Sunday, February 1, 2009
Victor L. Berger: the comeback kid
Born in Austria-Hungary in 1860, Berger emigrated to Milwaukee, Wisconsin in 1878 with his family. After working as a metal polisher and teacher, he became the editor and publisher of several newspapers, including Wahrheit and the Social Democratic Herald (which he later converted to the Milwaukee Leader). He was one organizer of Social Democracy in 1897 and the Social Democratic Party in 1898, which became the Socialist Party after 1900. After an unsuccessful 1904 bid for Congress, Berger was elected to represent Wisconsin's Fifth District in 1910 and served one term before he was defeated for re-election.
Returning to his work in journalism, Berger vociferously opposed American entry into the First World War. He published several editorials and made numerous speeches to that effect, arguing that entry into the war would only be justified if the United States was invaded, that commercial interests run by non-fighting plutocrats would be the main benefactors, and that labor movements would not benefit because any strikes would be denounced as treasonous during wartime. After the United States entered the war in April of 1917, Berger signed a proclamation denouncing the declaration of war as a crime against the people of the U.S. and the world.
After the declaration of war, Congress passed the Espionage Act to curb activities that were supposedly detrimental to the war effort. It included a punishment of imprisonment for anyone "making false statements with intent to interfere with the operation or success of the military or naval forces," and allowed the post office to block any mail "advocating or urging treason, insurrection, or forcible resistance to any law of the United States." The Leader was promptly hit by the latter provision when the Postmaster General stripped the paper of its second-class mailing privileges and blocked all first-class mail going to it.
After an unsuccessful bid for the Socialist nomination to Senate, Berger was indicted on federal charges of violation of the Espionage Act in February of 1918. Despite the indictment and pending trial, Berger was elected in November (a matter of days before the war's conclusion) to once again represent the Fifth District. A year after his indictment, Berger and four co-defendants accused of antiwar activities unrelated to Berger's were found guilty of violating the Espionage Act and sentenced to serve 20 years in prison.
All appealed the verdict and were freed on bail. Berger said he would not retract any of his arguments, maintaining that the war had been a capitalist one and that a "verdict like the one rendered in this court would be impossible in any other civilized country today, with the possible exception of Japan." He added that antiwar suppression would only lead to an "ill-natured, secretive, and dangerous movement" and criticized the newly formed League of Nations as a "thin screen behind which the capitalistic classes of the winning side are dividing the spoils."
Despite the conviction, Berger maintained that he was entitled to his seat in Congress. A special committee was formed and recommended that Berger should not be seated. In November of 1919, the House voted 309 to 1 to follow the recommendation on the argument that Berger had violated a section of the Fourteenth Amendment barring the seating of government representatives who had previously taken an oath of office and later engaged in rebellion or provided comfort to an enemy. The sole dissenter was Edward Voight, a Wisconsin Republican. Berger defended his actions, saying he had not inhibited the war effort in any way.
The Governor of Wisconsin, Emanuel L. Philipp, called a special election for December to fill the vacancy. Berger was once again nominated as the Socialist candidate, facing Henry H. Bodenstab, a candidate chosen by a caucus of Republicans, Democrats, and the Good Government League. Philipp urged voters to support Bodenstab, believing Congress would simply not seat Berger again if he were re-elected. Instead, Berger gained about 8,000 votes over the November election.
When he showed up to claim his seat again in January of 1920, Berger gained some support from both Democrats and Republicans, but not nearly enough. James R. Mann, an Illinois Republican, said Berger deserved the seat due to the back-to-back elections from his district. "Has it come to the point that a man who believes certain things cannot be heard?" he asked. Joe Eagle, a Texas Democrat, denounced Mann's argument. He said that it would allow any candidate to be seated if elected, even if they did not meet constitutional requirements. Expanding his distaste for Berger to the Fifth District, Eagle said, "Under Mr. Mann's argument, because Berger has constituents un-American enough that they approve his infamy, you must allow to sit in your company a man who, at the time the nation's destiny was at stake, struck, in the interest of the Central Empires, treacherously against the flag which protected him."
The vote not to seat Berger passed 328 to 6. The Socialist Party defiantly nominated Berger for a third go-round but Philipp, declaring that another special election would be too costly, said the district would go without a congressman until one was chosen in the 1920 election. Zechariah Chafee, a Harvard University law professor, wrote in that year that the argument that Berger was not qualified to serve under the Fourteenth Amendment didn't hold water, and that the denial of mail services was "confusing opposition to the war with wishing the enemy to win." However, Chafee also assured readers that he "thoroughly detest[ed] the attitude of Berger," seeing him as using the war as "an impersonal step in an economic argument." Perhaps to save another hassle, voters chose Republican candidate William H. Stafford over Berger in the 1920 election.
In 1921, the Supreme Court found that Berger and his co-defendants were entitled to a new trial. The justices determined that the judge in the case, Kenesaw Mountain Landis, should have excused himself from the matter due to prior inflammatory statements he had made against German immigrants, Socialists, and radicals. In 1923, all cases against Berger were dropped.
Berger won the 1922 election to Congress, and was seated without issue. He went on to win the next two elections before again losing to Stafford in 1928. Returning to newspaper work, Berger died in 1929 of injuries sustained after he was struck by a streetcar. Time recalled that his proposals in Congress included advocating the replacement of the Senate with a nationwide referendum, repealing Prohibition, establishing an old age pension bill and unemployment insurance, and nationalizing railroads, telegraphs, and telephones.
Sources: The Biographical Directory of the United States Congress, "Berger Sentenced to 20-Year Term" in the New York Times on Feb. 20 1919, "House Refuses to Seat Berger" in the New York Times on Nov. 11 1919 "Berger Elected by 4,806 Majority" in the New York Times on Dec. 20 1919, "House Again Denies Berger His Seat" in the New York Times on Jan. 21 1920, "Berger Conviction Reversed by Court" in the New York Times on Feb. 1 1921, "Burgher Berger" in Time on Aug. 19 1929, Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism by Geoffrey R. Stone, From the Palmer Raids to the Patriot Act: A History of the Fight for Free Speech in America by Christopher M. Finan, Freedom of Speech by Zechariah Chafee Jr., The Political Graveyard