherein a United States Senator is hereafter to be elected either at a general election or at any special election called by the executive authority thereof to fill a vacancy, until or unless otherwise specially provided by the legislature thereof, the nomination of candidates for such office not heretofore made shall be made, the election to fill the same conducted, and the result thereof determined, as near as may be in accordance with the laws of such State regulating the nomination of candidates for and election of Members at Large of the National House of Representatives: Provided, That in case no provision is made in any State for the nomination or election of Representatives at Large, the procedure shall be in accordance with the laws of such State respecting the ordinary executive and administrative officers thereof who are elected by the vote of the people of the entire State: And provided further, That in any case the candidate for Senator receiving the highest number of votes shall be deemed elected.
"Sec. 3. That section two of this Act shall expire by limitation at the end of three years from the date of its approval."
 On this general topic, see the excellent treatise on The Election of Senators, by George H. Haynes (1906), especially c. XI.
 Oregon, 1904, § 13. In Washington the candidate may pledge himself to vote for the party choice for United States senator (1907, § 31). This latter is the general rule.