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Chapter IX.

Machine Defeated in the Senate.

Reform Forces, Regardless of Party, Unite to Secure the Passage of an Effective Direct Primary Law-Agree on a Compromise Measure and Succeed in Forcing It Through the Senate - Machine Badly Beaten.

Senator Leroy A. Wright of San Diego introduced the Direct Primary bill in the Senate on January 17th, and during the month that it slumbered in the Senate Committee on Election Laws there was no reason to believe that Senator Wright was not in sympathy with the provisions of the measure. On February 1st, however, Senator Wright made the astonishing confession before the Committee on Election Laws that he was not in sympathy with that provision of his bill which gave legislative candidates opportunity to pledge themselves to abide by the choice of the electors of the State for United States Senator. From that moment began Senator Wright's fight against his own bill, which finally landed him in the camp of Leavitt, Wolfe and the other machine Senators.

At the meeting of the Senate Committee on Election Laws, held February 1st, the solid six on the Committee, Leavitt, Wolfe, Savage, Hartman, Kennedy and Hare, had voted two amendments into the bill which rendered it absolutely useless for practical purposes.

The first amendment provided that a majority instead of a plurality vote should nominate, a provision as unconstitutional as impracticable. The second amendment cut out of the measure all provision for popular vote for United States Senators.

This decided action on the part of the machine had brought consternation upon Estudillo and Stetson who wanted to see an effective measure passed. Wright in this crisis took the floor to state his position.

"For my part," said Wright, "I would never sign a pledge to vote for the candidate for United States Senator in Congress who shall have received for that office the highest number of votes cast by my party. I do believe, however, that the people of this State demand a partisan Direct Primary law. But I think that the people of Oregon recognize that they have made a mistake in going so far as they have. Under the pledge required of candidates for the Legislature in the measure before us (the Wright bill) a member of the Legislature might find himself compelled to vote for a candidate whom the voters of his district opposed. I opposed this provision when the bill was drawn, but my objection was overruled. I now stand for the bill as it has been introduced."

Wolfe, Leavitt and the rest of the machine Senators grinned exultantly as Wright stated that he did not approve the provisions of his own bill. But the faces of Estudillo and of Stetson, who had been looking upon Wright as their leader in the pro-primary fight, fell. To employ the famous expression of Speaker Stanton of the Assembly, they felt the ground slipping from under their feet. There was a sensation of farther slipping, when Wright, author of the measure, pro-primary leader and Call-heralded reformer, offered an amendment as substitute for popular State-wide choice for United States Senator, by making the vote for United States Senator advisory only[37].

The grin of satisfaction on the faces of the machine Senators broadened as Wright read his amendment while the faces of Estudillo and Stetson grew blanker. But the machine Senators were in no hurry. Things were coming their way; there was no reason for them to rush matters. So they lazily took twenty-four hours to think it over. Then they bluntly rejected Wright's compromise, the solid six, Wolfe, Leavitt, Savage, Hartman, Kennedy and Hare voting against its acceptance.

Estudillo and Stetson voted to accept the compromise. They explained their votes. Their explanations showed their earnestness in working for the best Direct Primary measure that could be passed - which indicates what might have been done under other leadership - and a loyalty to Wright, the accepted leader in the Direct Primary fight, which, to say the least, was misplaced.

"With this amendment," said Senator Stetson, in explaining his vote, "the bill is not one-half so strong as it was before. I do not like it. But I must train with one side or with the other, and for that reason shall vote for Senator Wright's substitute."

Senator Estudillo stated that he voted for the amendment against his better judgment.

"I don't believe in your amendment, Senator Wright," said Estudillo, turning to that gentleman. "I don't think it amounts to anything. I vote with you against my better judgment. I do not believe that this amendment will give The People what they want - an opportunity to vote directly for candidates for the United States Senate. My opinion is that we should pass a good bill or no bill at all. I shall, however, yield to Senator Wright, who is the recognized leader in this Direct Primary fight, and vote for his amendment."

And then the six machine members rejected the amendment.

There wasn't much left of the Direct Primary bill. The measure was, on February 16th, two weeks after the application of the committee's pruning knife, reported back to the Senate with all reference to election of United States Senators stricken from it, and the unconstitutional and impracticable majority vote required for the nomination of candidates for office, instead of the constitutional and practical plurality vote, as originally provided in the bill.

The fact should not be lost sight of that the two Senators on the Committee on Election Laws who led the fight against the Direct Primary bill, Leavitt and Wolfe, in the Committee on Public Morals led the fight against the Anti-Gambling bill. Nor should it be forgotten that two of their most docile followers in the Committee on Election Laws, Kennedy and Hare, are "Democrats." There was no partisanship shown in the ranks of the opponents of the Direct Primary bill; machine Democrats and machine Republicans united for its defeat. But when anti-machine Republican and anti-machine Democrats united for its passage, Wolfe and Leavitt were shocked beyond measure.

Machine Senators denounced the anti-machine Republicans as mongrels, enemies of the Republican party, and insisted that if the anti-machine Republicans persisted in continuing with the anti-machine Democrats to secure the passage of an effective Direct Primary law, the Republican party in California would go to smash.

The arrogant course of the machine members of the Election Laws Committee, had at least one good effect it drove the anti-machine Republicans and the anti machine Democrats together as a matter of self-defense. The anti-machine Republicans and Democrats saw the machine Democrats and Republicans united to defeat the passage of an effective Direct Primary measure. So the anti-machine Republicans and Democrats organized that they might successfully combat the organized machine Democrats and Republicans. For the first time in the history of the California Legislature, so far as the writer knows, the Senate divided on the only practical line of division for the enactment of good measures and the defeat of bad ones - with the anti-machine Senators on one side and the machine Senators on the other.

The "band-wagon" Senators of the Welch variety, and the doubtful Senators, were left for the moment to herd by themselves.

The anti-machine forces held meetings - caucuses if you like - to decide upon the course to be pursued. They numbered at first twenty members, fifteen Republicans and five Democrats. The Republicans were Bell, Birdsall, Black, Boynton, Burnett, Cutten, Estudillo, Hurd, Price, Roseberry, Stetson, Strobridge, Thompson, Walker and Wright; the Democrats, Caminetti, Campbell, Cartwright, Miller and Holohan. George Van Smith, of the San Francisco Call, credited with being an expert on Direct Primary legislation, was admitted to the deliberations of the twenty.

Senator Price, however, became alarmed at the irregularity of anti-machine Republicans meeting with anti machine Democrats, gathered his virtuous partisan skirts about him and fled in dismay.

Senator Caminetti also left the meeting. Caminetti is a strong advocate of the Oregon plan for the election of United States Senators. When Caminetti found Senator Wright, the accepted leader of the pro-primary forces, opposed not only to the Oregon plan, but to any plan that would give electors a State-wide vote for United States Senators, he refused to go to Wright's assistance. Later on, however, when Wright went to Caminetti pleading for support, Caminetti agreed to abide by the decisions of the anti-machine caucus. Curiously enough, after the machine had worn the anti-machine forces out, Caminetti was the only Senator who refused to accept the machine's amendments to the bill which the anti-machine caucus had agreed upon.

With Price and Caminetti out, the anti-machine forces were reduced to eighteen Senators, although it was known that Rush sympathized with the movement but was not present because he had been unavoidably detained.

The eighteen organized by electing Senator Estudillo chairman, and Senator Boynton secretary. Senator Wright made a short address in which he virtually threw up his hands. He told what the Wolfe-Leavitt element had done with the bill in committee, and stated that unless the anti-machine forces got together, the machine would amend the measure into ineffectiveness. Following Wright's address the anti-machine Senators considered the original Wright-Stanton bill under three heads:

(1) Shall a mere plurality, or a majority, or a high plurality be required to nominate at a primary election?

(2) Shall the partisan features be eliminated from the measure?

(3) Shall the provisions of the measure be extended to the election of United States Senators?

The first question was brought up on Stetson's motion that a twenty-five per cent plurality be required to nominate. The machine aimed to fix the plurality at forty per cent, but even the twenty-five per cent compromise was denied. The motion received but four votes, in its favor.

Then came discussion of the clause quoted in the previous chapter, which requires of each primary candidate that he make affidavit that he supported his party ticket at the previous election, and proposes to support it at the coming election. It was understood by all who had any thing to do with the Direct Primary bill that the clause made it impossible for a primary candidate to run on two primary tickets. Cartwright moved that the clause be stricken from the bill. The motion was lost by a vote of 14 to 4. Senators like Black of Santa Clara voted against the motion in the interest of harmony, although personally they favored the elimination of all partisan features.

The question of primary nomination of candidates for the United States Senate was then taken up. Senator Wright moved that the vote for Senators be advisory only, and that it be by Assembly and Senatorial districts instead of State-wide, as the original bill provided. The vote was as follows:

For Wright's motion - Burnett, Wright - 2.

Against Wright's motion - Bell, Birdsall, Black, Boynton, Cartwright, Cutten, Holohan, Miller, Roseberry, Stetson, Strobridge, Walker - 12.

Excused from voting - Campbell, Estudillo, Hurd, Thompson.

A scene of great confusion followed. Campbell, who had refused to vote because he insisted upon the Oregon plan of electing United States Senators by direct vote of The People, insisted that the provision be incorporated into the bill. He refused to be bound by any plan that would restrict the election within party lines. So they blocked Campbell in one corner of the room with a table, and reasoned with him. Twenty-one votes were required to pass the Direct Primary bill in the Senate. At that time counting Rush, who was not present at the caucus, the anti-machine forces had only nineteen. They could not afford to lose even one of their number.

Above the confusion, Senator Holohan managed to make his voice heard.

"Gentlemen," he said, "I would like to have the Oregon plan incorporated into this bill, But that seems to be impracticable at this time. Eventually, I am sure California will adopt the Oregon plan of naming the United States Senator, which to my way of thinking is the most common sense, the fairest, the most American plan. But if we are to pass a Direct Primary measure at the present session, we must reach a basis of compromise. Let us now get together and stand together on a measure upon which we can all agree. Let us pledge ourselves to abide by the decision of this meeting, and stand or fall by the bill which we have agreed upon."

Holohan's counsel prevailed. The Senators present pledged themselves to abide by the decision of the meeting and to stand or fall by the bill which they had agreed upon. And Senator Leroy A. Wright was among them and was bound in honor as every Senator present was bound in honor to stand by the bill which had been agreed upon.

The uniting of the anti-machine Senators to fight the combined machine Democrats and Republicans called down upon the anti-machine element the denunciation of the machine press. The Catkins newspapers, for example, sputtered their condemnation of Republican Senators who would unite with Democratic Senators in "rump caucus."

On the other hand the San Francisco Call, at that time warmly supporting the anti-machine movement in the Senate, was extreme in denouncing Lieutenant-Governor Porter, presiding officer of the Senate, Leavitt, Wolfe, and all others who were opposing the passage of the Direct Primary measure as it had originally been introduced by Wright, and as it had been agreed upon in the reform caucus[38].

The fight in the Senate came on the second reading of the bill February 18th. On the 16th, however, the setting for the contest had been fixed by the majority of the Committee on Election Laws, which reported with favorable recommendation the measure as the Committee had cut it to pieces. The minority of the Committee, Estudillo, Stetson and Wright, reported back the bill agreed upon by the non-partisan caucus of anti-machine Senators.

But the fight did not come over either report. When the bill came up on the 18th for second reading and amendment, Senator McCartney, on behalf of the machine forces, introduced a resolution over which the contest waged. McCartney's resolution provided that the bill should be so amended that the primary vote for United States Senator should be by districts and advisory only, and that for county and local offices a vote of 25 per cent and for State offices a vote of 40 per cent should nominate[39].

The debate was over this resolution. The motion for its adoption was defeated by a vote of twenty-seven against to thirteen for[40].

Incidentally, the debate settled one of the most important questions affecting the bill, namely, the percentage of votes to be required for primary nominations. The machine, to render the measure inoperative, was contending for a majority or at least a high plurality vote, while the anti-machine element was contending for a mere plurality. The debate developed the fact, that any provision for other than a mere plurality vote would be unconstitutional. This service was performed by Senator Cutten of Humboldt[41]. Senator Cutten's clear presentation of this much discussed point, settled the vote percentage question right there. When the measure was under consideration by the Assembly Election Laws Committee, Grove L. Johnson did suggest that a 40 per cent plurality be required to nominate. But no serious attempt was made so to amend the bill, after Cutten's speech, and the defeat of the McCartney amendment.

Naturally, the anti-machine forces felt warmly encouraged by this complete defeat of the machine. The San Francisco Call, the recognized advocate of the Direct Primary bill, the next day, February 19th, said of the outcome:

"Twenty-seven Senators at Sacramento stood true to their party
pledges, and voiced the will of the people in their votes on the
Direct Primary bill yesterday. Thirteen other Senators wrote into
the record conclusive proof of their unfitness for the offices they
hold, when they voted against the Wright-Stanton bill, and for the
corrupt political machine which is the Southern Pacific Railroad.
Every man of these thirteen confessed corruptionists knew what he
was doing, knew whose will he was putting above The People's. Every
one of these thirteen betrayers of the public weal has written the
epitaph of his political tombstone."

The Call was as generous in its praise of the anti-machine Democrats and Republicans as it was bitter against the machine Senators who had endeavored to force the McCartney amendment into the bill. While that paper printed the names of the thirteen in bold, black type on the first page under the heading, "These Men Voted for the Machine," in type just as bold and just as black it printed in an honor column the names of the twenty-seven who had voted against the McCartney amendment, under the heading, "These Men Voted for the People."

Said the Call in its admirable report of the defeat of the McCartney amendment, of the original nineteen anti-machine Senators who had organized to resist the machine:

"Genuine manhood has been on tap at every conference of the
independents. They have not squabbled for partisan advantage. They
have worked together to give The People an honest and genuine
Direct Primary measure. Senator Wright won a brilliant fight. He
won it with and through the earnest co-operation of the unbossed
Democrats and Republicans."

Said the Call of the measure itself in its issue of February 18th - the day of the defeat of the machine Senators:

"The Direct Primary bill is The People's bill. Such men as Dooling,
Wright, Stanton, Davis and Cartwright made it. There is no honest
argument against it, there will be no honest Senators against it."

Such was the view of the Call on February 18. Few were willing to believe on that date that within a month the Call would have thrown its influence on the side of Leavitt and Wolfe and Warren Porter in an attempt to force part of the McCartney amendment into the Direct Primary bill. It did not seem possible then that within a month the Call would be denouncing, ridiculing and misrepresenting Senators whose efforts had resulted in the defeat of the McCartney amendment because of the refusal of these anti-machine Senators to join with the machine Senators whom they had once defeated, and accept the amendment which they had once rejected. It did not then seem possible that on March 18th the Call would be behind the thirteen "betrayers of the public weal," itself betraying the Senators whose "genuine manhood" had on February 18 appealed to its editors so strongly.

But such was to be. And, too, the combination of Calkins Syndicate, Lieutenant-Governor Porter, Senator Leroy A. Wright, the San Francisco Call and the thirteen "betrayers of the public weal" proved too much for the little band of anti-machine Senators. And what is more, backed by the Call, the machine leaders finally amended the Direct Primary bill, which on February 18th the Call had stated very positively no honest Senator would be against.

[37] Wright's amendment had been carefully typewritten before the meeting. It read as follows,

"Party candidates for the office of United States Senator shall have their name placed on the official primary election ballots of their respective parties in the manner herein provided for State Office, provided, however, that the vote for candidate for United States Senator shall be an advisory vote for the purpose of ascertaining the sentiment of the voters in their respective parties."

[38] On February 17th the Call said of Senator Eddie Wolfe's opposition to the bill:

"The fight (Direct Primary) promises to be both spirited and bitter. Eddie Wolfe of San Francisco, picked by the machine to make its fight for the garroting of the Direct Primary bill, by the injection of a majority nominating clause, has served notice that he proposes to tear the reformers to pieces."

Of Leavitt and other machine Senators, the Call on the same date said:

"Leavitt, who bossed the fight against the Otis-Walker bill, will furnish the brains for the fight against the Direct Primary bill, and every one of the seven who voted against the Otis-Walker bill, are more or less frankly against the primary bill. Savage, who did not vote against the Walker-Otis bill because his vote would have done no good, and Hartman and Hare, who did vote against the Otis-Walker bill, have gone on record against honest direct Primaries, as members of the majority of the Senate Committee on Election Laws. Savage is frank enough to admit that he is opposed to any direct primary law."

[39] The McCartney resolution was in full-as follows:

"Resolved, That Senate Bill No. 3, and all pending amendments thereto, be and the same is hereby referred to the Committee on Elections and Election Laws, with the following instructions:

"1. Amend the bill so as to give an advisory vote by districts on United States Senators."

"2. Amend the bill by providing for a percentage of votes before nomination by direct vote of the people, as follows: If the highest candidate for any county or local office receive less than 25 per cent of the vote of his party, and if the highest candidate for a State office receive less than 40 per cent of the vote of his party, that the nomination shall be referred to a convention of delegates elected at the same time that candidates are voted on by direct vote."

"3. Amend the bill by providing that the convention aforesaid shall prepare the platform of the party and perfect party organization."

[40] The vote in full was as follows:

Against the McCartney amendment and in effect for the bill agreed upon by the anti-machine Senators: Anthony, Bell, Birdsall, Black, Boynton, Burnett, Caminetti, Campbell, Cartwright, Curtin, Cutten, Estudillo, Holohan, Hurd, Lewis, Martinelli, Miller, Price, Roseberry, Rush, Sanford, Stetson, Strobridge, Thompson, Walker, Welch, Wright - 27.

For the McCartney amendment and in effect against the bill agreed upon by the anti-machine Senators: Bates, Bills, Finn, Hare, Hartman, Kennedy, Leavitt, McCartney, Reily, Savage, Weed, Willis, Wolfe - 13.

[41] Cutten showed that Section 13, Article XX of the State Constitution provides that "a plurality of the votes given at any election shall constitute a choice where not otherwise directed in this Constitution."

Senator Cutten then proceeded to demonstrate that a primary election is an election within the meaning of the terms used. The Supreme Court of Indiana has so declared, and, coming nearer home, Cutten showed that the California Supreme Court has so held also.

In The People vs. Cavanaugh, 112 California, the Supreme Court held that any primary election that should become mandatory becomes an election and only those primaries that may be optional with a party as to whether or not they should be held, are not elections.

The Wright-Stanton bill and the Direct Primary amendment to the Constitution make the direct primaries mandatory, nor is there anything in the State Constitution providing that anything other than a plurality vote shall be required to nominate. For the Legislature to have yielded to the machine's demand that a majority or high plurality vote be required to nominate and inserted such a provision in the Direct Primary bill, would have been to render that measure unconstitutional, for under the plain provisions of the Constitution only a plurality vote can be required to nominate.

Were a majority or even high percentage plurality vote required to nominate, the Direct Primary law would have been made unconstitutional, because:

1. A plurality might not be equal to the percentage or majority.

2. A percentage or majority contemplates a convention to nominate in case the candidate does not receive the percentage or majority, and a convention, the best authorities hold, is prohibited under the constitutional amendment providing for the primary election.

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