Home -> James H. Barry Press -> Story of the Session of the California Legislature of 1909 -> Chapter 8
Chapter VIII. The Direct Primary Bill. Parallel Between It and the Walker-Otis Bill - Attempt to Placate the Machine Weakened Position of Its Supporters - Most Serious Criticism Came from Advocates of the Direct Primary Idea - What the Original Measure Provided - Machine's Plan of Campaign. The parallel between the Walker-Otis Anti-Racetrack Gambling bill and the Wright-Stanton Direct Primary bill furnishes the most suggestive feature of the Legislative session. Each was based on a demand of a large majority of the people of the State for the correction of an abuse; the one to prevent the prostitution of the race-course in the interest of the gambling element; the second to prevent the domination in public affairs of the corrupt, corporation-backed political boss. Each had been discussed in the public prints for months previous to the convening of the Legislature, and each had been made in the popular view of affairs a sort of test by which the Legislature was to be judged. Each had the support of not only the better element of electors, but the better element of each House of the Legislature. Each had the determined secret opposition, and so far as it dared, the open opposition of the machine. The campaign which the machine planned against the bills was practically the same in each instance - to amend the measures into a condition of ineffectiveness, and then pass them as sop to The People. This would have given The People a Direct Primary law without a direct primary; an Anti-Gambling law that would neither close poolrooms nor interfere with bookmaking. And here the parallel ends. The proponents of the Anti-Gambling bill introduced an Anti-Gambling measure, showed that it was the best that could be drawn, and let it be known that they (the supporters of the measure) would, if it were amended by the machine, vote against it. The proponents of the Direct Primary bill, on the other hand, seemed possessed of the notion that they must placate the machine if any Direct Primary bill were to be passed. The backers of the Anti-Gambling bill treated the machine leaders as recognized enemies of the measure, with whom there could be no compromise. The backers of the Direct Primary bill treated the machine leaders as friends and allies, inviting them to offer suggestion and advice. The results of the two campaigns speak for the effectiveness of the two methods. The Anti-Gambling element put through an effective Anti-Gambling bill, refusing to compromise on so much as the change of a comma. But in the case of the Direct Primary bill, the machine not only had the last word, but in the feature of the nomination of United States Senators, the real bone of contention, amended the measure very much to its liking. Long before the Legislature convened it was common talk at San Francisco that the backers of the Direct Primary bill were willing to accept any sort of a bill, so long as a direct primary measure be passed. Inasmuch as it is quite possible that a legislative enactment called Direct Primary law may be a trifle worse than no Direct Primary law at all, the jelly-fish attitude of the leaders in the movement caused no little unfavorable comment. It did not seem to occur to the self-constituted leaders that their proper course was to draw up the most effective measure possible, let its effectiveness be known to the people - as was done in the case of the Anti-Gambling bill - and insist that the Legislature go on record for or against it. Instead, they endeavored to satisfy everybody, apparently attempted to come to a compromise understanding with the machine, or at least to please machine leaders. Their theory seemed to be that if the measure were not made too effective, the machine would not seriously oppose its passage, thus insuring a glorious and at the same time, easy victory. However unwarranted this assumption from appearances may be, such hidebound machine men as Wolfe and Leavitt were consulted and flattered, apparently with the idea that although they had been abused like pickpockets on previous occasions, they could be won over to the Direct Primary cause. The stupidity of this policy was shown at the end of the session, when Wolfe and Leavitt dictated the terms under which the Direct Primary bill should pass. Had the supporters of the Anti-Gambling bill pursued the same policy, and treated the machine leaders as possible friends instead of recognized enemies, Wolfe, Leavitt and the other machine leaders would unquestionably have dictated the provisions of the Anti-Gambling bill, and have forced that compromise which Wolfe in his speech on the Walker-Otis bill regretted so bitterly had not been made. The purpose of the Direct Primary is primarily to take away from the political bosses the monopoly which the convention system gives them in naming candidates for office, and to place such nomination in the hands of The People. To this end, under the Direct Primary laws that have of recent years been adopted, the boss-controlled convention is done away with, and the candidate for office nominated by the direct vote of The People. The play of the machine was to make the direct nomination difficult and impracticable and, if possible, entirely ineffective. The real supporters of the Direct Primary idea aimed to make the nomination as simple as possible, and easily attained, that genuine expression of the choice of the electors could be secured. But instead of aiming at simplicity and direct methods, the Direct Primary bill, introduced in the Senate by Wright and in the Assembly by Stanton[35], threw a confusing mass of partisan detail about the selection of the primary candidate. It was made practically impossible for an independent citizen believing in the principles of a given party, but withholding his right to exercise the citizen's judgment at the polls, to become a primary candidate. Throughout, the measure made it smooth sailing for the mere partisan and extremely hard for independent Republican or independent Democrat to secure party nomination[35a]. For example, the candidate for party nomination, was, according to the terms of the bill, required not only to set forth the name of the party under which he might seek nomination, but to make affidavit "that he affiliated with said party at the last preceding general election, and either that he did not vote thereat, or voted for a majority of the candidates of said party at said next preceding general election, and intends to so vote at the ensuing election." Thus, no citizen who had not supported the majority of his party candidates at the previous election, and who was unwilling to take an oath before their nomination, to support a majority of the candidates at the next ensuing election, was to be eligible for primary nomination to office. But this, and similar unfortunate provisions were practically lost sight of in the fight made over the provisions for the nomination of United States Senators, and remained in the measure as it was finally enacted into law. It may be, as the machine element contends, that provision for the nomination of United States Senators has no place in a Direct Primary law, but the fact remains that The People have inseparably linked with the direct primary idea the selection of United States Senators by direct vote. The Federal laws provide that United States Senators shall be elected by the Legislature. But in States where Direct Primary laws have been adopted, provisions have been made by which the names of candidates for the United States Senate are placed on the primary ballot the same as the name of any other candidate for a State office. The same Direct Primary laws give candidates for the Legislature opportunity to pledge themselves to accept The People's decision, and as members of the Legislature to cast their votes for such candidate for the United States Senate as The People may have named. The Legislature is thus made to abide by The People's will in electing United States Senators, precisely as the Electoral College is made to abide by The People's will in the election of the President. To be sure, no candidate for the Legislature need take the pledge if he does not care to do so, but it is recognized that where it is possible for the voter to express a choice for United States Senator, the legislative candidate who fails to pledge himself to respect The People's choice would stand slim chances of election. The Direct Primary law adopted by Oregon[35b] represents the highest development of the plan for popular selection of United States Senators. In that State the candidate for the United States Senate is nominated the same as any other candidate, the names of each successful primary nominee going on the regular ballot the same as that of any candidate for State office. The Senatorial candidate who receives the highest number of votes is not, of course, elected to the United States Senate, but candidates to the Legislature are given opportunity to pledge themselves to respect the wishes of the voters and elect to the Senate the candidate who is thus endorsed. The Legislative candidate may sign such a pledge, or he may sign a statement that he will regard the popular vote for United States Senator as merely advisory and not binding. But it is noticeable that in Oregon and other States where such wholesome direct primary measures have become laws the legislative candidate signs the pledge to abide by the mandate of the electors. Unquestionably The People of California expected some such provision in the California Direct Primary law. Unfortunately, however, Senator Wright, who had charge of the bill, is not at all in sympathy with the Oregon plan. It is claimed that the framers of the bill were as little in sympathy with the Oregon plan as Senator Wright himself. At any rate, the bill, as a sort of compromise, gave the electors opportunity to express their choice for United States Senator within party lines. The candidate for the Legislature was to be given opportunity to pledge himself to abide, not by the selection of the electors of the State, but by the selection of the electors of his party[36]. The name of a candidate for the United States Senate did not, under the original Wright-Stanton bill, go on the final ticket. His choice was confined to the primaries and was at best to be regarded only by the legislators of his own political faith. The People of California were not to be given a direct vote in the selection of United States Senators, as are The People of Oregon. If the framers of the Wright-Stanton Primary bill thought that their compromise on the United States Senator feature of the measure would placate the machine, they were much disappointed. The machine fought the arrangement for popular selection of United States Senators within party lines as positively as it would have combated the Oregon plan itself. Under either plan, the machine recognized there was always danger that the selection of a United States Senator would actually be made by The People. This would mean loss to the machine of Federal patronage, and Federal patronage is the sure rock upon which the machine in California is founded. Indeed, had either plan been incorporated into law, the re-election of Senator Frank Flint would have been made practically impossible. So the machine fought the Wright-Stanton plan as stubbornly as it would have opposed the Oregon plan. On the other hand, the best supporters of the Direct Primary idea were much disappointed that the Oregon plan had not been incorporated into the bill. Not a few of them grew lukewarm in their support of the measure. The extreme partisanship of its provisions and the failure to provide for popular selection of United States Senators hurt the measure with its friends, and failed to placate its enemies. From the beginning the most effective arguments against the bill were found in the bill itself. This was demonstrated at the public hearing, held January 26th, to consider the various provisions of the measure. The principal speakers were Hiram Johnson and Judge John F. Davis. Mr. Johnson dealt with the Direct Primary in a general way. He spoke of it in its relation to practical politics, showing that an effective Direct Primary would place this Government of ours back into the hands of The People. That is what was wanted. Every point Johnson made was received with applause from the crowd that packed the Senate Chamber. And when Johnson concluded with an appeal for "a Direct Primary law that shall be a Direct Primary law in substance and not in form alone," he was cheered to the echo. Judge Davis was not so fortunate in his text as was Mr. Johnson. Davis was there to discuss the details of the bill. He had scarcely begun before he found himself between a cross fire of questions from those on the one side who wanted an effective measure passed and on the other from those who wanted no Direct Primary at all. The opponents of the Direct Primary scored few points; the believers in the measure did. To save himself from a ridiculous position, Davis had to evade the question whether he would rather see an able and effective Democrat elected to the United States Senate than a vicious and corrupt Republican. He failed as miserably in attempting to justify the extreme partisan features of the bill. And the questions which Judge Davis could not answer came from men who wanted to see an effective Direct Primary measure enacted, not from the opponents of the Direct Primary theory. Of course this dissatisfaction of the advocates of an effective law encouraged the machine to action. The measure was deliberately left with the Committee on Election Laws. The Anti-Gambling bill had passed both Houses by February 4th, one month after the session had opened. But on that date, the Committee had just begun consideration of the measure. To be sure, the Election Laws Committee had been stacked against the Direct Primary bill, but the Public Morals Committee had been stacked against the Anti-Gambling bill as well. But the opponents of racetrack gambling were satisfied with the Walker-Otis bill, while the proponents of the Direct Primary for California were by no means satisfied with the Wright-Stanton bill. So the machine dared do with the Direct Primary bill what it did not dare do with the Anti-Gambling bill. The Walker-Otis bill had a standing which the Wright-Stanton bill did not have. That the Committee on Election Laws did not act early in the session on the Direct Primary bill was not because of the purpose of Senator Estudillo, Chairman of the Committee. Time after time did Estudillo call meetings for consideration of the bill, and repeatedly, he found only himself, and Senators Stetson and Wright in attendance. Finally, in February, Senator Estudillo succeeded in getting his committee together for consideration of the all-important measure. That the machine proposed to make the bill inoperative was recognized from the moment the committee was called to order. The manner in which this was to be done developed as rapidly. The machine's plan was as follows: (1) As to candidates: The machine proposed to amend the bill so that either a majority or a high plurality vote should be required to nominate candidates at the primary election. In the event of no candidate for a given office receiving a majority or the required plurality, the nomination was to be made by a nominating convention as under the old convention system. With such a provision it would have been easy for the machine to introduce a large number of candidates at the primaries, thus making it impracticable for any one of them to receive a majority or even a high plurality vote. This would have thrown nominations into a convention. Thus, while the State would have had a Direct Primary law, it would have been practically impossible to nominate a candidate under its provisions. (2) As to United States Senators: To deny The People a voice in the election of United States Senators, the machine had two plans: (A) To cut all provisions for the election of United States Senators out of the bill. (B) Failing in this, to amend the bill so that candidates for the Legislature would be required to regard the choice of the electors of their several districts as advisory. The vote was in no way to be held binding, nor was a legislative candidate to be required to sign a pledge to regard in any way the wishes of the electors. Under this arrangement there could be as high as 100 candidates for the United States Senate endorsed at a single election - eighty from Assembly, twenty from Senatorial districts. The effect would be, of course, the endorsement of at least several candidates, with the result that the Legislature would in the end be left to choose as under the present system. Thus, while the State would have a law which apparently gave The People a voice in the naming of Federal Senators, there would be no change whatever in the manner in which the Federal Senators were nominated and elected. [35] In addition to the Wright-Stanton bill, Senator Roseberry introduced a measure providing for a postal primary. In the appendix will be found Senator Roseberry's views on the postal primary plan. [35a] The writer has been reliably informed that this concession was made to the machine before a member of the Legislature reached Sacramento. [35b] Senator Caminetti introduced a separate bill providing the Oregon plan for the popular choice of United States Senators. He was requested not to press its passage BECAUSE IT MIGHT INJURE THE CHANCES OF PASSAGE OF THE DIRECT PRIMARY BILL. The machine claquers is never at a loss for an excuse for the defeat of a meritorious measure. [36] The original Wright-Stanton bill provided two pledges, which the candidate for the Legislature was given opportunity to sign. The first pledge bound him to abide by the choice of the electors of his party for United States Senator. It read as follows: "I further declare to The People of California and to The People of the .......... (Senatorial or Assembly) District that during my term of office, without regard to my individual preference, I will always vote for that candidate for United States Senator in Congress who shall have received for that office the highest number of votes cast by my party at the September primary election next preceding the election of a Senator in Congress." If the legislative candidate did not care to sign this pledge, he was given the alternative of signing the following: "I further declare to The People of California and to The People of the ... (Senatorial or Assembly) District that during my term of office I shall consider the vote of The People at any primary election for United States Senator as nothing more than a recommendation, which I shall be at liberty wholly to disregard, if I see fit."