Evening star., 1926-11-08
SENATE MAJORITY
MAY UNSEAT Ware
Borah Contends for Primary
Scrutiny-ExpuIsion Takes
Two Thirds Vote.
BY G.. GOULD LINCOLN.

BY G. GOULD LINCOLN.
In the expectation of contests over
the seating Of Senators.elect Ware and
Smith, Pennsylvania and Illinois, re-
spectively. Senator Borah of Idaho
has issued statement clearly indicat-
ing that primary elections for nomina-
tions for Congress are properly part
of the elections of Senators and Rep
resentatives.
decision by the Senate that the
Borah contention is correct regarding
the primaries would have an impor.
tant bearing on the Ware and Smith
contests. 1t would lead also, in all
probability. to an attempt to enact
Federal legislation controlling expendi-
lures in the primaries.
Once the Senate has decided that a
primary election is in reality part
and parcel of the election of a Sena-
tor the contests over the seating of
Ware and Smith become election con.
tests, such as have always been de.
clded by majority vote of the Senate.
Senator Borah today clearly indicated
that would be the situation.
Expulsion Needs Two.Thirds.
1t has been contended by Ware and
Smith supporters that it would re-
quire two-thirds vote to oust either
one or both of the Senators. elect, after
they had been permitted to take their
seats in accordance with senatorial
custom on the presentation of their
credentials properly signed and in
order. They have argued that under
the Constitution it requires a. two
thirds vote to expel a Senator. But
that provision of the Constitution has
been held to apply only in cases
where members have been perma-
nently seated. and not in cases where
the election itself of members of Con-
gress has been contested.
For example, the election of Col.
Smith w. Brookhart of Iowa was
contested in the Senate this year, and
the Senate. by small ma jority vote,
ousted him after hearing this con-
test, although he had been sworn in,
seated and had participated in legis-
lation. Another case of expulsion
from the Senate by majority vote
after a Senator had been seated was
that of former Senator Lorimer of
Illinois. Lorimer had occupied his
seat tor two years when the vote to
oust him was taken. The vote stood
55 to 2s for his removal, a majority
vote and less than a two-thirds vote
Of the Senate. 1t was charged that
votes in the State Legislature had
been bought for the purpose Of Sc
curing the election of Lorimer. In
those days Senators were chosen by
State Legislatures and not by popular
vote.
Control Over Primaries.
Senator Borah holds that the seven.
teenth amendment to the Constitu
ton. providing for the direct election
Of Senators, empowers Congress to
control congressional primaries as well
as general elections TO purge them OF
corruption. Senator Borah did not
refer directly in his statement to the
Smith and Ware cases, but declared
that developments during the last
few months bring up for constdera-
ton the power Of Congress over pri
mariee in which Representatives and
Senators are nominated
Broadly speaking. the Borah argu
ment goes to the entire question OF
control of senatorial primaries by
Congress Eventually if his conten.
ton is upheld in the Ware and Smith
cases. legislation will be undertaken
by give Congress such power.
us the rela tionship between the
nomination and the election such that
in the control of elections you must
necessarily include the nomination.
! Senator Borah asks. and continues
1T seems to me that the question
must be answered In the Affirmative
ha hnan Oonoro Ia
entertained that the Supreme Court
of the United States in the Newberry
case established the law to the con
trary. The Supreme Court did not
decide the question as 1t will be pre-
sented under the Seventeenth Amend
nent. In the Newberry case the en-
/ tire court concurred in the decision
that the judgment Of the lower court
should be reversed. But the opinion
was not unanimous relative to the
power of Congress over the primaries
Upon that proposition four Of the
| Judges held there was a want of con
, stitutional power. four that Congress-
| had constitutional power to deal with
/ primaries. and one justice reserved hi!
] opinion as to such power under the
| Seventeenth Amendment, the staut'
| in question having been passed priol
| TO the adoption of the Seventeenth
| Amendment.
Borah Reviews Authorities.
| "In this connection it is tmportan
| to bear in mind that. while Justice
! McReynolds wrote the opinion OF th'
court holding that Congress had ne
constitutional power to pass the ac
I in question, nevertheless this opinion
was restricted TO the constitutionalit,
of the act passed prior to the seven
teenth amendment. This language i!
used by Justice McReynolds:
| "a concession that the seventeenth
amendment might be applicable II
this controversy IL assisted by ap
propriate legislation would be unim
/ portant, since there Is none. Sectior
! II of the act of June 4. 1914. haG
expired by express limitation man,
months before Newberry became 4;
| candidate
| Senator Borah reviews the pro
visions of the Constitution and de
cisions of the Supreme Court to up
hold his contention that Congress hal
| Jurisdiction over primary elections