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The Election Case of Frank L. Smith of Illinois (1928)

Issues
Campaign financing; corruption.

Chronology
Special committee created: May 19, 1926
Referred to special committee: May 19, 1926; Dec. 7, 1927
Committee reports: Dec. 16, 1926; Feb. 12, 1927; Jan. 17, 1928
Credentials presented: Jan 19, 1927
Referred to Privileges & Elections Committee: Jan. 20, 1927
Committee report: Mar. 4, 1927
Senate vote: Jan. 19, 1928

Result: Not seated


Background
President Warren G. Harding's unexpected support for American participation in the World Court had the unintended effect of intensifying party factionalism in Illinois state politics. In a free-wheeling April 1926 Senate primary contest, the Republican challenger, Frank L. Smith, seized on the World Court issue and in the process further split the already fragmented Cook County and Chicago Republican organizations, as he took his campaign to Chicago's immigrant and black neighborhoods. There he vigorously criticized incumbent Senator William B. McKinley's vote for Harding's resolution in favor of the World Court. Smith, chairman of the Illinois Commerce Commission, which regulated public utilities, and a former member of the U.S. House of Representatives, succeeded in defeating McKinley for the Republican nomination.

Statement of the Case
In the spring of 1926, allegations regarding excessive expenditures in the Pennsylvania primary prompted the Senate to convene a special five-man investigating committee to examine expenditures and possible corruption in senatorial campaigns. Then, in late June, Arkansas Democrat Thaddeus H. Caraway delivered a speech in the Senate alleging the use of excessive expenditures, fraud, and corruption in the Illinois primary campaign. The charges included accusations that Frank Smith had spent $400,000 on the election and that Samuel Insull, the powerful owner of public utility corporations, contributed $125,000 to Smith's primary campaign fund while Smith was still chairing the commerce commission that oversaw such utilities. Accepting such contributions in these circumstances represented a conflict of interest and was illegal under Illinois law. Newspaper reports of Caraway's charges drew national attention to the Illinois election, and the special committee, which had already been concerned about expenditures in that race, began focusing on the activities of Smith's campaign. Chaired by James A. Reed (Democrat-MO), the committee conducted hearings in Chicago throughout the summer and fall of 1926, in addition to continuing its investigation of the Pennsylvania primary election.

Because these hearings were taking place during the general election campaign, some Illinois Republicans urged Smith to step aside and allow an untainted candidate to be nominated, but he refused and won the November election by more than 60,000 votes.

Then, in early December 1926, Senator William McKinley—who was not related to the late president of the same name—died, three months before his term was due to expire in March 1927. His death left a vacancy for the Illinois governor to fill, providing a new twist in a case that had already occupied the attention of the United States Senate for nearly six months. In the wake of McKinley's death, Senate Democrats moved quickly on December 9, 1926, to introduce a resolution that would disqualify Frank Smith based on the evidence gathered by the special committee. Their hasty action only two days after the death of the incumbent stemmed from reports that the Illinois governor planned to name Smith to the vacant seat until the full term began.

Response of the Senate--Special Committee
On December 16, 1926, the expectations of Senate Democrats materialized when the governor appointed Frank Smith to fill the remainder of McKinley's term. That same day, the special committee circulated a partial report on its investigation but made no recommendations to the Senate. The report explained that the committee had not yet obtained final contribution and expenditure figures. Because Illinois had no law restricting campaign expenditures, and the Supreme Court had ruled in the case of Truman Newberry that the Federal Corrupt Practices Act could not constitutionally apply to primary elections, there was no requirement for candidates to file campaign finance information for those races with the Senate. In addition to direct contributions to specific candidates, other funds were contributed to and spent on behalf of groups of candidates for state and local offices who were allied with a senatorial candidate. From the information it could gather, the committee estimated that a total of more than $500,000 had been spent on behalf of McKinley and over $450,000 on behalf of Frank Smith. The special committee continued its investigation during February 1927, issuing two more partial reports about recalcitrant witnesses, including Samuel Insull, who refused to answer questions about their campaign contributions.

Response of the Senate--Privileges and Elections Committee
When Smith's credentials to fill the vacancy were presented on January 19, 1927, the Senate discussed whether Smith could be blocked from taking the oath for the appointive term if his credentials were in good order. Reed described the case as differing from earlier ones in which a senator-elect was seated while a committee reviewed the matter, because, at the time Smith arrived to take his seat, his primary election had already been under investigation for several months by a Senate committee that had reported reason to believe that fraud and corruption had occurred. After prolonged debate, the Senate the next day refused to seat Smith until the Committee on Privileges and Elections reviewed the matter. That committee held hearings a few days later but recessed its deliberations when Smith became ill and returned to Illinois. When his credentials for the full term were presented on March 3, 1927, the Senate promptly referred them as well to the Committee on Privileges and Elections. The committee reported the next day, just before the end of the 69th Congress, that Smith's election credentials appeared valid but the committee had been unable to take final action because of his illness. As a result, Congress adjourned with the matter unresolved.

During the ensuing months, Smith's supporters did not remain idle. They insisted that the charges that Smith knowingly abused his public office were irrelevant since the senator-designate satisfied all constitutional qualifications to serve in the Senate and thus had a right to take his oath.

Response of the Senate--Special Committee (continued)
When the 70th Congress opened on December 5, 1927, and Smith's credentials were again presented, the new Senate seemed no more willing to overlook the extravagant financial conduct of the senator-elect than had the previous body. Calling the Illinois election but one more example of a "battle royal of the millionaires," Republican George Norris (NE) introduced a resolution to deny Smith a seat in the Senate. Two days later, after considerable discussion, the Senate adopted a resolution to refer the matter back to the special committee, directing it to give Frank Smith a hearing and granting him the privileges of the Senate floor to plead his case. In the meantime, Smith was not seated.

The committee held a further hearing, at which Insull and other witnesses finally provided the information they had been withholding. Smith also appeared but offered no new evidence, simply contending that the Senate had no authority to rule on his right to a seat until after it had seated him as a senator. This argument was similar to one raised by Thomas W. Cunningham in connection with the special committee's review of the Vare case. That contention subsequently led to the Supreme Court's decision in Barry v. U.S. ex rel. Cunningham (1929) ruling that a member-elect falls under the Senate's constitutional right to judge the qualifications of its members.

On January 17, 1928, the committee issued its final report, together with a resolution declaring that Smith's election was tainted with blatant fraud and corruption. The committee based this conclusion on the generally undisputed evidence that public service corporations made excessive contributions to his campaign while he served as chairman of the Illinois Commerce Commission, empowered to regulate rates and conduct state utility business. Since Smith's acceptance of these contributions was "harmful to the dignity and honor of the Senate," the committee concluded that he should not be seated. After several days of debate, the Senate, unable to ignore the widespread and openly acknowledged transactions, voted 61 to 23 on January 19, 1928, that Frank Smith was not entitled to his seat in the United States Senate.

Conclusion
Three weeks later, Smith submitted his resignation to Governor Len Small. Small accepted the resignation, announced that a vacancy existed, and named Smith to fill it, although Smith took no action to claim the seat. When Small then scheduled a special election, Smith entered the spring primary. In April 1928 both Smith and Small were defeated by the forces of reform, marking the end of Smith's senatorial aspirations. Defeated for a seat in the House of Representatives in 1930, Smith remained active in Republican politics until his death in 1950.


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.

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