256 U.S.

232
41 S.Ct. 469
65 L.Ed. 913

NEWBERRY et al.
v.
UNITED STATES.
No. 559.
Argued Jan. 7 and 10, 1921.
Decided May 2, 1921.

[Syllabus from pages 232-234 intentionally omitted]

Mr. Charles E. Hughes, or New York City, for plaintiffs in error.
[Argument of Counsel from pages 234-240 intentionally omitted]
Messrs. Solicitor General Frierson, of Chattanooga, Tenn., and Frank C.
Dailey, of Indianapolis, Ind., for the United States.
[Argument of Counsel from pages 240-243 intentionally omitted]
Mr. Justice McREYNOLDS delivered the opinion of the Court.

Plaintiffs in errorTruman H. Newberry, Paul H. King, and 15 otherswere

found guilty of conspiring (Criminal Code, 37; Comp. St. 10201) to violate
section 8, Act of Congress approved June 25, 1910, c. 392, 36 Stat. 822-824, as
amended by Act of August 19, 1911, c. 33, 2, 37 Stat. 25-29 (Comp. St. 195),
the federal Corrupt Practices Act, which provides:

'No candidate for Representative in Congress or for Senator of the United

States shall give, contribute, expend, use, or promise, or cause to be given,
contributed, expended, used, or promised, in procuring his nomination and
election any sum, in the aggregate, in excess of the amount which he may
lawfully give, contribute, expend, or promise under the laws of the state in
which he resides: Provided, that no candidate for Representative in Congress
shall give, contribute, expend, use, or promise any sum, in the aggregate,

exceeding five thousand dollars in any campaign for his nomination and
election; and no candidate for Senator of the United States shall give,
contribute, expend, use, or promise any sum, in the aggregate, exceeding ten
thousand dollars in any campaign for his nomination and election:
3

'Provided further, that money expended by any such candidate to meet and
discharge any assessment, fee, or charge made or levied upon candidates by the
laws of the state in which he resides, or for his necessary personal expenses,
incurred for himself alone, for travel and subsistence, stationery and postage,
writing or printing (other than in newspapers), and distributing letters, circulars,
and posters, and for telegraph and telephone service, shall not be regarded as an
expenditure within the meaning of this section, and shall not be considered any
part of the sum herein fixed as the limit of expense and need not be shown in
the statements herein required to be filed.' Comp. St. 195(7).

Act No. 109, Sec. I, Michigan Legislature, 1913, prohibits expenditure by or on

behalf of a candidate, to be paid by him, in securing his nomination, of any sum
exceeding 25 per centum of one year's compensation; and puts like limitation
upon expenditures to obtain election after nomination. Section I is copied
below.1

Taken with the state enactment, the federal statute in effect declares a candidate
for the United States Senate punishable by fine and imprisonment, if (except
for certain specified purposes) he give, contribute, expend, use, promise or
cause to be given, contributed, expended, used or promised in procuring his
nomination and election more than $3,750one-half of one year's salary.
Under the construction of the act urged by the government and adopted by the
court below it is not necessary that the inhibited sum be paid, promised or
expended by the candidate himself, or be devoted to any secret or immoral
purpose. For example, its open and avowed contribution and use by supporters
upon suggestion by him or with his approval and cooperation in order to
promote public discussion and debate touching vital questions or to pay
necessary expenses of speakers, etc., is enough. And upon such interpretation
the conviction below was asked and obtained.

The indictment charges: That Truman H Newberry became a candidate for the
Republican nomination for United States Senator from Michigan at the primary
election held August 27, 1918; that by reason of selection and nomination
therein he became a candidate at the general election, November 5, 1918; that
he and 134 others (who are named) at divers times from December 1, 1917, to
November 5, 1918, unlawfully and feloniously did conspire, combine,
confederate, and agree together to commit the offense on his part of wilfully

violating the Act of Congress approved June 25, 1910, as amended, by giving,
contributing, expending, and using and by causing to be given, contributed,
expended and used, in produring his nomination and election at said primary
and general elections, a greater sum than the lawsof Michigan permitted and
above ten thousand dollars, to wit, $100,000, and on thepart of the other
defendants of aiding, counseling, inducing, and procuring Newberry as such
candidate to give, contribute, expend, and use or cause to be given, contributed,
expended and used said large and excessive sum in order to procure his
nomination and election. Plaintiffs in error were convicted under count one, set
out in the margin.2
7

The court below overruled a duly interposed demurrer which challenged the
constitutionality of section 8; and by so doing we think fell into error.

Manifestly, this section applies not only to final elections for choosing Senators
but also to primaries and conventions of political parties for selection of
candidates. Michigan and many other states undertake to control these
primaries by statutes and give recognition to their results. And the ultimate
question for solution here is whether under the grant of power to regulate 'the
manner of holding elections' Congress may fix the maximum sum which a
candidate therein may spend, or advise or cause to be contributed and spent by
others to procure his nomination.

Section 4, article 1, of the Constitution provides:

10

'The times, places and manner of holding elections for Senators and
Representatives, shall be prescribed in each state by the Legislature thereof; but
the Congress may at any time by law make or alter such regulations, except as
to the places of choosing senators.'

11

Here is the source of Congressional power over the elections specified. It has
been so declared by this courtEx parte Siebold, 100 U. S. 371, 25 L. Ed. 717;
United States v. Gradwell 243 U. S. 476, 481, 37 Sup. Ct. 407, 61 L. Ed. 857
and the early discussions clearly show that this was then the accepted opinion.
The Federalist, LVIII, LIX, LX; Elliot's Debates, vol. II, 50, 73, 311; volume
III, 86, 183, 344, 375; volume IV, 75, 78, 211.

12

We find no support in reason or authority for the argument that because the
offices were created by the Constitution, Congress has some indefinite,
undefined power over elections for Senators and Representatives not derived
from section 4.

13

'The government, then, of the United States, can claim no powers which are not
granted to it by the Constitution, and the powers actually granted, must be such
as are expressly given, or given by necessary implication.' Martin v. Hunter's
Lessee, 1 Wheat. 304, 326 (4 L. Ed. 97).

14

Clear constitutional provisions also negative any possible inference of such

authority because of the supposed anomaly 'if one government had the
unrestricted power to control matters affecting the choice of the officers of
another.' Mr. Iredell (afterwards of this court) in the North Carolina Convention
of 1788, pointed out that the states maymust indeedexert some unrestricted
control over the federal government:

15

'The very existence of the general government depends on that of the state
governments. The state Legislatures are to choose the senators. Without a
Senate there can be no Congress. The state Legislatures are also to direct the
manner of choosing the President. Unless, therefore, there are state Legislatures
to direct that manner, no President can be chosen. The same observation may
be made as to the House of Representatives, since, as they are to be chosen by
the electors of the most numerous branch of each state Legislature. If there are
no state Legislatures, there are no persons to choose the House of
Representatives. Thus it is evident that the very existence of the general
government depends on that of the state Legislatures.' Elliot's Debates, vol. IV,
p. 78.

16

See also The Federalist, XLIV.

17

The federal features of our government are so clear and have been so often
declared that no valuable discussion can proceed upon the opposite assumption.

18

Undoubtedly elections within the original intendment of section 4 were those

wherein Senators should be chosen by Legislatures and Representatives by
voters possessing 'the qualifications requisite for electors of the most numerous
branch of the state Legislature.' Article 1, 2 and 3. The Seventeenth
Amendment, which directs that Senators be chosen by the people, neither
announced nor requires a new meaning of election and the word now has the
same general significance as it did when the Constitution came into existence
final choice of an officer by the duly qualified electors. Hawke v. Smith, 253 U.
S. 221, 40 Sup. Ct. 495, 64 L. Ed. 871. Primaries were then unknown.
Moreover, they are in no sense elections for an office but merely methods by
which party adherents agree upon candidates whom they intend to offer and
support for ultimate choice by all qualified electors. General provisions

touching elections in Constitutions or statutes are not necessarily applicable to

primariesthe two things are radically different. And this view has been
declared by many state courts. People v. Cavanaugh, 112 Cal. 674, 44 Pac.
1057; State v. Erickson, 119 Minn. 152, 137 N. W. 385; State v. Taylor, 220
Mo. 618, 119 S. W. 373; State v. Woodruff, 68 N. J. Law, 89, 52 Atl. 294;
Commonwealth v. Wells, 110 Pa. 463, 1 Atl. 310; Ledgerwood v. Pitts, 122
Tenn. 570, 125 S. W. 1036.
19

Sundry provisions of the Constitution indicate plainly enough what its framers
meant by elections and the 'manner of holding' them:

20

'The House of Representatives shall be composed of members chosen every

second year by the people of the several states.' Article 1, 2, cl. 1.

21

'No person shall be a Representative * * * who shall not, when elected, be an

inhabitant of the state in which he shall be chosen.' Article 1, 2, cl. 2.

22

'When vacancies happen in the representation from any state, the executive
authority thereof shall issue writs of election to fill such vacancies.' Article 1,
2, cl. 4.

23

'Immediately after they [the Senators] shall be assembled in consequence of the

first election, they shall be divided as equally as may be into three classes.'
Article 1, 3, cl. 2.

24

'No person shall be a Senator * * * who shall not, when elected, be an

inhabitant of that state for which he shall be chosen.' Article 1, 3, cl. 3.

25

'Each House shall be the judge of the elections, returns, and qualifications of its
own members.' Article 1, 5, cl. 1.

26

'No Senator or Representative shall, during the time for which he was elected,
be appointed to any civil office,' etc. Article 1, 6, cl. 2.

27

'The executive power shall be vested in a President of the United States of

America. He shall hold his office during the term of four years, and, together
with the Vice President, chosen for the same term, be elected as follows.'
Article 2, 1, cl. 1.

28

'The President shall, at stated times, receive for his services, a compensation,

which shall neither be increased nor diminished during the period for which he
shall have been elected.' Article 2, 1, cl. 6.
29

And provisions in the Seventeenth Amendment are of like effect.

30

The plain words of the Seventeenthe Amendment and those portions of the
original Constitution directly affected by it, should be kept in mind. Article 1,
31:

31

'The Senate of the United States shall be composed of two Senators from each
state, chosen by the Legislature thereof, for six years; and each Senator shall
have one vote. Immediately after they shall be assembled in consequence of the
first election, they shall be divided as equally as may be into three classes. * * *
And if vacancies happen by resignation, or otherwise, during the recess of the
Legislature of any state, the executive thereof may make temporary
appointments until the next meeting of the Legislature, which shall then fill
such vacancies.'
Seventeenth Amendment:

32

'The Senate of the United States shall be composed of two Senators from each
state, elected by the people thereof, for six years; and each Senator shall have
one vote. The electors in each state shall have the qualifications requisite for
electors of the most numerous branch of the state Legislatures. When vacancies
happen in the representation of any state in the Senate, the executive authority
of such state shall issue writs of election to fill such vacancies: Provided, that
the Legislature of any state may empower the executive thereof to make
temporary appointment until the people fill the vacancies by election as the
Legislature may direct. This amendment shall not be so construed as to affect
the election or term of any Senator chosen before it becomes valid as part of the
Constitution.'

33

As finally submitted and adopted the amendment does not undertake to modify
article 1, 4, the source of congressional power to regulate the times, places
and manner of holding elections. That section remains 'intact and applicable
both to the election of Representatives and Senators.' Cong. Rec. vol. 46, p.
848. When first reported, January 11, 1911, by Senator Borah for the Judiciary
Committee, the proposed Seventeenth Amendment contained a clause
providing:

34

'The times, places and manner of holding elections for Senators shall be as

prescribed in each state by the Legislature thereof'

35

the avowed purpose being thereby to modify section 4, art. 1. by depriving

Congress of power to regulate the manner of holding elections for Senators. (A
copy of the oridinal resolution as presented to the Senate is in the margin.)3
Upon recommendation of a minority of the Judiciary Committee this clause
was eliminated and reference to section 4, art. 1, omitted from the resolution.
After prolonged debate in the 61st and 62d Congresses the amendment in its
present form was submitted for ratification. See Sen. Rep. 961, 61st Cong. 3d
Sess; Sen. Rep. 35, 62d Cong., 1st Sess.; Cong. Rec. vol. 46, pp. 847, 851, et
seq.; volume 47, passim, and pp. 1924, 1925, 6366.

36

Apparently because deemed unimportant, no counsel on either side referred to

'An act providing a temporary method of conducting the nomination and
election of United States Senators,' approved June 4, 1914 (chapter 103, 38
Stat. 384). To show its irrelevancy and prevent misapprehension, the act is
copied in the margin.4 Section 2, which contains the only reference to
nomination of candidates for Senator, expired by express limitation June 4,
1917, more than a year prior to the conduct here challenged. The act has no
criminal provisions, makes no reference to the earlier statute upon which this
prosecution is founded and sheds no light on the power of Congress to regulate
primaries and conventions. Its terms indicate intention that the machinery for
designating party candidates shall remain under state control. But in no view
can an attempt to exercise power be treated as conclusive evidence that
Congress possesses such power. Otherwise serious discussion of constitutional
limitations must cease. Moreover, the criminal statute now relied upon
antedates the Seventeenth Amendment and must be tested by powers possessed
at time of its enactment. An after-acquired power can not ex proprio vigore
validate a statute void when enacted. See Sutherland, Stat. Constr. (2d Ed.) vol.
1, 107.

37

A concession that the Seventeenth Amendment might be applicable in this

controversy if assisted by appropriate legislation would be unimportant, since
there is none. Section 2, Act of June 4, 1914, had expired by express limitation
many months before Newberry became a candidate, and counsel very properly
disregarded it.

38

Because deemed appropriate in order effectively to regulate the manner of

holding general elections, this court has upheld federal statutes providing for
supervisors and prohibiting interference with them, declaring criminal failure
by election officers to perform duties imposed by the state and denouncing
conspiracies to prevent voters from freely casting their ballots or having them

counted. Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte Clarke, 100
U. S. 399, 25 L. Ed. 715; Ex parte Yarbrough, 110 U. S. 651, 4 Sup. Ct. 152,
28 L. Ed. 274; In re Coy, 127 U. S. 731, 8 Sup. Ct. 1263, 32 L. Ed. 274; United
States v. Mosley, 238 U. S. 383, 35 Sup. Ct. 904, 50 L. Ed. 1355. These
enactments had direct and immediate reference to elections by the people, and
decisions sustaining them do not control the present controversy. Congress
clearly exercised its power to regulate the manner of holding an election when
it directed that voting must be by written or printed ballot or voting machines.
30 Stat. 836, c. 154 (Comp. St. 24).
39

Section 4, art. 1, was bitterly attacked in the state conventions of 1787-1789,

because of its alleged possible use to create preferred classes and finally to
destroy the states. In defense, the danger incident to absolute control of
elections by the states and the express limitations upon the power were dwelt
upon. Mr. Hamilton asserted:

40

'The truth is that there is no method of securing to the rich the preference
apprehended, but by prescribing qualifications of property either for those who
may elect, or be elected. But this forms no part of the power to be conferred
upon the national government. Its authority would be expressly restricted to the
regulation of the times, the places, and the manner of elections. The
qualifications of the persons who may choose, or be chosen, as has been
remarked upon other occasions, are defined and fixed in the Constitution, and
are unalterable by the Legislature.' The Federalist, LIX, LI.

41

The history of the times indicates beyond reasonable doubt that, if the
Constitution makers had claimed for this section the latitude we are now asked
to sanction, it would not have been ratified. See Story on the Const. 814 et
seq.

42

Out immediate concern is with the clause which grants power by law to
regulate the 'manner of holding elections for Senators and Representatives'
(Const. art. 1, 4)not broadly to regulate them. As an incident to the grant
there is, of course, power to make all laws which shall be necessary and proper
for carrying it into effect. Article 1, 8. Although the Seventeenth Amendment
now requires Senators to be chosen by the people, reference to the original plan
of selection by the Legislatures may aid in interpretation.

43

Who should participate in the specified elections was clearly indicated

members of state Legislatures and those having 'the qualifications requisite for
electors of the most numerous branch of the state Legislature.' Who should be

eligible for election was also stated:

44

'No person shall be a Representative who shall not have attained the age of
twenty-five years, and been seven years a citizen of the Unites States, and who
shall not, when elected, be an inhabitant of that state in which he shall be
chosen.' Article 1, 2, cl. 2.

45

'No person shall be a Senator who shall not have attained, to the age of thirty
years, and been nine years a citizen of the United States, and who shall not,
when elected, be an inhabitant of that state for which he shall be chosen.'
Article 1, 3, cl. 3.

46

Two Senators were allotted to each state and the method was prescribed for
determining the number of Representatives. Subject to these important
limitations, Congress was empowered by law to regulate the times, places and
manner of holding the elections, except as to the places of choosing Senators.
'These words are used without any veiled or obscure significance,' but in their
natural and usual sense.

47

If it be practically true that under present conditions a designated party

candidate is necessary for an electiona preliminary theretonevertheless his
selection is in no real sense part of the manner of holding the election. This
does not depend upon the scheme by which candidates are put forward.
Whether the candidate be offered through primary, or convention, or petition,
or request of a few, or as the result of his own unsupported ambition does not
directly affect the manner of holding the election. Birth must precede but it is
no part of either funeral or apotheosis.

48

Many things are prerequisites to elections or may affect their outcomevoters,

education, means of transportation, health, public discussion, immigration,
private animosities, even the face and figure of the candidate; but authority to
regulate the manner of holding them gives no right to control and of these. It is
settled, e. g., that the power to regulate interstate and foreign commerce does
not reach whatever is essential thereto. Without agriculture, manufacture,
mining, etc., commerce could not exist but this fact does not suffice to subject
them to the control of Congress. Kidd v. Pearson, 128 U. S. 1, 9 Sup. Ct. 6, 32
L. Ed. 346.

49

Elections of Senators by state Legislatures presupposed selection of their

members by the people; but it would hardly be argued that therefore Congress
could regulate such selection. In the Constitutional Convention of 1787 when

replying to the suggestion that state Legislatures should have uncontrolled

power over elections of members of Congress, Mr. Madison said:
50

'It seems as improper in principle, though it might be less inconvenient in

practice, to give to the state Legislatures this great authority over the election of
the representatives of the people in the general Legislature as it would be to
give to the latter a like power over the election of their representatives in the
state Legislatures.' Supplement to Elliot's Debates, vol. V, p. 402.

51

We cannot conclude that authority to control party primaries or conventions for

designating candidates was bestowed on Congress by the grant of power to
regulate the manner of holding elections. The fair intendment of the words does
not extend so far; the framers of the Constitution did not ascribe to them any
such meaning. Nor is this control necessary in order to effectuate the power
expressly granted. On the other hand, its exercise would interfere with purely
domestic affairs of the state and infringe upon liberties reserved to the people.

52

It should not be forgotten that, exercising inherent police power, the state may
suppress whatever evils may be incident to primary or convention. As 'each
house shall be the judge of the elections, qualifications and returns of its own
members,' and as Congress may by law regulate the times, places and manner
of holding elections, the national government is not without power to protect
itself against corruption, fraud or other malign influences.

53

The judgment of the court below must be reversed, and the cause remanded for
further proceedings in conformity with this opinion.

54

Reversed.

55

Mr. Justice McKENNA concurs in this opinion as applied to the statute under
consideration which was enacted prior to the Seventeenth Amendment; but he
reserves the question of the power of Congress under that amendment.

56

Mr. Chief Justice WHITE, dissenting from the opinion, but concurring with a
modification in the judgment of reversal.

57

The conviction and sentence under review were based on an indictment

charging a conspiracy to commit violation of the act of Congress known as the
Corrupt Practices Act as made applicable to state laws dealing with state
nominating primaries for and the ensuing state elections of United States

Senators and Representatives in Congress. The case is here by direct appeal

because of the contention that primaries of that character are not subject to the
regulating power of Congress, and as an incident there is involved the
contention, that even if the act of Congress was constitutional it had been
prejudicially misconstrued. Sustaining the first of these contentions and
therefore deciding the act to be unconstitutional, the court reverses and finally
disposes of the case. Although I am unable to concur in the conclusion as to the
want of power of Congress and in the judgment of reversal as rendered, I am
nevertheless of opinion that there should be a judgment of reversal without
prejudice to a new trial because of the grave misapprehension and grievous
misapplication of the statute upon which the conviction and sentence below
were based. I state the reasons which control me as to both these subjects.
58

By an amendment to the Corrupt Practices Act of 1910 Congress, in 1911, dealt

with state primaries for the nomination of Senators and Representatives in
Congress and with the election after nomination of such candidates (Act of June
25, 1910, c. 392, 36 Stat. 822; Act of August 19, 1911, c. 33, 8, 37 Stat. 25,
28). At that time there existed in the state of Michigan a law regulating state
nominating primaries which included candidates for state offices as well as for
the Senate and House of Representatives of the United States. These primaries
were held in the month of August in each year preceding the November general
election. By that law the result of the primaries determined the right to have a
person's name placed as a candidate on the ballot at the general election, and in
the case of United States Senators provision was made for the return of the
result of the primary to the state Legislature before the time when the duty of
that body to elect a Senator would arise.

59

The Seventeenth Amendment to the Constitution providing for the election of

United States Senators by popular vote was promulgated in May, 1913. In June,
1914, Congress by legislation carrying out the amendment provided that
thereafter Senators should be elected by popular vote, and, where state laws to
that effect existed, made them applicable. But, evidently to give time for the
states to enact the necessary legislation substituting for election by the
Legislature the method of election established by the amendment, it was
provided that where no law for primaries by popular vote as to Senators existed
that subject should be controlled by the state law regulating primaries for the
nomination of Representative at Large, if provided for, and if not, by the
provisions controlling as to primaries for general state officers, the operation of
these latter provisions being expressly limited to a term of three years (Act of
June 4, 1914, c. 103, 38 Stat. 384). Within the time thus fixed and before the
election which was held of this case, the state of Michigan, in order to conform
its laws to the amendment, modified them so as to provide for the election of

Senators by popular vote, and made the general nominating state primary law
applicable to that condition (Act No. 156, Mich. Acts of 1915), and by virtue of
the amendment, the act of Congress, and the state law just stated, the primary
with which we are concerned in this case was held in August, 1918.
60

The plaintiff in error, Newberry, was a candidate for the nomination of the
Republican party as United States Senator and having been nominated at such
primary became a candidate at the ensuing November election, and was
returned as elected. Subsequently the indictment under which the conviction
below was had was presented charging him and others in six counts with a
conspiracy to commit violations of provisions of the Corrupt Practices Act
relating to state nominating primaries as well as to the resulting general
election. It is not at this moment necessary to describe the nature of these
accusations further, since it is not questioned that the indictment charged a
conspiracy to commit crimes within the intendment tendment of the Corrupt
Practices Act and hence involved the question of the constitutional power of
Congress which the court now adversely decides and the basis for which I now
come to consider.

61

As the nominating primary was held after the adoption of the Seventeenth
Amendment, the power must have been sanctioned by that amendment, but for
the purpose of clarity I consider the question of the power, first from the
provisions of the Constitution as they existed before the amendment, and
second in contemplation of the light thrown upon the subject by the force of the
amendment.

62

The provisions of scetions 2 and 3 of article I of the Constitution fixing the

composition of the House of Representatives and the Senate and providing for
the election of Representatives by vote of the people of the several states and of
Senators by the state Legislatures, were undoubtedly reservoirs of vital federal
power constituting the generative sources of the provisions of section 4, clause
1, of the same article creating the means for vivifying the bodies previously
ordained (Senate and House), that is, providing:

63

'The times, places and manner of holding elections for Senators and
Representatives, shall be prescribed in each state by the Legislature thereof; but
the Congress may at any time by law make or alter such regulations, except as
to the places of chusing Senators.'

64

As without this grant no state power on the subject was possessed, it follows
that the state power to create primaries as to United States Senators depended

upon the grant for its existence. It also follows that as the conferring of the
power on the states and the reservation of the authority in Congress to regulate
being absolutely coterminous, except as to the place of choosing Senators
which is not here relevant, it results that nothing is possible of being done under
the former which is not subjected to the limitation imposed by the latter. And
this is illustrated by the legislation of Congress and the decisions of this court
upholding the same. See 'Act to regulate the times and manner of holding
elections for Senators in Congress,' approved July 25, 1866, 14 Stat. 243; Act
of May 31, 1870, 16 Stat. 144; Act of July 14, 1870, 16 Stat. 254; Act of June
10, 1872, 17 Stat. 347; Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717; Ex parte
Clarke, 100 U. S. 399, 25 L. Ed. 715; Ex parte Yarbrough, 110 U. S. 651, 4
Sup. Ct. 152, 28 L. Ed. 274; United States v. Mosely, 238 U. S. 383, 35 Sup.
Ct. 904, 50 L. Ed. 1355.
65

But it is said that, as the power which is challenged here is the right of a state to
provide for and regulate a state primary for nominating United States Senators
free from the control of Congress, and not the election of such Senators,
therefore as the nominating primary is one thing and the election another and
different thing, the power of the state as to the primary is not governed by the
right of Congress to regulate the times and manner of electing Senators. But the
proposition is a suicidal one, since it at one and the same time retains in the
state the only power it could possibly have as delegated by the clause in
question and refuses to give effect to the regulating control which the clause
confers on Congress as to that very power. And mark, this is emphasized by the
consideration that there is no denial here that the States possess the power over
the federal subject resulting from the provision of the Constitution, but a
holding that Congress may not exert as to such power to regulate authority
which the terms of the identical clause of the Constitution confer upon it.

66

But, putting these contradictions aside let me test the contention from other and
distinct points of view: (1) In last analysis the contention must rest upon the
proposition that there is such absolute want of relation between the power of
government to regulate the right of the citizen to seek a nomination for a public
office and its authority to regulate the election after nomination, that a
paramount government authority having the right to regulate the latter is
without any power as to the former. The influence of who is nominated for
elective office upon the result of the election to fill that office is so known of
all men that the proposition may be left to destroy itself by its own statement.

67

(2) Moreover the proposition, impliedly at least, excludes from view the fact
that the powers conferred upon Congress by the Constitution carry with them
the right 'to make all laws which shall be necessary and proper for carrying into

execution the foregoing powers' (article I, 8, cl. 18), and in doing so virtually
disregards the previous legislative history and the decisions of this court
sanctioning the same, to which we have referred, since that practice and those
decisions unmistakably recognize that the power under the clause in question
extends to all the prerequisite and appropriate incidents necessary to the
discharge of the authority given.
68

(3) From a somewhat different point of view the same result is even more
imperatively required. Thus, as has been seen, the election was had under the
Seventeenth Amendment to the Constitution, providing for the election of
Senators by popular vote instead of by the state legislatures. In the resolution
providing for the passage of that amendment through Congress, as first
reported by Senator Borah on behalf of the judiciary committee, after making
the changes necessary to substitute a provision causing Senators to be elected
by popular vote instead of by the legislatures of the several States, the provision
of section 4 of article I reserving to Congress the power 'to make or alter,'
except as to places, the regulations adopted by the several states as to the
'times, places and manner' of electing Senators, was omitted, thus leaving all
power on the subject in the States, free from any regulating control of
Congress. (S. Rep. 961, 61st Cong. 3d Sess.)

69

There was division, however, concerning the matter, manifested by a

proposition to amend the resolution, as reported, so as to retain the omitted
provision, thus preserving the power of Congress as originally conferred. Cong.
Rec. vol. 46, part 1, p. 847. The legislative situation thus created was aptly
stated by Senator Borah, referring to the report of the committee and to the
proposition (submitted by Senator Sutherland of Utah) to amend that report and
the resolution accompanying it. He said:

70

'In reference to the amendment which has been suggested by the Senator from
Utah (Mr. Sutherland), it was considered at some length before the committee.
The proposition is a simple one. As the joint resolution now stands, the times,
places and manner of electing United States Senators is left entirely to the state.
The state may determine the rules and regulations, and the times, places and
manner of holding elections for United States Senators.

71

'If the amendment as offered by the Senator from Utah should prevail, then the
matter would be left as it now is, subject to the supervision and control of
Congress.'5

72

After much consideration the amendment offered by Senator Sutherland was

carried.6 But the reported resolution, as thus amended, did not pass during that
Congress. In the first session of the following Congress, however, the SixtySecond Congress, a resolution identical in terms with the one which had been
reported in the Senate at the previous session was introduced in the House and
passed the same.7 In the Senate the House resolution was favorably reported
from the committee by Senator Borah,8 accompanied, however, by a minority
report by Senator Sutherland,9 offering as a substitute a resolution preserving
the complete power of Congress, as had been provided for in the Senate in the
previous Congress, and an amendment to the same effect offered by Senator
Bristow was subsequently adopted,10 and as thus amended the resolution was
ultimately submitted for ratification, and, as we have seen, was ratified and
promulgated. 38 Stat. 2049.
73

When the plain purpose of the amendment is thus seen, and it is borne in mind
that at the time it was pending, the amendment to the Corrupt Practices Act
dealing with state primaries for nominating United States Senators which is
now before us was in the process of consideration in Congress, and when it is
further remembered that after the passage of the amendment, Congress enacted
legislation so that the amendment might be applied to state senatorial primaries,
there would seem to be an end to all doubt as to the power of Congress.

74

It is not disputable that originally instructions to representatives in state

Legislatures by party conventions or by other unofficial bodies, as to the
persons to be elected as United States Senators were resorted to as a means of
indirectly controlling that subject and thus, in a sense, restricting the
constitutional provision as to the mode of electing Senators. The potentiality of
instructions of that character to accomplish that result is amply shown by the
development of our constitutional institutions as regards the Electoral College,
where it has come to pass that the unofficial nomination of party has rendered
the discharge of its duties by the Electoral College a mere matter of form. That
in some measure at least a tendency to that result came about under the
constitutional direction that Senators should be elected by the people would
appear not doubtful. The situation on this subject is illustrated by a statement in
a treatise by Haynes on Election of Senators, 1906, p. 132, as follows:

75

'Notwithstanding our rigid Constitution's decree that the senators from the
several states shall be elected by 'the legislatures thereof,' this act of the
Legislatures may be deprived of nearly all of its vitality. The election of
President offers an illustration of the filching of actual power away from the
electors in whom it is vested by law. When James Russell Lowell, a Republican
elector for Massachusetts in 1876, was urged to exercise his independence and
vote for Tilden, he declined, saying that, 'whatever the first intent of the

Constitution was, usage had made the presidential electors strictly the
instruments of the party which chose them.' The Constitution remains
unchanged, yet presidential electors recognize that they have been stripped of
all discretion. It appears that under certain conditions the election of Senators
by state Legislatures has been and can be made an equally perfunctory affair.'
76

The growth of the tendency to make the indirect result thus stated more
effective evidently was the genesis of the statutory primary to nominate
Senators. See statement concerning an amendment to the Constitution of
Nebraska on that subject as early as 1875, in the same treatise (page 141).

77

The large number of states which at this day have by law established senatorial
primaries shows the develop ment of the movement which originated so long
ago under the circumstances just stated. They serve to indicate the tenacity of
the conviction that the relation of the primary to the election is to intimate that
the influence of the former is largely determinative of the latter. I have
appended in the margin a statement from a publication on the subject,11
showing how well founded this conviction is and how it has come to pass that
in some cases at least the result of the primary has been in substance to render
the subsequent election merely perfunctory. Under these conditions I find it
impossible to say that the admitted power of Congress to control and regulate
the election of Senators does not embrace, as appropriate to that power, the
authority to regulate the primary held under state authority.

78

(4) It is true that the plenary reservation in Congress of the power to control the
states in the exercise of the authority to deal with the times, places, and manner
of electing Senators and Representatives, as originally expressed in the
Constitution, caused much perturbation in the conventions of the several states
which were called upon to consider ratification, resulting from the fear that
such power to regulate might be extended to and embrace the regulation of the
election of the members of the state Legislatures who were to exercise the
power to elect Senators. It is further true that articles in the Federalist and other
papers published at the time served to dispel the fear by directing attention to
the fact that the regulating power of Congress only extended to the times,
places and manner of electing Senators and did not include an authority, even
by implication, to deal with the election of the state Legislatures, which was a
power reserved to the states. But this only served to emphasize the distinction
between the state and federal power and affords no ground at this late day for
saying that the reserved state power has absorbed and renders impossible of
exercise the authority of Congress to regulate the federal power concerning the
election of United States Senators, submitted, to the extent provided, to the
authority of the states upon the express condition that such authority should be

subordinate to and controlled by congressional regulation.

79

Can any other conclusion be upheld except upon the theory that the phantoms
of attenuated and unfounded doubts concerning the meaning of the
Constitution, which have long perished, may now be revived for the purpose of
depriving Congress of the right to exert a power essential to its existence, and
this in the face of the fact that the only basis for the doubts which arose in the
beginning (the election of Senators by the state Legislatures) has been
completely removed by the Seventeenth Amendment?

80

I do not stop to refer to the state cases concerning the distinction between state
legislative power to deal with elections and its authority to control primaries, as
I cannot discover the slightest ground upon which they could be apposite, since
here an inherent federal right and the provision of the Constitution in dealing
with it are the subjects for consideration.

81

Moreover, in passing, I observe that as this case concerns a state primary law
imposing obligatory results, and the act of Congress dealing with the same, it is
obvious that the effect of individual action is wholly beside the issue.

82

The consequence to result from a denial to Congress of the right to regulate is

so aptly illustrated by the case in hand that in leaving the question I refer to it.
Thus, it is stated, and not denied, that in the state primary in question, one of
the candidates, as permitted by the state law, propounded himself at the primary
election as the candidate for the nomination for Senator of both the Republican
and the Democratic parties. If the candidacy had been successful as to both, the
subsequent election would have been reduced to the merest form.

83

In view, then, of the plain text of the Constitution, of the power exerted under it
from the beginning, of the action of Congress in its legislation, and of the
amendment to the Constitution, as well as of the legislative action of
substantially the larger portion of the states, I can see no reason for now
denying the power of Congress to regulate a subject which from its very nature
inheres in and is concerned with the election of Senators of the United States,
as provided by the Constitution.

84

The indictment remains to be considered. It contained six counts. For the

moment, it suffices to say that the first four all dealt with a common subject,
that is, a conspiracy between Newberry and others named to contribute and
expend, for the purposes of the state primary and general election, more money
than allowed by the Corrupt Practices Act. The fifth count charged a

conspiracy on the part of the defendants to commit a great number, to wit,

1,000, offenses against the United States, each to consist of giving money and
things of value to a person to vote for Newberry at said election, and a great
number, to wit, 1,000, other offenses against the United States, each to consist
of giving money and things of value to a person to withhold his vote from
Henry Ford at said general election. The sixth count charged a conspiracy to
defraud by use of the mails.
85

At the trial before the submission of the case to the jury, the court put the fifth
count entirely out of the case by instructing the jury to disregard it, as there was
no evidence whatever to sustain it. The bribery charge, therefore, disappeared.
The second, third and fourth counts, dealing, as I have said, with one general
subject, were found by the court to be all in substance countained in the first
count. They were therefore, by direction of the court, either eliminated or
consolidated with the first count. Thus, as contained in that count the matters
charged in the first four counts were submitted to the jury, as was also the sixth
count; but the latter we need not further consider, as upon it there was a verdict
of not guilty.

86

The case therefore reduces itself solely to the matters covered in the first count.
That count charged a conspiracy on the part of the defendants, 135 in number,
including Newberry, to commit an offense against the United States, that is, the
offense on the part of Newberry of violating the Corrupt Practices Act by
giving, contributing, expending and using and by causing to be given,
contributed, expended and used, in procuring his nomination and election as
such Senator at said primary and general elections, a sum in excess of the
amount which he might lawfully give, contribute, expend or use, and cause to
be given, contributed, expended or used for such purpose under the laws of
Michigan, and in excess of $10,000, to wit, the sum of $100,000; and on the
part of the other defendants of aiding, counseling, inducing, and procuring
Newberry as such candidate to give, contribute, expend and use, or cause to be
given, contributed, expended or used said large and excessive sum, in order to
procure his nomination and election.

87

Conspiracy to contribute and expend in excess of the amount permitted by the

statute was, then, the sole issue, wholly disassociated from and disconnected
with any corrupt or wrongful use of the amount charged to have been illegally
contributed and expended. As putting out of view the constitutional question
already considered, the errors assigned are based solely upon asserted
misconstructions of the statute by the court in its charge to the jury, we bring
the statute at once into view. It provides, so far as relevant to the case before
us:

88

'No candidate for * * * Senator of the United States shall give, contribute,
expend, use, or promise, or cause to be given, contributed, expended, used, or
promised, in procuring his nomination and election, any sum, in the aggregate,
in excess of the amount which he may lawfully give, contribute, expend, or
promise under the laws of the state in which he resides: Provided, that * * * no
candidate for United States Senator shall give, contribute, expend, use, or
promise any sum, in the aggregate, exceeding ten thousand dollars in any
campaign for his nomination and election. * * *'

89

Coming to deal with the statute, the court, after pointing out in the most explicit
terms that the limitation on the amount which might be lawfully contributed
and expended or caused to be contributed and expended in the case at hand was
$3,750 (that being the limitation imposed by the laws of Michigan adopted by
the statute of the United States just quoted), then proceeded, over objections
duly reserved, to instruct as to the significance of the statute, involved in the
prohibitions (a) against giving, contributing, expending, or using, and (b)
against causing to be given, contributed, expended, or used, money in excess of
that permitted by the statute, saying on these subjects as follows:

90

(a) 'It is important, therefore, that you should understand the meaning of the
language employed in this Corrupt Practices Act, and that you should
understand and comprehend the effect and scope of the act, and the meaning of
the language there employed, and the effect and scope and extent of the
prohibition against the expenditure and use of money therein contained.

91

'The words 'give, contribute, expend or use,' as employed in this statute have
their usual and ordinary significance, and mean furnish, pay out, disburse,
employ, or make use of. The term 'to cause to be expended, or used,' as it is
employed in this statute, means to occasion, to effect, to bring about, to produce
the expenditure and use of the money.

92

'The prohibition contained in this statute against the expenditure and use of
money by the candidate is not limited or confined to the expenditure and use of
his own money. The prohibition is directed against the use and expenditure of
excessive sums of money by the candidate from whatever source or from
whomsoever those moneys may be derived.'

93

(b) 'The phrase which constitutes the prohibition against the candidate 'causing
to be given, contributed, expended or used excessive sums of money,' is not
limited and not confined to expenditures and use of money made directly and
personally by himself. This prohibition extends to the expenditure and use of

excessive sums of money in which the candidate actively participates, or

assists, or advises, or directs, or induces, or procures. The prohibition extends
not only to the expenditure and use of excessive sums of money by the
candidate directly and personally, but to such use and expenditure through his
agency, or procurement or assistance.
94

'To constitute a violation of this statute knowledge of the expenditure and use of
excessive sums of money on the part of the candidate is not sufficient; neither
is it sufficient to constitute a violation of this statute that the candidate merely
acquiesces in such expenditures and use. But it is sufficient to constitute a
violation of this statute if the candidate actively participates in doing the things
which occasion such expenditures and use of money and so actively
participates with knowledge that the money is being expended and used.'

95

Having thus fixed the meaning of the prohibitions of the statute, the court came
to apply them as thus defined to the particular case before it, saying:

96

(c) 'To apply these rules to this case: If you are satisfied from the evidence that
the defendant, Truman H. Newberry at or about the time that he became a
candidate for United States Senator was informed and knew that his campaign
for the nomination and election would require the expenditure and use of more
money than is permitted by law and with such knowledge became a candidate,
and thereafter by advice, by conduct, by his acts, by his direction, by his
counsel, or by his procurement he actively participated and took part in the
expenditure and use of an excessive sum of money, of an unlawful sum of
money, you will be warranted in finding that he did violate this statute known
as the Corrupt Practices Act.'

97

Whether the instructions marked (a) and (b), if unexplained, were, in view of
the ambiguity lurking in many of the expressions used therein, prejudicially
erroneous, I do not think necessary to consider, since I see no escape from the
conclusion that the instruction marked (c), which made application of the view
of the statute stated in the previous passages (a) and (b), were in clear conflict
with the text of the statute and were necessarily of a seriously prejudicial
nature, since in substance they announced the doctrine that, under the statute,
although a candidate for the office of Senator might not have contributed a cent
to the campaign or caused others to do so, he nevertheless was guilty if he
became a candidate or continued as such ater acquiring knowlege that more
than $3,750 had been contributed and was being expended in the campaign.
The error in the instruction plainly resulted from a failure to distinguish
between the subject with which the statute dealtcontributions and
expenditures made or caused to be made by the candidateand campaign

contributions and expenditures penditures not so made or caused to be made,

and therefore not within the statute.
98

There can be no doubt when the limitations as to expenditure which the statute
imposed are considered in the light of its context and its genesis, that its
prohibitions on that subject were intended, not to restrict the right of the citizen
to contribute to a campaign, but to prohibit the candidate from contributing and
expending or causing to be contributed and expended, to secure his nomination
and election a larger amount than the sum limited as provided in the statute. To
treat the candidacy, as did the charge of the court, as being necessarily the
cause, without more, of the contribution of the citizen to the campaign, was
therefore to confound things which were wholly different, to the frustration of
the very object and purpose of the statute. To illustrate: Under the instruction
given, in every case where to the knowledge of the candidate a sum in excess of
the amount limited by the statute was contributed by citizens to the campaign,
the candidate, if he failed to withdraw, would be subject to criminal prosecution
and punishment. So also, contributions by citizens to the expenses of the
campaign, if only knowledge could be brought home to them that the aggregate
of such contributions would exceed the limit of the statute, would bring them,
as illustrated by this case, within the conspiracy statute and accordingly subject
to prosecution. Under this view the greater the public service, and the higher
the character, of the candidate, giving rise to a correspondingly complete and
self-sacrificing support by the electorate to his candidacy, the more inevitably
would criminality and infamous punishment result both to the candidate and to
the citizen who contributed.

99

As it follows from the considerations which I have stated that the judgment
below was, in my opinion, clearly wrong and therefore should be reversed, it is
not necessary that I should go further and point out how cogently under the
case presented the illustrations just previously made apply to it. For the reasons
stated, although I dissent from the ruling of the court as to the
unconstitutionality of the act of Congress, I nevertheless think its judgment of
reversal should be adopted, qualified, however, so as to reserve the right to a
new trial.

100 Mr. Justice PITNEY, concurring in part.

101 I concur in the judgment reversing the conviction of plaintiffs in error, but upon
grounds fundamentally different from those adopted by the majority: my view
being that there is no constitutional infirmity in the act of Congress that
underlies the indictment, but that there was an error in the submission of the
case to the jury that calls for a new trial.

102 The constitutional question is so important that it deserves treatment at length.

103 The federal Corrupt Practices Act (Act of June 25, 1910, c. 392, 36 Stat. 822,
amended by Act of August 19, 1911, c. 33, 37 Stat. 25, 28) limits the amount of
money that may be given, contributed, expended, used, or promised, or caused
to be given, contributed, expended, used, or promised by a candidate for
Representative in Congress or for Senator of the United States in procuring his
nomination and election, to a sum not in excess of the amount he may lawfully
give, contribute, expend, or promise under the laws of the state of his residence,
with a proviso that in the case of a candidate for Representative the amount
shall not exceed $5,000, and in the case of a candidate for Senator shall not
exceed $10,000, in any campaign for nomination and election; and a further
proviso that any assessment, fee, or charge made or levied upon candidates by
the laws of the state, or moneys expended for the candidate's necessary personal
expenses for travel and subsistence, stationery and postage, writing or printing
(other than in newspapers), and distributing letters, circulars, and posters, and
for telegraph and telephone service, shall not be regarded as an expenditure or
considered as a part of the sum fixed as the limit of expense. Section 10 of the
act (36 Stat. 824), renumbered as section 11 by the amendment (37 Stat. 26;
Comp. St. 198), prescribes fine or imprisonment for a willful violation of any
of its provisions. The act and amendment were passed before the adoption of
the Seventeenth Amendment, providing for the election of Senators by direct
vote of the people (declared adopted May 31, 1913-38 Stat. 2049); but it is
clearindeed undisputed that, for present purposes, they are to receive the
same construction and effect as if enacted after adoption of the amendment.
104 The present case arose out of a campaign for nomination and election of a
Senator in the state of Michigan, where a statute (Act No. 109, 1, Mich, Pub.
Acts 1913) limits the amount of money that may be paid, and of expenses that
may be authorized or incurred by or on behalf of any candidate to be paid by
him in order to secure his nomination to any public office in the state, to 25 per
centum of one year's salary of the office, and imposes a similar limit upon
expenditures by or on behalf of any candidate who has received the nomination.
By section 19 of the same statute 'public office' is made to apply to any national
office filled by the voters of the state, as well as to the office of presidential
elector and United States Senator. The acts of Congress, in connection with the
statute of the state, limit the amount that a candidate for Senator of the United
States may give, contribute, expend, use, or promise, or cause to be given,
contributed, expended, used, or promised, in procuring his nomination and
election, to $3,750 in the aggregate, aside from those expenditures that are
specifically permitted without limit.

105 Plaintiffs in error were indicted and convicted in the United States District
Court for a conspiracy (section 37, Criminal Code) to commit an offense
against the United States, to wit, the offense, on the part of Truman H.
Newberry, of willfully violating the acts of Congress above referred to by
giving, contributing, expending, and using, and by causing to be given,
contributed, expended, and used, in procuring his nomination and election as
Senator of the United States at the primary and general elections in the year
1918, a sum in excess of the amount thus limited, to wit, the sum of $100,000,
and on the part of the other defendants of aiding, counseling, inducing, and
procuring (section 332, Criminal Code; Comp. St. 10506) said Truman H.
Newberry so to give, contribute, expend, and use, and cause to be given,
contributed, expended, and used said large sums of money in excess of the
amounts permitted, etc.; no part of which money was to be expended for any of
the purposes specifically permitted without limit; numerous overt acts being
alleged to have been done by one or more parties defendant to effect the object
of the conspiracy.
106 The averments of the indictment and the evidence at the trial related especially
to expenditures contemplated to be made, and in fact made, to bring about Mr.
Newberry's selection at a nominating or primary election held in August, 1918,
with only minor expenditures made after that date and in contemplation of the
general election which was held in the following November. The case is
brought to this court by direct writ of error, upon the fundamental contention
that the acts of Congress, in so far as they assume to regulate primary elections
and limit the expenditures of money that may be made or caused to be made by
a candidate therein, are in excess of the power conferred upon Congress to
regulate the 'manner of holding elections for Senators and Representatives' by
section 4 of article I of the Constitution of the United States. This question was
raised, but not decided, in United States v. Gradwell, 243 U. S. 476, 487, 488,
37 Sup. Ct. 407, 61 L. Ed. 857; Blair v. United States, 250 U. S. 273, 278, 279,
39 Sup. Ct. 495, 63 L. Ed. 1187.
107 For reasons to be stated below, I consider is erroneous to treat the question as
dependent upon the words of the cited section alone. I will, however, first deal
with that section, viewing it in connection with other provisions immediately
associated with it and here quoted:
108 'Article I. Section 1. 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.
109 'Section 2. The House of Representatives shall be composed of Members

109 'Section 2. 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 State shall have the Qualifications requisite for Electors of the most
numerous Branch of the State Legislature. * * *' (Section 3 is superseded by the
Seventeenth Amendment, which provides:)
110 '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. * * *'
111 'Section 4. The Times, Places and Manner of holding Elections for Senators and
Representatives, shall be prescribed in each State by the Legislature thereof; but
the Congress may at any time by Law make or alter such Regulations, except as
to the Places of chusing Senators. * * *
112 'Section 5. Each House shall be the Judge
113 'Section 5. Each House shall be the Judge of the Elections, Returns, and
Qualifications of its own Members. * * *'
114 It is contended that Congress has no power to regulate the amount of money
that may be expended by a candidate to secure his being named in the primary
election; that the power 'to regulate the manner of holding elections,' etc.,
relates solely to the general elections where Senators or Representatives are
finally chosen. Why should 'the manner of holding elections' be so narrowly
construed? An election is the choosing of a person by vote to fill a public
office. In the nature of things it is a complex process, involving some
examination of the qualifications of those from whom the choice is to be made
and of those by whom it is to be made; some opportunity for the electors to
consider and canvass the claims of the eligibles; and some method of
narrowing the choice by eliminating candidates until one finally secures a
majority, or at least a plurality, of the votes. For the process of elimination,
instead of tentative elections participated in by all the electors, nominations by
parties or groups of citizens have obtained in the United States from an early
period. Latterly the processes of nomina tion have been regulated by law in
many of the states, through the establishment of official primary elections. But
in the essential sense, a sense that fairly comports with the object and purpose
of a Constitution such as ours, which deals in broad outline with matters of
substance and is remarkable for succinct and pithy modes of expression, all of
the various processes above indicated fall fairly within the definition of 'the
manner of holding elections.' This is not giving to the word 'elections' a

significance different from that which it bore when the Constitution was
adopted, but is simply recognizing a content that of necessity always inhered in
it. The nature of that instrument required, as Chief Justice Marshall pointed out
in McCulloch v. Maryland, 4 Wheat. 316, 407 (4 L. Ed. 579):
'That only its great outlines should be marked, its important objects designated,
115 and the minor ingredients which compose those objects be deduced from the
nature of the objects themselves.'
116 It is said that section 4 of article I does not confer a general power to regulate
elections, but only to regulate 'the manner of holding' them. But this can mean
nothing less than the entire mode of procedurethe essence, not merely the
form, of conducting the elections. The only specific grant of power over the
subject contained in the Constitution is contained in that section; and the power
is conferred primarily upon the Legislatures of the several states, but subject to
revision and modification by Congress. If the preliminary processes of such an
election are to be treated as something so separate from the final choice that
they are not within the power of Congress under this provision, they are for the
same reason not with within the power of the states, and, if there is no other
grant of power, they must perforce remain wholly unregulated. For if this
section of the Constitution is to be strictly construed with respect to the power
granted to Congress thereunder, it must be construed with equal strictness with
respect to the power conferred upon the states; if the authority to regulate the
'manner of holding elections' does not carry with it exvi termini authority to
regulate the preliminary election held for the purpose of proposing candidates,
then the states can no more exercise authority over this than Congress can;
much less an authority exclusive of that of Congress. For the election of
Senators and Representatives in Congress is a federal function; whatever the
states do in the matter they do under authority derived from the Constitution of
the United States. The reservation contained in the Tenth Amendment cannot
properly operate upon this subject in favor of the state governments; they could
not reserve power over a matter that had no previous existence; hence if the
power was not delegated to the United States it must be deemed to have been
reserved to the people, and would require a constitutional amendment to bring
it into playa deplorable result of strict construction.
117 But if I am wrong in this, and the power to regulate primary elections could be
deemed to have been reserved by the states to the exclusion of Congress, the
result would be to leave the general government destitute of the means to insure
its own preservation without governmental aid from the states, which they
might either grant or withhold according to their own will. This would render
the government of the United States something less than supreme in the

exercise of its own appropriate powers; a doctrine supposed to have been laid at
rest forever by the decisions of this court in McCulloch v. Maryland, 4 Wheat.
316, 405 et seq., 4 L. Ed. 579, Cohens v. Virginia, 6 Wheat. 264, 381, 387, 414,
5 L. Ed. 257; and many other decisions in the time of Chief Justice Marshall
and since.
118 But why should the primary election (or nominating convention) and the final
election be treated as things so separate and apart as not to be both included in
section 4 of article I? The former has no reason for existence, no function to
perform, except as a preparation for the latter; and the latter has been found by
experience in many states impossible of orderly and successful accomplishment
without the former.
119 Why should this provision of the Constitutionso vital to the very structure of
the governmentbe so narrowly construed? It is said primaries were unknown
when the Constitution was adopted. So were the steam railway and the electric
telegraph. But the authority of Congress to regulate commerce among the
several states was extended over these instrumentalities, because it was
recognized that the manner of conducting the commerce was not essential. And
this court was prompt to recognize that a transportation of merchandise,
incidentally interrupted for a temporary purpose, or proceeding under
successive bills of lading or means of transport, some operating wholly
intrastate, was none the less interstate commerce, if such commerce was the
practical and essential result of all that was done. The Daniel Ball, 10 Wall.
557, 565, 19 L. Ed. 999; Southern Pacific Terminal Co. v. Interstate Com.
Comm., 219 U. S. 498, 526, 527, 31 Sup. Ct. 288, 55 L. Ed. 283; Ohio R. R.
Comm. v. Worthington, 225 U. S. 101, 108, 110, 32 Sup. Ct. 635, 56 L. Ed.
1004; United States v. Union Stock Yard, 226 U. S. 286, 304, 33 Sup. Ct. 83,
57 L. Ed. 226; Texas & N. O. R. R. Co. v. Sabine Tram Co., 227 U. S. 111,
124, 33 Sup. Ct. 229, 57 L. Ed. 442.
120 Why is it more difficult to recognize the integral relation of the several steps in
the process of election?
121 Congress, by the so-called Enforcement Act of May 31, 1870 (chapter 114,
20, 16 Stat. 140, 145), and the supplement approved February 28, 1871
(chapter 99, 1, 2, 3, 4, 16 Stat. 433, 434), prescribed a variety of regulations
relating to elections of members of the House of Representatives, including
provisions for safeguarding the registration of voters. These were carried into
the Revised Statutes as sections 2011, 2016, 2021, 2022, 5522. They were
attacked as unconstitutional in Ex parte Siebold, 100 U. S. 371, 25 L. Ed. 717,
and were sustained as an exertion of the authority of Congress to pass laws for

regulating and superintending such elections and for securing their purity
without suggestion that the registration of voters was not, for practical
purposes, a part of the election itself and subject to regulation as such. Yet, in
point of causation, identification of voters is related to the election no more
closely than is the naming of candidates.
122 It is said that if 'the manner of holding elections' had been understood in a sense
to include the nominating procedure, ratification of the Constitution by the state
conventions could not have been secured. I do not see how this can be
confidently asserted, in view of the fact that, by the very hypothesis, the
conventions ratified a specific provision for regulating the only manner of
holding elections with which they were familiardealt with the entire subject
without limitation. Mr. Justice Story, in rehearsing the objections, and the
reasoning by which they were met, with citations from the debates and from the
Federalist, refers to no objection that would be more cogent, supposing the
regulation were extended to nominating procedure, than it would be if the
regulation were confined to the ultimate election. Story, Const., 814-827.
The sufficient answer to all objections was found in Hamilton's 'plain
proposition, that every government ought to contain in itself the means of its
own preservation.' Federalist, No. 89.
123 What was said, in No. 60 of the Federalist, about the authority of the national
government being restricted to the regulation of the times, the places, and the
manner of elections, was in answer to a criticism that the national power over
the subject 'might be employed in such a manner as to promote the election of
some favorite class of men in exclusion of others,' as by discriminating
'between the different departments of industry, or between the different kinds of
property, or between the different degrees of property,' or by a leaning 'in favor
of the landed interest, or the moneyed interest, or the mercantile interest, or the
manufacturing interest,' and it was to support his contention that there was 'no
method of securing to the rich the preference apprehended, but by prescribing
qualifications of property either for those who may elect, or be elected,' which
formed no part of the power to be conferred upon the national government, that
Hamilton proceeded to say that its authority would be 'expressly restricted to
the regulation of the times, the places, and the manner of elections.' This
authority would be as much restricted, in the sense there intended, if 'the
manner of elections' were construed to include all the processes of election
from first to last. The restriction arose from the express qualifications
prescribed for members of House and Senate, and for those who were to choose
them, subject to which all regulation of preliminary, as well as of final, steps in
the election necessarily would have to proceed.

124 In support of a narrow construction of the power of Congress to regulate 'the

manner of elections' of its membership, it is said there is a check against
corruption and kindred evils affecting the nominating procedure, in the
authority of each house to judge of the elections, returns, and qualifications of
its own members; the suggestion being that ifto take a clear caseit
appeared that one chosen to the Senate had secured his election through bribery
and corruption at the nominating primary, he might be refused admittance.
Obviously, this amounts to a concession that the primary and the definitive
election, whose legal separateness is insisted upon, are essentially but parts of a
single process; else how could the conduct of a candidate with reference to the
primary have legitimate bearing upon the question of his election as Senator?
But the suggestion involves a fundamental error of reasoning. The power to
judge of the elections and qualifications of its members, inhering in each House
by virtue of section 5 of article I, is an important power, essential in our system
to the proper organization of an elective body of representatives. But it is a
power to judge, to determine upon reasonable consideration of pertinent matters
of fact according to established principles and rules of law; not to pass an
arbitrary edict of exclusion. And I am unable to see how, in right reason, it can
be held that one of the houses of Congress, in the just exercise of its power,
may exclude an elected member for securing by bribery his nomination at the
primary, if the regulation by law of his conduct at the primary is beyond the
constitutional power of Congress itself. Moreover, the power of each house,
even if it might rightfully be applied to exclude a member in the case suggested,
is not an adequate check upon bribery, corruption, and other irregularities in the
primary elections. It can impose no penal consequences upon the offender;
when affirmatively exercised it leaves the constituency for the time without
proper representation; it may exclude one improperly elected, but furnishes no
rule for the future by which the selection of a fit representative may be assured;
and it is exerted at the will of but a single house, not by Congress as a lawmaking body.
125 But if I am wrong thus farif the word 'elections' in article I, section 4, of the
Constitution must be narrowly confined to the single and definitive step
described as an election at the time that instrument was adoptednevertheless
it seems to me too clear for discussion that primary elections and nominating
conventions are so closely related to the final election, and their proper
regulation so essential to effective regulation of the latter, so vital to
representative government, that power to regulate them is within the general
authority of Congress. It is matter of common knowledge that the great mass of
the American electorate is grouped into political parties, to one or the other of
which voters adhere with tenacity, due to their divergent views on questions of
public policy, their interest, their environment, and various other influences,

sentimental and historical. So strong with the great majority of voters are party
associations, so potent the party slogan, so effective the party organization, that
the likelihood of a candidate succeeding in an election without a party
nomination is practically negligible. As a result, every voter comes to the polls
on the day of the general election confined in his choice to those few candidates
who have received party nominations, and constrained to consider their
eligibility, in point of personal fitness, as affected by their party associations
and their obligation to pursue more or less definite lines of policy, with which
the voter may or may not agree. As a practical matter, the ultimate choice of
the mass of voters is predetermined when the nominations have been made.
Hence, the authority of Congress to regulate the primary elections and
nominating conventions arises, of necessity, not from any indefinite or implied
grant of power, but from one clearly expressed in the Constitution itself (article
I, 8, cl. 18):
126 'To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any Department or
Officer thereof.'
127 This is the power preservative of all others, and essential for adding vitality to
the framework of the government. Among the primary powers to be carried into
effect is the power to legislate through a Congress consisting of a Senate and
House of Representatives chosen by the peoplein short, the power to
maintain a law-making body representative in its character. Another is the
specific power to regulate the 'manner of holding elections for Senators and
Representatives,' conferred by section 4 of the first article; and if this does not
in literal terms extend to nominating proceedings intimately related to the
election itself, it certainly does not in terms or by implication exclude federal
control of those proceedings. From a grant to the states of power to regulate the
principal matter, expressly made subject to revision and alteration by the
Congress, it is impossible to imply a grant to the states of regulatory authority
over accessory matters exclusive of the Congress. And it is obvious that if
clause 18 adds nothing to the content of the other express powers, when these
are literally interpreted, it has no efficacy whatever and must be treated as
surplusage. It has not, heretofore, been so regarded. The subject was
exhaustively treated by Chief Justice Marshall, speaking for the court in the
great case already referred to, McCulloch v. Maryland, 4 Wheat. 316, 411-424,
where he pointed out, pp. 419, 420 (4 L. Ed. 579):
128 '1st. The clause is placed among the powers of Congress, not among the
limitations on those powers. 2d. Its terms purport to enlarge, not to diminish the

powers vested in the government. It purports to be an additional power, not a

restriction on those already granted.'
129 According to the conclusive reasoning adopted in that case, whatever meaning
may be attributed to section 4 of article I, there is added by clause 18 of section
8 everything necessary or proper for carrying it into executionwhich means,
into practical and complete effect.
130 The passage of the act under consideration amounts to a determination by the
lawmaking body that the regulation of primary elections and nominating
conventions is necessary if the Senate and House of Representatives are to be,
in a full and proper sense, representative of the people. Not only is this true of
those cases referred to in the report of the Senate Committee (Senate Rept. No.
78, 62d Cong. 1st Sess. p. 2), where the parties are so unequally divided that a
nomination by the majority party is equivalent to election; but it is true in every
case to the extent that the nominating processes virtually eliminate from
consideration by the electors all eligible candidates except the fewtwo or
three, perhapswho succeed in receiving party nominations. Sinister
influences exerted upon the primaries inevitably have their effect upon the
ultimate electionare employed for no other reason. To safeguard the final
elections while leaving the proceedings for proposing candidates unregulated,
is to postpone regulation until it is comparatively futile. And Congress might
well conclude that, if the nominating procedure were to be left open to fraud,
bribery, and corruption, or subject to the more insidious, but (in the opinion of
Congress) nevertheless harmful, influences resulting from an unlimited
expenditure of money in paid propaganda and other purchased campaign
activities, representative government would be endangered.
131 The question of the authority of Congress to determine that laws regulating
primary elections are 'necessary and proper for carrying into execution' the
other powers specified, admits of but one answerthe same given by Chief
Justice Marshall in the memorable case last cited (4 Wheat. 421, 4 L. Ed. 579):
132 'We think the sound construction of the Constitution must allow to the national
Legislature that discretion, with respect to the means by which the powers it
confers are to be carried into execution, which will enable that body to perform
the high duties assigned to it, in the manner most beneficial to the people. Let
the end be legitimate, let it be within the scope of the Constitution, and all
means which are appropriate, which are plainly adapted to that end, which are
not prohibited, but consist with the letter and spirit of the Constitution, are
constitutional.'

133 This principle has been consistently adhered to and liberally applied from that
day until this. Among a multitude of illustrative cases that might be cited, some
recent notable, but not exceptional, ones may be instanced: Second Employers'
Liability Cases, 223 U. S. 1, 49, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A. (N.
S.) 44, holding that the power of Congress to regulate commerce among the
states brings within its authority the relations between common carriers by rail
and their employees engaged in such commerce; Houston & Texas Ry. v.
United States, 234 U. S. 342, 350, 355, 34 Sup. Ct. 833, 58 L. Ed. 1341,
holding that the same power authorizes Congress to regulate rates of
transportation in the internal commerce of a state, to the extent of preventing
injurious discrimination against the movement of traffic from state to state;
Wilson v. New, 243 U. S. 332, 353, 37 Sup. Ct. 298, 61 L. Ed. 755, L. R. A.
1917E, 938, Ann. Cas. 1918A, 1024, holding that the power over interstate
commerce extends to regulating the wages of the employees of common
carriers engaged therein; Selective Draft Law Cases, 245 U. S. 366, 377, et
seq., 38 Sup. Ct. 159, 62 L. Ed. 349, L. R. A. 1918C, 361, Ann. Cas. 1918B,
856, sustaining an act imposing involuntary military duty upon the citizen as
'necessary and proper for carrying into execution' the power to declare war,
raise and support armies, and make rules for the government and regulation of
the land and naval forces; United States v. Ferger, 250 U. S. 199, 205, 39 Sup.
Ct. 445, 63 L. Ed. 936, upholding the authority of Congress to prohibit and
punish the fraudulent making of spurious interstate bills of lading even in the
absence of any actual or contemplated movement of commerce from state to
state; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146, 155, 163, 40 Sup.
Ct. 106, 64 L. Ed. 194, sustaining war-time prohibition of the sale of distilled
spirits for beverage purposes as a measure necessary and proper for carrying
into execution the war power; Jacob Ruppert v. Caffey, 251 U. S. 264, 282,
299-301, 40 Sup. Ct. 141, 64 L. Ed. 260, sustaining an act prohibiting the
manufacture and sale of nonintoxicating beer as 'necessary and proper' to render
effective a prohibition against intoxicants; First National Bank v. Union Trust
Co., 244 U. S. 416, 419, 37 Sup. Ct. 734, 61 L. Ed. 1233, L. R. A. 1918C, 283,
Ann. Cas. 1918D, 1169, sustaining an act conferring upon national banks
powers not inherently federal, but deemed appropriate to enable such banks to
compete with state banks having like powers; and Smith v. Kansas City Title &
Trust Co., 255 U. S. 180, 41 Sup. Ct. 243, 65 L. Ed. 577 (decided February 28,
last), sustaining an act establishing federal land banks and joint stock land
banks having broad powers, not national in their character, but deemed by
Congress to be reasonably appropriate for performing certain limited fiscal
functions in aid of the national treasury.
134 It would be tragic if that provision of the Constitution which has proved the
sure defense of every outpost of national power should fail to safeguard the

very foundation of the citadel.

135 But its function in preserving our representative government has long been
recognized. In Ex parte Yarbrough, 110 U. S. 651, 657, 4 Sup. Ct. 152 (28 L.
Ed. 274), where the question was as to the constitutionality of sections 5508
and 5520, Rev. Stat. U. S. (Comp. St. 10183)the question having arisen
upon an indictment for a conspiracy to intimidate a citizen of African descent in
the exercise of his right to vote for a member of Congressthe court, by Mr.
Justice Miller, said:
136 'That a government whose essential character is republican, whose executive
head and legislative body are both elective, whose most numerous and
powerful branch of the Legislature is elected by the people directly [now true
of both branches], has no power by appropriate laws to secure this election from
the influence of violence, of corruption, and of fraud, is a proposition so
startling as to arrest attention and demand the gravest consideration. If this
government is anything more than a mere aggregation of delegated agents of
other states and governments, each of which is superior to the general
government, it must have the power to protect the elections on which its
existence depends from violence and corruption. If it has not this power it is left
helpless before the two great natural and historical enemies of all republics,
open violence and insidious corruption. The proposition that it has no such
power is supported by the old argument, often heard, often repeated, and in this
court never assented to, that when a question of the power of Congress arises
the advocate of the power must be able to place his finger on words which
expressly grant it. * * * It destroys at one blow, in construing the Constitution
of the United States, the doctrine universally applied to all instruments of
writing, that what is implied is as much a part of the instrument as what is
expressed. This principle, in its application to the Constitution of the United
States, more than to almost any other writing, is a necessity, by reason of the
inherent inability to put into words all derivative powersa difficulty which
the instrument itself recognizes by conferring on Congress the authority to pass
all laws necessary and proper to carry into execution the powers expressly
granted and all other powers vested in the government or any branch of it by
the Constitution. Article I, 8, cl. 18.'
137 I conclude that it is free from doubt that the Congress has power under the
Constitution to regulate the conduct of primary elections and nominating
conventions held for choosing candidates to be voted for in general elections
for Representatives and Senators in Congress, and that the provisions of the Act
of August 19, 1911 (37 Stat. 26-28), in that behalf are valid.

138 Since the majority of the court hold that the act is invalid, it would serve no
useful purpose to spend time in discussing those assignments of error that relate
to the conduct of the trial. It may be said, however, that, in my opinion, the trial
court did not err in refusing to direct a verdict for the defendants for want of
evidence of the alleged conspiracy; nor in instructing the jury that the
prohibition of the statute against the expenditure and use of money by a
candidate beyond the specified limit is not confined to his own money, but
extends to the expenditure or use of excessive sums of money by him, from
whatever source and from whomsoever derived; nor in instructing them that in
order to warrant a ver dict of guilty upon an indictment for conspiracy it was
not necessary that the government should show that defendants knew that some
statute forbade the acts they were contemplating, but only to show an
agreement to do acts constituting a violation of the statute; their knowledge of
the law being presumed.
139 I find prejudicial error, however, in that part of the charge which assumed to
define the extent to which a candidate must participate in expenditures beyond
the amount limited in order that he may be held to have violated the prohibition
an instruction vitally important because it was largely upon overt acts
supposed to have been done in carrying out the alleged conspiracy that the
government relied to prove the making of the conspiracy and its character, and
because, unless the purposes of defendants involved a violation of the Corrupt
Practices Act, they were not guilty of a conspiracy to commit an 'offense
against the United States,' within the meaning of section 37, Criminal Code.
140 The instruction upon this topic, excepted to and assigned for error, was as
follows:
141 'The phrase which constitutes the prohibition against the candidate 'causing to
be given, contributed, expended or used' excessive sums of money, is not
limited and not confined to expenditures and use of money made directly and
personally by himself. This prohibition extends to the expenditure and use of
excessive sums of money in which the candidate actively participates, or
assists, or advises, or directs, or induces, or procures. The prohibition extends
not only to the expenditure and use of excessive sums of money by the
candidate directly and personally, but to such use and expenditure through his
agency, or procurement, or assistance. To constitute a violation of this statute
knowledge of the expenditure and use of excessive sums of money on the part
of the candidate is not sufficient; neither is it sufficient to constitute a violation
of this statute that the candidate merely acquiesces in such expenditures and
use. But it is sufficient to constitute a violation of this statute if the candidate

actively participates in doing the things which occasion such expenditures and
use of money and so actively participates with knowledge that the money is
being expended and used. To apply these rules to this case: If you are satisfied
from the evidence that the defendant, Truman H. Newberry, at or about the
time that he became a candidate for United States Senator was informed and
knew that his campaign for the nomination and election would require the
expenditure and use of more money than is permitted by law and with such
knowledge became a candidate, and thereafter by advice, by conduct, by his
acts, by his direction, by his counsel, or by his procurement he actively
participated and took part in the expenditure and use of an excessive sum of
money, of an unlawful sum of money, you will be warranted in finding that he
did violate this statute known as the Corrupt Practices Act.'
142 However this may be regarded when considered in the abstract, the difficulty
with it, when viewed in connection with the evidence in the case to which the
jury was called upon to apply it, is that it permitted and perhaps encouraged the
jury to find the defendants guilty of a conspiracy to violate the Corrupt
Practices Act, if they merely contemplated a campaign requiring the
expenditure of money beyond the statutory limit, even though Mr. Newberry,
the candidate, had not, and it was not contemplated that he should have, any
part in causing or procuring such expenditure beyond his mere standing
voluntarily as a candidate and participating in the campaign with knowledge
that moneys contributed and expended by others without his participation were
to be expended.
143 The language of the Corrupt Practices Act (37 Stat. 28) is:
144 'No candidate * * * shall give, contribute, ex pend, use, or promise, or cause to
be given, contributed, expended, used, or promised,' etc.
145 A reading of the entire act makes it plain that Congress did not intend to limit
spontaneous contributions of money by others than a candidate, nor
expenditures of such money except as he should participate therein. Of course,
it does not mean that he must be alone in expending or causing to be expended
the excessive sums of money; if he does it through an agent or agents, or
through associates who stand in the position of agents, no doubt he is guilty;
qui facit per alium facit per se; but unless he is an offender as a principal there
is no offense. Section 332, Criminal Code, declares:
146 'Whoever directly commits any act constituting an offense defined in any law of
the United States, or aids, abets, counsels, commands, induces, or procures its

commission, is a principal.'
147 Clearly this makes any one who abets a candidate in expending or causing to be
expended excessive sums a principal offender; but it cannot change the
definition of the offense itself as contained in the Corrupt Practices Act, so as to
make a candidate a principal offender unless he directly commits the offense
denounced. Spontaneous expenditures by others being without the scope of the
prohibition, neither he nor anybody else can be held criminally responsible for
merely abetting such expenditures.
148 It follows that one's entry upon a candidacy for nomination and election as a
Senator with knowledge that such candidacy will come to naught unless
supported by expenditure of money beyond the specified limit, is not within the
inhibition of the act unless it is contemplated that the candidate shall have a
part in procuring the excessive expenditures beyond the effect of his mere
candidacy in evoking spontaneous contributions and expenditures by his
supporters; and that his remaining in the field and participating in the ordinary
activities of the campaign with knowledge that such activities furnish in a
general sense the 'occasion' for the expenditure is not to be regarded as a
'causing' by the candidate of such expenditure within the meaning of the statute.
149 The state of the evidence made it important that, in connection with that portion
of the charge above quoted, the jury should be cautioned that unless it was a
part of defendants' plan that Mr. Newberry should actually participate in giving,
contributing, expending, using, or promising, or causing to be given,
contributed, expended, used, or promised moneys in excess of the limited
amounteither himself or through others as his agentshis mere participation
in the activities of the campaign, even with knowledge that moneys
spontaneously contributed and expended by others, without his agency,
procurement, or assistance, were to be or were being expended, would not of
itself amount to his causing such excessive expenditure. The effect of the
instruction that was given may well have been to convey to the jury the view
that Mr. Newberry's conduct in becoming and remaining a candidate with
knowledge that spontaneous contributions and expenditures of money by his
supporters would exceed the statutory limit, and his active participation in the
campaign were necessarily equivalent to an active participation by him in
causing the expenditure and use of an excessive sum of money, and that a
combination among defendants having for its object Mr. Newberry's
participation in a campaign where money in excess of the prescribed limit was
to be expended, even without his participation in the contribution or
expenditure of such money, amounted to a conspiracy on their part to commit
an offense against the act.

150 For error in the instructions in this particular the judgment should be reversed,
with directions for a new trial.
151 Mr. Justice BRANDEIS and Mr. Justice CLARKE concur in this opinion.

Act 109, Michigan Legislature, 1913:

'Section I. No sums of money shall be paid, and no expenses authorized or
incurred by or on behalf of any candidate 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 twenty-five per cent. of one year's compensation or salary of the
office for which he is candidate: Provided, that a sum not exceeding fifty per
cent. of one year's salary may be expended by the candidates for Governor and
Lieutenant Governor; or where the office is that of member of either branch of
the Legislature of the state, the twenty-five per cent. shall be computed on the
salary fixed for the term of two years: Provided further, that no candidate shall
be restricted to less than one hundred dollars in his campaign for such
nomination. No sums of money shall be paid and no expense authorized or
incurred by or on behalf of any candidate who has received the nomination to
any public office or position in this state, in excess of twenty-five per cent. of
one year's salary or compensation of the office for which he is nominated; or
where the office is that of member of either branch of the Legislature of the
state, the twenty-five per cent. shall be computed on the salary fixed for the
term of two years: Provided, that no candidate shall be restricted to less than
one hundred dollars. No sum of money shall be paid and no expenses
authorized or incurred by or on behalf of any candidate contrary to the
provisions of this act.'

Count One.That Truman H. Newberry, Chase S. Osborne, Henry Ford and

William B. Simpson, before and on August 27, 1918, were candidates for the
Republican nomination for the office of Senator in the Congress of the United
States from the state of Michigan at the primary election held in said state on
that day under the laws of said state, and Henry Ford and James Helm, before
and on said August 27, 1918, were candidates for the Democratic nomination
for the same office at said primary election; that from said August 27, 1918, to
and including November 5, 1918, said Truman H. Newberry and said Henry
Ford, by reason of their election and nomination at said primary election,
became and were opposing candidates for election to the office of Senator in
the Congress of the United States from said state of Michigan at the general
election held in said state on said November 5, 1918said Truman H.
Newberry of the Republican party and said Henry Ford of the Democratic party

each of said candidates having, on said August 27, 1918, and on November
5, 1918, attained to the age of thirty years and upwards and been a citizen of the
United States for more than nine years and each then being an inhabitant and
resident of said state; and that said Truman H. Newberry, Paul H. King (and
133 others), hereinafter called the defendants, continuously and at all and divers
times throughout the period of time from December 1, 1917, to and including
said November 5, 1918, at and within said Southern division of said Western
district of Michigan, unlawfully and feloniously did conspire. combine,
confederate and agree together, and with divers other persons to said grand
jurors unknown, to commit an offense against the United States, to wit, the
offense on the part of said Truman H. Newberry of willfully violating the Act
of Congress approved June 25, 1910, as amended by the Acts of August 19,
1911, and August 23, 1912, by giving, contributing, expending and using and
by causing to be given, contributed, expended and used, in procuring his
nomination and election as such Senator at said primary and general elections,
a sum, in the aggregate, in excess of the amount which he might lawfully give,
contribute, expend, or use or cause to be given, contributed, expended or used
for such purpose under the laws of said state of Michigan, to wit the sum of one
hundred thousand dollars, and by giving, contributing, expending and using and
causing to be given, contributed, expended and used in procuring his
nomination and election as such Senator, at said primary and
general elections, a sum in the aggregate, in excess of ten thousand dollars, towit said sum of one hundred thousand dollars and on the part of said other
defendants of aiding, counseling, inducing and procuring said Truman H.
Newberry so to give, contribute, expend and use and cause to be given,
contributed, expended and used said large sum of money in excess of the
amounts permitted by the laws of the state of Michigan and the said Acts of
Congress; the same to be money so unlawfully given, contributed, expended
and used by said Truman H. Newberry and by him caused to be given,
contributed, expended and used as such candidate for the following and other
purposes, objects and things, to wit:
Advertisements in newspapers and other publications;
Print paper, cuts, plates and other supplies furnished to newspaper publishers;
Subscriptions to newspapers;
Production, distribution and exhibition of moving pictures;
Traveling and subsistence expenses of campaign managers, public speakers,
secret propagandists, field, district and county agents and solicitors, and of
voters not infirm or disabled;

Compensation of campaign managers, public speakers and secret propagandists,

and of field, district and county agents and solicitors;
Appropriating and converting to the use of the defendants themselves, and each of them, large sums of money under the guise and pretense of
payment of their expenses and compensation for their services;
Rent of offices and public halls;
Bribery of election officials:
Unlawful assistance of election officials;
Bribery of voters;
Expenses and compensation of Democratic obstructionist candidates at the
primary election;
Expenses and compensation of detectives;
Dinners, banquet and other entertainments given to persons believed to be
influential in said state of Michigan;
And no part of which said money was to be money expended by said Truman
H. Newberry, as such candidate, to meet or discharge assessments, fees, or
charges made or levied upon candidates by the laws of said state, or for his
necessary personal expenses, incurred for himself alone, for travel and
subsistence, stationery and postage, writing or printing (other than in
newspapers), or for distributing letters, circulars, or postage, or for telegraph or
telephone service, or for proper legal expenses in maintaining or contesting the
results of either of said elections.
[38 distinct and separate overt acts are specified.]
And so the grand jurors aforesaid, upon their oaths aforesaid, do say, that said
defendants, continuously and at all and divers times throughout the period of
time in this count mentioned, at and within said division and district, in manner
and form in this count aforesaid, unlawfully and feloniously did conspire to
commit an offense against the United States, and certain of them did do acts to
effect the object of the conspiracy against the peace and dignity of the United
States, and contrary to the form of the statute of the same in such case made
and provided.
3

S. J. Res. 134, 61st Congress, Cong. Rec., vol. 46, p. 847.

'Resolved by the Senate and House of Representatives of the United States of

America in Congress assembled (two-thirds of each house concurring therein),
that in lieu of the first paragraph of section 3 of article 1 of the Constitution of
the United States, and in lieu of so much of paragraph 2 of the same section as
relates to the filling of vacancies, and in lieu of all of paragraph 1 of section 4 of
said article 1, in so far as same relates to any authority in Congress to make or
alter regulations as to the times or manner of holding elections for Senators, the
following be proposed as an amendment to the Constitution, which shall be
valid to all intents and purposes as part of the Constitution when ratified by the
Legislatures of three-fourths of the states:
"The Senate of the United States shall be composed of two Senators from each
state, elected by the people thereof for six years; and each Senator shall have
one vote. The electors in each state shall have the qualifications requisite for
electors of the most numerous branch of the state Legislatures.
"The times, places, and manner of holding elections for Senators shall be
prescribed in each state by the Legislature thereof.
"When vacancies happen in the representation of any state in the Senate, the
executive authority of such state shall issue writs of election to fill such
vacancies: Provided, that the Legislature of any state may empower the
executive thereof to make temporary appointments until the people fill the
vacancies by election, as the Legislature may direct.
"This amendment shall not be so construed as to affect the election or term of
any Senator chosen before it becomes valid as part of the Constitution."
4

Act of June 4, 1914, c. 103, 38 Stat. 384:

'An act providing a temporary method of conducting the nomination and
election of United States Senators.
'Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, that at the regular election held in any state
next preceding the expiration of the term for which any Senator was elected to
represent such state in Congress, at which election a Representative to
Congress is regularly by law to be chosen, a United States Senator from said
state shall be elected by the people thereof for the term commencing on the
fourth day of March next thereafter.
'Sec. 2. That in any state wherein a United States Senator is hereafter to be
elected either at a general election or at any special election called by the
executive authority thereof to fill a vacancy, until or unless otherwise specially

provided by the Legislature thereof, the nomination of candidates for such

office not heretofore made shall be made, the election to fill the same
conducted, and the result thereof determined, as near as may be in accordance
with the laws of such state regulating the nomination of candidates for and
election of members at large of the national house of Representatives:
Provided, that in case no provision is made in any state for the nomination or
election of Representatives at large, the procedure shall be in accordance with
the laws of such state respecting the ordinary executive and administrative
officers thereof who are elected by the vote of the people of the entire state:
And, provided further, that in any case the candidate for Senator receiving the
highest number of votes shall be deemed elected.
'Sec. 3. That section two of this act shall expire by limitation at the end of three
years from the date of its approval.'
Approved June 4, 1914.
5

Cong. Rec. vol. 46, part 1, p. 851.

Cong. Rec. vol. 46, part 4, p. 3307.

H. Rep. No. 2, 62d Cong. 1st Sess.

Cong. Rec. vol. 47, part 1, p. 787.

S. Rep. No. 35, 62d Cong. 1st Sess.

10

Cong. Rec. vol. 47, part 2, p. 1205.

11

'In many Western and Southern states the direct primary method has been
applied to the choice of United States Senators as well as to state officers. In
the Southern states, victory in such a primary, on the Democratic side, is
practically the equivalent of an election, as there is but one effective party in
that section of the country. The direct nomination of senators is generally
accomplished under voluntary party regulations, as in Alabama, Arkansas,
South Carolina, and Virginia. In other cases, however, this method of choice
has been placed under legal protection, as in Florida (1901), Mississippi (1902),
Louisiana (1906), and Texas (1907). Some Northern states have also adopted
this method of direct nomination. Among Northern states, Wisconsin led the
way in 1903, followed by Oregon in 1904, Montana in 1905, Iowa,
Washington, Nebraska, North Dakota in 1907, Illinois, Kansas, New Jersey,
Ohio, and Oklahoma in 1908. * * * In some of the states, as in Oregon,
candidates for the Legislature are afforded an opportunity to pledge themselves
to vote for the party candidate receiving the highest vote in the regular election.

In other cases a pledge is made to vote for the candidate receiving the highest
number of votes in the primary.' Merriam, Primary Elections, 1908, pp. 8385.
On this general topic, see the excellent treatise on the Election of Senators, by
George H. Haynes (1906), especially chapter XI.
+ Oregon, 1904, 13. In Washington the candidate may pledge himself to vote
for the party choice for United States Senator (1907, 31). This latter is the
general rule.