Mr. LOZIER. You see, the newspapers had given such publicity to the excessive expenditures in his behalf that when the decision was announced the public asked why he was held not responsible, and all public speakers and the newspapers proceeded to explain that the court held that Congress had no power to regulate the expenditure of money in primaries, that there were no primaries when our Constitution was adopted; but, as someone has said, we had no railroads when our Constitution was adopted but they have extended the provisions of the commerce clause of our Constitution so as to embrace railroads, although our constitutional fathers never dreamed of our railway system of transportation. However, I think that both parties, notwithstanding the Newberry decision, have proceeded upon the theory that it is a safe and wise thing to make these returns, to require these reports and encourage candidates to keep within the provisions of the law.

Mr. PAGE. Now, a great many returns have not been made in some cases, deliberately-in others, inadvertently.

The CHAIRMAN. That is, the law has not been followed? ports whatever have been filed?

No re

Mr. PAGE. No reports whatever, especially in respect to primaries. Mr. CLEARY. Is it anybody's business to try to go any further?

Mr. PAGE. That is just the question. It certainly is not the business of the Clerk of the House. I suppose it would be the business of some aggrieved party.

Mr. PHILLIPS. Mr. Page, why could you not accomplish just as satisfactory a result by having incorporated in the oath taken by a Member of Congress when taking his seat a statement to the effect that he had not expended over a certain definite sum for his nomination and election, say, $5,000 or $10,000 or whatever may be fixed, and then the various organizations and associations gathered together to promote the election of any candidate should be forced to file their detailed accounts? Would we not be just as well off?

Mr. PAGE. I suppose it would be competent for Congress to amend the statute with respect to the oath of office to that effect, but I question very seriously whether they would do it.

Mr. PHILLIPS. What is the difference between a man filing a report and making a sworn statement?

Mr. PAGE. I do not suppose there is any difference, in effect.

The CHAIRMAN. We shall meet here next Thursday morning further to consider this bill, and to hear Mr. Cable. I will say to the members of the committee that Mr. Ramseyer, a Member of Congress from the State of Iowa, has asked to be heard on this bill and he will also be heard, probably at the next meeting.

The committee now stands adjourned.

(Whereupon, at 11.45 o'clock a. m., the committee adjourned to Thursday, February 28, at 10 a m.)

COMMITTEE ON ELECTION OF PRESIDENT,

VICE PRESIDENT, AND REPRESENTATIVES IN CONGRESS,
COMMITTEE ON ELECTION OF PRESIDENT,

HOUSE OF REPRESENTATIVES,

Thursday, February 28, 1924.

The committee met at 10 o'clock a. m., Hon. Hays B. White (chairman) presiding.

The CHAIRMAN. The committee will be in the order. I would like to ask you, Mr. Cable, before you proceed with your consecutive statement, if your bill proposes to extend its operation to the control of primary elections?

Mr. CABLE. No; it does not.

STATEMENT OF HON. JOHN L. CABLE, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF OHIO.

Mr. CLEARY. Does not your bill say here "extending to candidates for nomination"?

Mr. CABLE. That refers to the title of the present corrupt practices act.

Mr. CLEARY. Which does not extend to primaries?

Mr. CABLE. It has attempted to, but it can not, under the decisions of the court.

The CHAIRMAN. That was the subject my question was intended to clear up.

Mr. CABLE. I can make a statement here, if you want me to, on this proposition.

The CHAIRMAN. Have you a consecutive statement you wish to make?

Mr. CABLE. Yes; but I am willing to be interrupted at any time. The CHAIRMAN. Well, you may proceed.

Mr. CABLE. H. R. 6851 is intended to amend the present laws relating to campaign contributions, and the primary object is to provide publicity for receipts and expenditures of campaign committees and of the candidates for the Senate and House as well as Delegates to Congress.

Congress has power to pass such legislation by virtue of certain provisions of the Constitution of the United States. For example, Article I, section 1, provides:

That 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 of that same article provides:

That 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 States shall have the qualifications requisite for electors of the most numerous branch of the State legislature

Then, section (3) was superseded by the seventeenth amend ment to the Constitution, dealing with the election of Senators by the people. Originally they were elected by the legislatures of th several States. Now it is provided in 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) provides:

The times, places, and manner of holding elections for Senators and Representatives shall be prescribed by each State by the legislature thereof; but the Congress may at any time by law alter such regulations, except as to the places of choosing Senators

Section (5) provides that each House shall be the judge of the elections, returns, and qualifications of its own Members.

Pursuant to these sections of the Constitution, on January 26, 1907, Congress passed an act which prohibited corporations from making contributions in connection with any election at which a presidential or vice presidential elector or Representative to Congress is to be voted for in any election by any State legislature. Then this act was amended (criminal provisions). March 4, 1909; and then, in 1910, 1911, and 1912, and since 1912 there has been substantially no amendment to this subject except in 1918, the Sixtyfifth Congress, it was provided in substance that whoever shall promise, offer, give, or tender any contract, undertaken for value, to any person to vote or withhold his vote for or against a candidate or solicit votes for promise for some position shall be guilty of a crime.

Now, those laws were in effect when Newberry and Ford had their primary contest in Michigan, and Mr. Newberry was in the Navy and his friends spent, I expect, $100,000 for his nomination, and the laws of Michigan do not permit that amount of expenditure. In fact the law of Michigan provides:

No sums of money shall be paid and no expense authorized to be incurred by or on behalf of any candidates 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 25 per cent of one year's compensation or salary of the office for which he is a candidate *

Presumably that applies to United States Senators, for Newberry and his associates were tried and convicted and sentenced and the Circuit Court of Appeals of the United States affirmed the conviction, and then the case was carried to the Supreme Court of the United States.

Mr. Hughes, Secretary of State, was then employed as counsel and his contention was that the power of Congress was limited to enacting laws dealing with elections and not nominations. In fact, the Supreme Court on the 2d day of May, 1921, reversed the conviction on the ground that the grant of power to Congress to regulate the manner of holding elections, under Article I, section (4) of the Constitution, did not bestow on Congress the authority to control party primaries or conventions for designating candidates. That is, the majority of the courts seem to hold that the power to regulate the manner of holding elections was limited to general elections and that there is no power to regulate the manner of holding primary elections or party conventions.

I was and still am a member of Elections Committee No. 2: and last year-last Congress-Mr. Luce was chairman when we had the case of Rainey . Shaw, of Illinois, up for consideration, and Mr. Rainey, contending that Mr. Shaw had violated some provision of the law with reference to his nomination for Congress, was contesting the case. Mr. Luce wrote a letter to the Attorney General for

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his interpretation of the Newberry case, and the Attorney General replied that in his opinion Congress's authority to legislate on the subject was limited to elections, and I would like permission to insert House Report 498, Sixty-seventh Congress, second session, containing the opinion of the Attorney General as a part of the record dealing with that subject.

The CHAIRMAN. If there is no objection, it is so ordered.

(There being no objection, the report is inserted, as follows:)

House Report No. 498, Sixty-seventh Congress, second session.]

CONTESTED-ELECTION CASE OF RAINEY . SHAW.

The committee on Elections No. 2, to which was referred the contestedelection case of Henry T. Rainey, r. Guy L. Shaw, from the twentieth congressional district of the State of Illinois, reports as follows:

Guy L. Shaw, it is admitted, received a majority of the votes cast at the election November 2, 1920. His seat is contested by Henry T. Rainey by reason of circumstances connected with the corrupt practices act and the statute relating to procedure in election contests. An allegation of improper use of certain funds received by Mr. Shaw was not supported by any evidence whatever, nor was it further pressed upon the committee, by argument or otherwise. There was no charge of illegitimate use of money among the voters of the district, nor of expenditure beyond the limit prescribed by law. In the end the contestant restricted his contentions to matters of failure to comply with statutory requirements.

After notice of contest had been filed, the Supreme Court, in the case of Truman H. Newberry et. al. v. The United States, gave an opinion, May 2, 1921, bearing upon the corrupt practices act. As to the effect thereof, the Attorney General has advised your committee as follows:

"It is my opinion that the Newberry decision should be construed as invalidating all of the provisions of the act referred to, relating to nominations for the office of Senator or Representative in Congress, whether by primaries, nominating conventions, or by indorsement at general or special elections. I am also of the opinion that as to statements of receipts and disbursements to be filed by candidates for the office of Representative in Congress under section 8 of the act, the only provision now in force and effect is the one which requires such statements to be filed in connection with the election of such candidates."

On

Agreeing with this view, we conclude that such of the allegations of the contestant as concerned the primaries in the district in question fall to the ground, by reason of the unconstitutionality of so much of the act as related to nominations; but that those allegations connected with the election should be considered. These center upon the contention that Mr. Shaw should be held to be disqualified because he failed to file within the time prescribed statements of his receipts and expenses in connection with the election. this point the testimony of Mr. Shaw is to the effect that he duly mailed such statements. They were not received by the Clerk of the House. Had Mr. Shaw taken advantage of the statute and sent the documents by registered mail, no question would have arisen. However, the law does not make registration a requisite, and, as a matter of fact, many returns forwarded without registration have been unhesitatingly accepted. Apart from the nonarrival of the statements, there was no evidence tending to contradict Mr. Shaw's testimony, but, on the other hand, there was evidence to the effect that at least some of the statements had been duly prepared. With the case so standing, it seemed clear to your committee that in this particular no sufficient reason had been advanced for declaring Mr. Shaw to be disqualified, even if it were to be assumed that the requirements of law in the matter of filing statements are mandatory rather than directory. Therefore that question need not here be once more discussed, though in passing it may not be undesirable to point out that the precedents support in general the view that such requirements are directory and therefore that failure to observe them will not of itself invalidate an election.

The only other contention seriously pressed in behalf of the contestant was that Mr. Shaw had failed to comply with the statutory requirement for the filing of an answer to notice of contest within a stipulated time. Here the

evidence showed no willful neglect on the part of Mr. Shaw, nor any injury to Mr. Rainey. Mr. Shaw appears to have erred in his understanding as to what would be a compliance with the law, and did not receive legal advice in the matter until the time for proper reply had passed, but a proper reply was then made, and in ample time to protect all of Mr. Rainey's rights. Under such circumstances, where no harm has resulted to anybody, where no act or failure to act has shown moral obliquity, where no statutory purpose has been thwarted to the public detriment, there is no ground for the contention that a district ought to be deprived of the services of its duly chosen representative, or that the dignity or the honor of the House calls for his exclusion.

Therefore the committee recommends to the House the adoption of the following resolutions:

“Resolved, That Henry T. Rainey was not elected a Representative in this Congress from the twentieth congressional district of the State of Illinois and is not entitled to a seat herein.

Resolved, That Guy L. Shaw was duly elected a Representative in this Congress from the twentieth congressional district of the State of Illinois and, is entitled to retain a seat herein."

Mr. CABLE. The situation, then, that we face to-day is as follows: Women now have the right to vote. The limit of expenditure by a candidate should be increased, as the vote has doubled. That is the first proposition.

Next, the corrupt practice act dealing with the election of Senators has not been amended since the Constitution, Article XVII, providing for the election of Senators by the vote of the people, was adopted. The act refers to election of Senators by State legislatures, and in that particular there is no law passed by Congress, attempting in any way to regulate the election of Senators by direct vote. It is absolutely void. There is no limit of expenditures under Federal law.

The Newberry case holding that Congress has no power over primaries, there is nothing in the law regulating the election of Senators.

Not only that, but in such States as Illinois, Mississippi, Rhode Island, Tennessee, and Arkansas, there is no corrupt practices act at all. In Arizona, Colorado, Delaware, Georgia, New York, Pennsylvania, Vermont and Tennessee there is no limit on the amount a candidate may spend for his election. In New Jersey it runs as high as $50,000 to $75,000

Mr. CLEARY. There is no limit in New York?

Mr. CABLE. No; not according to the State law.

Mr. CLEARY. I am not a lawyer but I have always understood there was.

Mr. CABLE. This memorandum was furnished me by the Legislative reference section of the Library of Congress and I would like permission to insert this into the record. It gives the reference to every State law.

The CHAIRMAN. If there is no objection, it is so ordered.

Mr. CLEARY. We have to give returns of what we spend.

Mr. CABLE. That is under the State law, as I understand it. Do you file it with the board there in New York?

Mr. CLEARY. Yes.

Mr. CABLE. You have an act, but there is no limit to the amount you can spend?

Mr. CLEARY. I do not know what it is. I do not know what the purpose is in having to file it.