|The Election Case of William B. Wilson v. William S. Vare of Pennsylvania (1929)|
Campaign financing; voting fraud; recount of disputed ballots; right of Senate to investigate matters related to its membership.
Special committee created: May 19, 1926
Referred to special committee: May 19, 1926
Committee reports: Dec. 22, 1926; Feb. 22, 1929
Petition received: Jan. 8, 1927
Referred to Privileges & Elections Committee: Mar. 3, 1927
Committee report: Dec. 5, 1929
Senate vote: Dec. 6, 1929
Result: Neither Vare nor Wilson seated
When Pennsylvania voters went to the polls for a primary election on May 18, 1926, they did so under the full glare of a critical national press. For weeks reports emanated from Philadelphia that money and machine politics were playing a substantial role in the campaign, as wealthy families supported various competing candidates for governor and senator. When the primary votes were counted, the senatorial nominees were Republican William S. Vare, a former U.S. representative and the wealthy boss of the Philadelphia political machine, and the unopposed Democrat William B. Wilson, who had been the first U.S. secretary of labor and was also a former U.S. representative.
Statement of the Case
In the Senate on May 19, 1926, Byron P. Harrison (Democrat-MS) spoke for those appalled by the newspaper stories about the conduct of the Pennsylvania primary. Harrison pointed to reports that a staggering $2 to $5 million had been poured into the campaign and reminded his colleagues that in an earlier election a far smaller amount expended by Michigan's Truman Newberry had been labeled excessive. Senators agreed with Harrison and appointed a special committee chaired by James A. Reed (Democrat-MO) to investigate campaign expenditures and evidence of corruption in the recent primary and in the forthcoming November general election. Under the terms of the resolution adopted, the committee investigated both the Pennsylvania election and the primary election campaign of Frank L. Smith in Illinois.
Response of the Senate--Special Committee
The five-member special committee of the 69th Congress conducted its hearings and investigations throughout the summer of 1926. Witnesses led the three Republican and two Democratic senators through a maze of local politics and factions. Before the committee could finish sifting through the morass of evidence grudgingly provided by a series of hostile witnesses, William S. Vare easily won the November general election for the Senate term beginning on March 4, 1927.
On December 22, 1926, the special committee filed an interim report that, although incomplete, outlined the enormous expenditures in the campaign, in some cases made by coalitions formed between a candidate for governor and one for senator. The committee found that in the primary campaign, $187,000 had been spent on behalf of Governor Gifford Pinchot, most of the money being contributed by the candidate, his wife, and his relatives. On behalf of the team of winning Republican gubernatorial candidate John S. Fisher and George Wharton Pepper, the defeated incumbent senator, $1.8 million was spent, $75,000 of it contributed by Secretary of the Treasury Andrew Mellon and members of his politically influential Pittsburgh family. Combined, William Vare and losing gubernatorial candidate Edward E. Beidleman spent some $785,000, $71,000 of it from Vare's personal funds. In contrast, William Wilson, the Democratic nominee for senator, spent only $10,000 on his campaign.
At the time, Pennsylvania campaign laws placed no limit on the amount a candidate could spend, although they did specify the purposes for which money could legitimately be spent. In addition, the Supreme Court had ruled in the 1918 Newberry case that the Senate had no power to judge primary elections, and the amended Corrupt Practices Act specifically did not apply to primary elections. The report noted that the committee had not yet had time to review the expenditures in the general election, partly because of its work on the Illinois election of Frank Smith. It therefore offered no conclusions or recommendations.
Thus far, the committee had focused on the primary election. Then, on January 8, 1927, William B. Wilson, the unsuccessful Democratic candidate in the general election, formally filed a petition charging corruption and voting irregularities by Vare supporters in that election. If only the legitimate ballots of qualified voters were counted, Wilson contended, he, rather than Vare, would have been elected. In a petition filled with emotion, Wilson asserted that in Philadelphia, where Vare controlled the Republican machine, the November senatorial election had been a "grotesque and fantastic travesty." Wilson's allegations included padded registration lists, "phantom" voters who were actually dead or imaginary, criminal misuse of campaign funds, and voter intimidation. He urged the Senate to take immediate steps to preserve the ballots and other evidence in order to conduct an investigation.
Already disturbed by the special committee's information about excessive expenditures in the primaries, the Senate on January 11, 1927, authorized the committee to take possession of the ballot boxes, tally sheets, and other records from the November Pennsylvania election, and the committee moved promptly to request the materials from the state. The special committee, however, soon found its efforts hampered by Senate procedural regulations. In the waning days of the 69th Congress, which ended on March 4, 1927, Pennsylvania Republican David A. Reed filibustered to block passage of a resolution that would continue the special committee into the 70th Congress. The Senate's failure to act left the committee without authority for nine months, since the new Congress would not convene until December. After the Committee to Audit and Control the Contingent Expenses of the Senate rejected the special committee's funding requests and the sergeant at arms refused to execute directives from the investigators, the committee dispatched a representative to confiscate election returns in certain Pennsylvania districts. When state officials balked at releasing the election records, the Senate committee turned to the federal courts for a mandatory injunction to free the desired ballot boxes. The case of Reed v. CountyCommissioners eventually reached the Supreme Court, which in 1928 ruled that the Senate, vested with the constitutional authority to enforce its own process, had the right "to secure information upon which to decide concerning elections." In the meantime, committee members arranged with representatives of Vare and Wilson for the federal courts in Pennsylvania to impound and retain the ballots and election records until Congress convened in December 1927. It was not until February 1928 that the committee finally received the election records.
Response of the Senate--Privileges and Elections Committee
While these developments significantly delayed the conduct of the special committee's investigation for most of 1927, the Committee on Privileges and Elections was pursuing the matter of Vare's credentials. On January 8, 1927, Governor Gifford Pinchot, in a statement that deviated from the traditional language of qualifying credentials, declared that William Vare "appears to have been chosen." Yet the reform-minded Pennsylvania governor declined to certify that the senator-elect had been honestly nominated or honestly elected. Rather, Governor Pinchot spoke of a nomination "partly bought and partly stolen" and of frauds that "tainted both the primary and the general election." A few days later, Pinchot's term expired. His successor, John S. Fisher, promptly forwarded a second, conventional set of credentials for William S. Vare. On March 3, 1927, the Senate referred both sets of credentials to the Committee on Privileges and Elections. In reporting to the Senate the next day, the last before adjournment of the 69th Congress, the committee chose to ignore the Pinchot statement and ruled the Fisher credentials valid. This report specifically made no assessment of Vare's final right to claim his seat, for the Senate agreed that such a judgment would be the prerogative of the 70th Congress at the beginning of Vare's term.
Response of the Senate--Both Committees
When Vare's credentials were presented at the convening of the 70th Congress on December 5, 1927, his opponents moved quickly to block his seating, and he was not permitted to take the oath of office. This procedure was unusual, since generally senators-elect with valid credentials were permitted to take their seats while an investigation proceeded.
After several days of discussion, the Senate on December 9 extended the existence and powers of the special committee and directed it to conduct additional hearings. The Senate also granted Vare floor time to speak in his own behalf. Concurrently, the Committee on Privileges and Elections was authorized to review the matter of William Wilson's petition against William Vare, and each of the committees was empowered to consider evidence gathered by the other.
Response of the Senate--Special Committee (continued)
The additional investigation by the special committee focused on the general election. Committee staff reviewed the election records, including a tedious examination of voter lists, ballots, and tally sheets. It also heard testimony from the Philadelphia district attorney regarding his prosecution of election fraud in the 1926 election for senator. He testified that Vare's ward leaders provided financial and moral support to those charged with fraud and endeavored to obstruct his investigations. He described a pervasive pattern of election corruption over a period of years. In the process of its hearings, the committee offered Vare an opportunity to present evidence that would refute the earlier unfavorable partial report, but Vare failed to do so.
As it delved deeper into the general election in Philadelphia and Pittsburgh, the committee found ample evidence of corruption, including thousands of cases of fraudulent registrations. "The fraud pervading the actual count by the division election officers is appalling," the committee charged, adding that a Philadelphia voter had only a 1-in-8 chance of having his or her ballot counted correctly. More than two thousand people voted who were not registered, and hundreds of repeat voters were found, as well as evidence of stuffed ballot boxes.
Even after Vare responded that he had no counter-evidence to present when the testimony concluded on May 8, 1928, the committee offered him one more opportunity to produce additional information at a hearing on May 19. On that day, the committee received a letter from Vare in which he claimed an "attack of acute indigestion" forced his absence and begged the members to reserve judgment until he could appear with complete information about the primary campaign. Vare's convenient illness brought the matter to a halt while the committee awaited further communication from him. He recovered sufficiently to journey to the Republican national convention in Kansas City early in the summer, but upon his return to his summer home in Atlantic City, New Jersey, Vare suffered a severe cerebral hemorrhage that left him paralyzed on the left side. From August to December 1928 he remained at his summer cottage under the care of a team of physicians.
On January 4, 1929, the special committee, clearly annoyed by Vare's long silences, convened one more time to permit the senator-elect to submit additional testimony, but Vare's attorney insisted that his client's fragile health demanded an indefinite postponement. The committee, its patience exhausted, complained that Vare was merely delaying the investigation and that there had been ample chance to respond during the period when he was well enough to participate actively in the national convention at Kansas City. Vare's counsel then submitted a written response to the charges, which the committee reviewed and decided contained no evidence to refute its findings regarding corruption in the general election.
With its principal duties at last ended, the committee unanimously reported to the Senate on February 22, 1929, that, in light of the evidence of fraud and corruption, William Vare was not entitled to his seat. Because of Vare's illness, the Senate took no action on the report, but it did vote on February 26 to retain the special committee and continue its authority into the 71st Congress.
Response of the Full Senate
Progressive Republican George Norris of Nebraska, horrified at the reports of Vare's excessive expenditures in the primary, had actually campaigned against his fellow Republican in the 1926 Pennsylvania general election. Now, on September 9, 1929, armed with reports that Vare's health had improved, Norris introduced a resolution that cited Vare's vast expenditures as "harmful to the dignity and honor of the Senate" and called on members to deny the Pennsylvania senator-elect his seat among them. The Senate, however, decided to postpone consideration until the start of the regular session in December. At that time, the Committee on Privileges and Elections was expected to report the results of its two-year study, which rumors indicated might differ in its conclusions from those of the special committee.
On December 4, 1929, Vare was present in the Senate chamber and permitted to speak in his own behalf. Helped up the aisle by his physician, the infirm senator-elect sat and listened to Norris' charges before rising to speak. He defended his expenditures in the primary as necessary to build an organization across the state and described as simply clerical irregularities the special committee's evidence of fraud in the general election. The next day, the Committee on Privileges and Elections issued its report. Having reviewed the same evidence as the special committee, the majority reached a different conclusion, finding that, even when all questionable votes were eliminated, William Vare had received a plurality of legal votes and William Wilson had not sustained his allegations that Pennsylvania voting irregularities had robbed him of a plurality. A supplemental report from four committee members concurred that Wilson had no claim to the seat but disagreed that Vare had secured his victory through legal votes. These senators, greatly influenced by the evidence made available to them by the special committee, stated that the nearly $800,000 expenditure in the primary, the large expenditures for the general election, and fraud committed in his behalf tainted all aspects of Vare's election and that he was not entitled to a seat in the Senate.
After a floor debate that considered the reports of both committees, the Senate voted on December 6, 1929, in the case that had consumed three and one-half years of its time. The Senate ruled, 66 to 15, that William Wilson had not been elected, and it voted, 58 to 22, to deny Senator-elect William Vare a seat in the Senate.
Less than a week later, on December 12, 1929, the Senate seated Republican Joseph R. Grundy, appointed by Governor Fisher to fill the vacancy in the Pennsylvania seat. A textile manufacturer, Grundy was also an influential backer of political campaigns, who had contributed heavily to Fisher's campaign.
In a related matter, Thomas W. Cunningham, a witness before the special committee, had challenged the committee's jurisdiction over the primary election and refused to answer any questions. At the direction of the Senate, Cunningham was arrested and remanded to the custody of the sergeant at arms. Cunningham's legal maneuvers, claiming the Senate had no power to arrest him, eventually reached the Supreme Court. In the case of Barry v. United States ex rel. Cunningham, decided in May 1929, the Court reaffirmed the authority of the Senate to adjudicate matters relevant to its own members and further held that, if in that process a member-elect is denied the oath of office during the investigation, the state involved is not losing its constitutional right to "equal suffrage in the Senate."
During the course of the investigation, the Senate's unusual decisions included: referring the case to a special committee rather than to Privileges and Elections, permitting a special committee to continue in force following the expiration of a Congress, using a resolution to extend a select committee between congresses, and asking the courts to clarify a legislative committee's investigative authority. The Vare case also resulted in two landmark decisions by the U.S. Supreme Court.
Vare's biographer states flatly that the Senate refused to seat Vare "not for any illegal act, but for general reasons similar to those that closed the portals of the Union League to him: he was a ward politician without social background." It appears, however, that the ultimate disposition of the Vare election case was actually shaped by the irrefutable evidence of corrupt use of massive campaign expenditures. In rejecting William Vare, the Senate moved to check the growing public sentiment that millionaire candidates could buy a membership at will in the highest legislative body in the nation, demonstrating that, while Vare may have controlled Philadelphia, he could not do likewise with the United States Senate. Turned away from a seat in the Senate, the ailing Vare continued his political activities in Pennsylvania, although he gradually lost control over his Philadelphia organization. He died in 1934.
William B. Wilson spent the years until his death in 1934 involved in mining and agricultural pursuits in Pennsylvania.
Source: Adapted from Anne M. Butler and Wendy Wolff. United States Senate Election, Expulsion, and Censure Cases, 1793-1990. S. Doc. 103-33. Washington, GPO, 1995.