State Bar of Wisconsin

Law & the Progressive Era, Pt 1:
The Good Government Movement in Wisconsin, 1891-1921

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Where Were the Lawyers?

Wisconsin is said to have enjoyed its golden age during Robert LaFollette's tenure as governor (1901-06) and U.S. senator (1906-25). More changes were made in Wisconsin's laws, with a greater impact on the state's life, during this period than at any other time in the state's history. LaFollette unquestionably played a large role in effecting those changes. But he was part of a larger Progressive movement that secured similar changes throughout much of the United States. The Progressive movement began in Wisconsin before LaFollette became governor, and it continued long after he left Madison for Washington.¹

by Joseph A. Ranney

The changes in Wisconsin's laws during the Progressive era can be grouped into three general categories. First, the Progressives mounted a "good government" campaign, aimed at reducing the role that professional politicians played in elections and in government itself. The main fruits of this campaign were a direct primary law in 1903 and a civil service law in 1905. Second, the state's tax system was transformed: major changes were made in the property tax laws, and in 1911 Wisconsin enacted the first workable income tax in the United States. Lastly, the Legislature began construction of the state's modern social welfare system, most notably by creating the Industrial Commission and a worker's compensation system in 1911. This article discusses the first phase of the Progressive era, the good government movement.

The direct primary and the decline of political parties in Wisconsin

The direct primary election was one of the earliest political reforms that LaFollette promoted. LaFollette portrayed the enactment of the direct primary as a struggle between democracy and entrenched boss rule; as a result of that portrayal, the direct primary is probably the reform with which he is most closely associated today. However, a closer look at Wisconsin's 19th century election laws and at the process by which those laws were changed reveals a more complicated picture than the one LaFollette painted.

Robert M. LaFollette

Pre-LaFollette reform efforts. Throughout the 19th century Wisconsin, like most other states, selected candidates for public office at party conventions and caucuses. This was one of Jacksonian democracy's many legacies to Wisconsin's legal system.² The existing legal system was adequate to prevent voting fraud in general elections, but it was not designed to regulate convention abuses, which in the late 19th century became increasingly common in larger cities across the United States. Conventions were considered to be purely within the jurisdiction of political parties, which were private organizations.³

Wisconsin was not a leader in the early movement toward increased government regulation of the party nominating process. There is little evidence that Wisconsin politicians resorted to corruption of the sort that triggered primary reform in other states. Several states enacted limited primary election systems in the 1860s and 1870s.⁴ A major advance came in the 1880s when the Australian ballot system was adopted by many states, including Wisconsin in 1889. Before this time political parties usually printed their own ballots and distributed them at the polls. Under the Australian system the government printed all party tickets on a single ballot, and thus gained the power to say which parties would appear on the ballot.⁵

Wisconsin enacted its first reform law in 1891, when the Legislature established a primary system for Milwaukee municipal elections. In 1899 the system was extended to all local elections throughout the state. The 1899 election law explicitly declared party caucuses illegal and forbade state election officials to place caucus nominees on the official ballot.⁶

The direct primary movement in Wisconsin. LaFollette first advocated a direct primary law for all state elections in 1897. However, he was not alone. When LaFollette was first elected governor in 1900, even the "Stalwart" or conservative faction of the Republican party agreed to a platform advocating a broad direct primary system as part of a compromise with LaFollette's supporters. Many Stalwarts were willing to accept a broad direct primary system if it was phased in gradually. The Democratic Party, which was very weak in Wisconsin during the Progressive era, did not play a significant role in the debate over the direct primary.⁷

In 1901 the Progressive-controlled Assembly passed a bill, authored by E. Ray Stevens of Madison, extending the direct primary to all county and state offices and congressional contests. The Stalwart-controlled State Senate refused to pass the Stevens bill, and instead passed a bill that extended the direct primary to county offices only and that would go into effect only if approved by the voters at a referendum. Ultimately the Assembly accepted the Senate's bill, only to see it vetoed by LaFollette.⁸ After LaFollette won reelection in 1902, the conservatives reluctantly acceded to the Stevens bill on condition that it be submitted to a referendum at the 1904 election. LaFollette agreed to this.⁹

The direct primary referendum quickly became the main issue of the 1904 election. LaFollette repeated his theme that the convention system allowed a small oligarchy of political professionals to control the Republican Party and with it the state, and that only through the direct primary could this misrule be destroyed. The Stalwarts, however, made some principled arguments in defense of the convention system. They contended that a direct primary system would enable individual politicians to build power free of the checks and balances that the parties provided. In the words of one leading Stalwart, "Party organization and party leaders disappear with party principles, and individuals take their places with organized personal followings bearing the motto, 'Anything to win,' as their most sacred principle. The discussion of real principles is lost in the public exchange of bitter personalities."¹⁰

The Stalwarts also made a vigorous effort to gain control of the 1904 Republican state convention and to deny LaFollette renomination for governor. LaFollette prevailed only because the Republican state central committee, which his supporters controlled, decided delegate challenges in his favor. The Stalwarts then held their own convention, nominated Samuel Cook of Neenah for governor, and petitioned the supreme court to certify Cook as the official Republican nominee.¹¹

The Houser case. A month before the election, the Wisconsin Supreme Court rejected the Stalwarts' petition and effectively ended the direct primary battle in State ex rel. Cook v. Houser (1904).¹² The court held that under state law, the Republican committee had virtually absolute power to administer the party's affairs and certify its candidates. In a concurring opinion, Justice John Winslow emphasized the court's reluctance to interfere with internal party affairs:

"When doubt or dispute arises as to what the voice of the party really is, why is it not reasonable to let the party, through its chief governing body, decide the dispute, rather than turn the question over to the courts? Certainly, if real injustice and wrong be committed, the great body of the electorate may ultimately be relied on to correct it ..."¹³

The Stalwarts' campaign against LaFollette and the direct primary collapsed after the decision was issued. LaFollette easily won reelection, and the voters approved the direct primary law by a 62 percent-38 percent margin.¹⁴

Perhaps chastened by the Houser case, the Stalwarts were slow to challenge the constitutionality of the direct primary law. The law finally came before the supreme court in State ex rel. Van Alstine v. Frear (1910).¹⁵ The court held that the primary system did not violate voters' right of freedom of assembly under the state constitution: the constitution did not recognize any particular system of nominating candidates for office, therefore the Legislature had the power to create and control any such system.¹⁶

The supreme court's contribution to the decline of political parties in Wisconsin. Despite the bow that the supreme court made in the Houser case to the autonomy of political parties, the court's decisions during the latter part of the Progressive era confirmed the Stalwarts' fears that the 1903 primary law and subsequent refinements to it would erode the role of parties in Wisconsin's political life.¹⁷ In State ex rel. McGrael v. Phelps (1910)¹⁸ the court upheld a 1909 law that provided that a party whose total vote in a primary fell below a certain threshold was not entitled to a column on the official ballot for that general election; instead, its candidates would be listed as independents.¹⁹

Justice Roujet Marshall, writing for the majority, confessed that he was troubled by the fact that the law could operate to exclude even a well-established party-in this case, the Milwaukee County Democratic Party-from the ballot. However, he held that the law was reasonably calculated to stimulate interest in voting and to preserve the integrity of established parties while allowing the formation of new parties that arose to meet changing conditions. He held that the law was not "so manifestly destructive of party integrity and individual rights to efficiently participate in collective political effort, as to be fatal to its validity," although it came uncomfortably close to that line.²⁰

Chief Justice Winslow, who dissented, was particularly upset by the majority's assumption that a party's candidates were protected by being put on the ballot as independent candidates. He argued that "the right to vote means the right to vote effectively, not merely to cast a ballot under circumstances where it is certain that it can have no practical effect." He suggested that the law at issue should be called "An act to ensure the gradual extinction of all minority parties."²¹

The court made its decreasing concern for the welfare of political parties as institutions particularly clear in State ex rel. Binner v. Buer (1921)²² and State ex rel. Bentley v. Hall (1922).²³ In Binner it upheld a 1912 law that made all municipal elections nonpartisan. The court concluded that the perceived need for strong parties had decreased since the Phelps case was decided, and it flatly stated that parties were not entitled to special protection under the state constitution or state law. It used similar language in Bentley in upholding a modified version of the law challenged in Phelps.

The civil service law

Government employment in Wisconsin before LaFollette. Unlike the primary system, Wisconsin's civil service system was purely a creation of the Progressive era and did not have any 19th century antecedents. In the 19th century most people did not view government employment as a career. Almost all government jobs were held at the pleasure of the officials who filled the jobs, either as a matter of practice or of statutory mandate. Occasionally a particularly valuable employee would survive changes of administration, but in general Wisconsin officials were not shy about filling available posts with supporters provided that those supporters were reasonably able to do the job in question.²⁴

The civil service reform movement in America began at the federal level in 1865 and culminated in 1883 in the passage of the Pendleton Act, which created a limited merit-based civil service system with tenure for qualified employees regardless of political affiliation.²⁵ The civil service reform movement began at the state level when the New York Civil Service Reform Association was founded in 1877. The Reform Association soon established chapters in many large cities, including one in Milwaukee. The association created a model state civil service bill based on the Pendleton Act, and it induced New York and Massachusetts to adopt the first state civil service systems in 1883 and 1884 respectively. However, the movement then stagnated for 20 years. Several bills promoting civil service reform were introduced in the Wisconsin Legislature in the 1880s but did not pass.²⁶

The creation of Wisconsin's civil service system. LaFollette did not push for civil service reform as part of his program until after the 1904 election. One historian has suggested that LaFollette promoted civil service partly in order to atone for his free use of government patronage to strengthen his forces during the early struggle with the Stalwarts. Others, including the author of the civil service bill, suggest that he may have viewed the creation of a permanent corps of government officials, who would continue in office even after LaFollette departed, as essential to the long-term preservation of his reforms. A third theory is that through civil service reform, LaFollette simply "sought to carry his demand for efficient state administration to its logical conclusion."²⁷ Probably each of these reasons played some part in his actions.

In early 1905 LaFollette asked John R. Commons, a professor of economics and political science at the University of Wisconsin and a pioneer of social research, to prepare a civil service bill for introduction in the Legislature. Commons drafted a bill that was modeled largely on New York's civil service law.²⁸ The bill provided that with limited exceptions, all government employees would be hired on the basis of competitive examinations. They could only be discharged for "just cause, which shall not be religious or political." The bill was unusual in that it contained no grandfathering provisions for current state employees: most of them were required to take noncompetitive examinations as a condition of retaining their jobs. The bill also established a permanent civil service commission to oversee and administer the civil service system.

The Commons bill generated surprisingly little controversy in the Legislature and was enacted with no significant changes.²⁹ No immediate effort was made to challenge the law; it finally came before the supreme court in State ex rel. Buell v. Frear (1911).³⁰ The main argument made against the law was that it constituted an impermissible delegation of legislative powers, and accordingly the Buell case became Wisconsin's first major decision in the field of administrative law. The court concluded that the commission's power to establish classes of employees exempt from civil service rules and to place particular types of jobs in different civil service categories was not legislative: it was merely the power to make findings of fact to which the Legislature's guidelines would then be applied. The court also rejected the argument that the law impermissibly deprived the state officials in whom final appointment power was vested from choosing their appointees: it held that the law's requirement that the commission present three acceptable candidates for each position was adequate to meet this criticism.³¹

The Ekern case: Use of the common law to support civil service reform. Two years later, in Ekern v. McGovern (1913), the court made an innovative use of the common law to strengthen the civil service concept in Wisconsin.³² In early 1913 Gov. Francis McGovern charged Insurance Commissioner Herman Ekern with actively campaigning for a candidate for speaker of the Assembly and removed him from office. Ekern challenged his dismissal, and the supreme court sustained the challenge.

At the time, Wisconsin law provided that the governor could remove the insurance commissioner "upon satisfactory proof" for misconduct or neglect of duty. The court rejected McGovern's argument that he could dismiss Ekern based on any proof satisfactory to him. It agreed that the Legislature had the power to give government officials absolute discretion to dismiss government employees, but it indicated that where the Legislature requires "proof" or "cause" for removal, the employee has a property right in his office and he must be afforded procedural due process, including notice of the charges against him and a full hearing, before being dismissed. The court was well aware that it was in effect extending the civil service system to most high level, policy-making positions in state government:

"A system of government, largely by commissions with membership ... composed of men of high character and special attainments, has been developed. A maximum of special knowledge on the part of the incumbents is required, with a minimum of political interference, if the complicated system is to have any fair opportunity to attain somewhere near to the ideal of efficiency its originators designed to accomplish, and all hoped for."³³

Chief Justice Winslow and Justice John Barnes dissented. They criticized the court's holding that a government employee has a property right to his office and contended that the statute, fairly interpreted, gave the governor absolute discretion to remove the insurance commissioner. Winslow characterized the decision as "a step backward" and argued that it created a "danger ... that the responsible head of a governmental department will not have authority enough over his working force to perform the duties which the people have placed upon him and for the performance of which he is directly responsible."³⁴

The Legislative Reference Bureau

One Progressive innovation that was not considered particularly important at the time it was made, but which ultimately became a key part of the "good government" movement, was the establishment of the Legislative Reference Library. During the 19th century legislators either drafted their own bills or sought help from Madison attorneys and lobbyists who specialized in bill drafting. The only source of research materials readily available to them was a small collection in the state library. In 1901 the Legislature authorized the state free library commission to establish a new legislative library in the State Capitol. The commission appointed Charles McCarthy, who recently had received his Ph.D. degree from the University of Wisconsin, to take charge of the library.³⁵

During the next few years, McCarthy's energy and the Progressives' need for information to fuel the engine of reform resulted in an expansion of the library well beyond what the Legislature originally envisioned. (See accompanying sidebar.) McCarthy compiled information from sources throughout the United States about the social conditions that the Legislature was trying to change, including legislation proposed and enacted in other states. He was not content merely to be a servant of the Legislature: he and his staff took an active part in drafting bills, and in fact they had a hand in preparing virtually every major piece of progressive legislation. Many other states created reference libraries modeled on Wisconsin's and hired members of McCarthy's staff to direct them.³⁶

Joseph A. Ranney, Yale 1978, is a trial lawyer with DeWitt Ross & Stevens S.C., Madison. He is the author of several articles on legal and historical topics.

McCarthy was loyal to the Legislature above all else. He saw it and the laws it passed as the highest and most direct embodiment of the people's will, and he viewed the governor's office and the courts as posing an ever-present threat to the Legislature's mission. McCarthy particularly was concerned about the tendency of the U.S. Supreme Court and courts in other states to overturn Progressive laws on substantive due process grounds; to him, this was "the abomination of desolation, the destruction of representative government."³⁷ Although McCarthy was not a lawyer, he and his staff reviewed case reports and legal literature extensively to try to draft bills that would pass constitutional muster. This was one reason why the Wisconsin Supreme Court ultimately struck down very few major pieces of reform legislation.

Conclusion

The central question which the "good government" component of the Progressive movement posed for Wisconsin's legal system was: what role should political parties play in Wisconsin's government? Should they continue to be the main medium through which issues were identified and decided, or should individual candidates and issue-oriented movements take over that role? In Wisconsin, the direct primary became the battleground on which this question was decided. The idea of the direct primary did not originate in Wisconsin, but as a result of LaFollette's efforts Wisconsin's voters were the first in the nation to be convinced that open primaries, not party conventions, should be used to select candidates at all levels. It is ironic that it was the Houser case-the last great supreme court opinion affirming the right of parties to control their internal affairs-that enabled LaFollette to carry his position.

The Progressives' rout of the Stalwarts in 1904 made the task of completing reform through a civil service system much easier than it otherwise might have been. The role of the Wisconsin Supreme Court in completing reform, although little noted by history, was important. Not only did the court uphold the direct primary law and the civil service law but also it went out of its way in several cases-all decided well after the good government phase of the Progressive movement had been completed-to affirm that the era of political parties as major independent players in Wisconsin's governmental system and as dispensers of government employment had passed. The Phelps and Ekern cases in particular demonstrate that the court was not just an arbiter of the "good government" phase of the Progressive movement, but an active contributor to it. The Stalwarts and Chief Justice Winslow made a spirited and principled defense of parties and of the old Jacksonian system, but the Progressives and the times overcame them.

Endnotes

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¹ Two good histories of the Progressive era in Wisconsin, both of which include a survey of the major laws enacted during the period, are R.S. Maxwell, LaFollette and the Rise of the Progressives in Wisconsin (Madison, 1956) and H.F. Margulies, The Decline of the Progressive Movement in Wisconsin, 1890-1920 (Madison, 1968).

² The Jacksonians developed the convention system about 1830. They viewed party conventions as being more democratic than the nominating caucuses of legislators and local officeholders that had prevailed prior to that time, because conventions were more suited to participation by the rank and file. C.E. Merriam and L. Overacker, Primary Elections (Chicago, 1928), 1-5.

³ Id. at 24-25.

⁴ In 1866 California and New York became the first states to enact primary laws. By 1890 about half of the states had some sort of primary law. However, none of the states had a mandatory primary law that applied to elections throughout the state. Merriam and Overacker, Primary Elections, 8-22.

⁵ L. 1889, cc. 248, 494. The first state to adopt the Australian ballot was Massachusetts, in 1888. Merriam and Overacker, Primary Elections, 23.

⁶ L. 1893, c. 249; L. 1895, c. 288; L. 1899, c. 341. The Wisconsin Supreme Court softened the effect of the 1899 law by holding, in State ex rel. Hunt v. Stafford, 120 Wis. 203, 97 N.W. 921 (1902), that the law should not be read to ban caucuses outright and that even where a candidate was not nominated properly under the law, if his selection clearly represented the will of the voters he would be placed on the ballot. The Stafford case involved an unusual situation where Adams County Democrats, who had not functioned as a viable party in the county for some years, managed to convene a meeting in 1902 and chose a candidate for sheriff who was successful in the general election.

⁷ Maxwell, LaFollette and the Rise of the Progressives, 22-24; E.L. Philipp, Political Reform in Wisconsin (Milwaukee, 1910), 25-29; L. Epstein, Politics in Wisconsin (Madison, 1958), 37.

⁸ Maxwell, LaFollette and the Rise of the Progressives, 31-35.

⁹ Id. at 47-50.

¹⁰ Philipp, Political Reform in Wisconsin, 84. The Stalwarts also noted that campaign spending was higher in primary contests than in convention contests, and that this would make it difficult for candidates of modest means to compete. Id. at 86-88. Sen. Spooner voiced similar concerns, and predicted that the direct primary "would destroy the party machinery ... and would build up a lot of personal machines, would make every man a self-seeker, [and] would degrade politics by turning candidacies into bitter personal wrangles." D.G. Fowler, John Coit Spooner (New York, 1961), 299-300.

¹¹ Maxwell, LaFollette and the Rise of the Progressives, 66-72.

¹² 122 Wis. 534, 100 N.W. 964 (1904). Chief Justice John Cassoday dissented from the decision; Justice Robert Siebecker, who was LaFollette's brother-in-law, did not participate.

¹³ 122 Wis. at 601.

¹⁴ Wisconsin was the third state to enact a statewide primary law: it was preceded by Minnesota in 1901 and Mississippi in 1902. However, Wisconsin's law was the first one that provided for comprehensive administration of a statewide primary system by government officials. The Minnesota and Mississippi laws by their terms were to be implemented mainly by party officials. Merriam and Overacker, Primary Elections, 62-63.

¹⁵ 142 Wis. 320, 125 N.W. 961 (1910).

¹⁶ 142 Wis. at 342. The Stalwarts also challenged the "open" nature of the primary: they argued that by allowing any voter to vote in any party's primary, the law violated the rights of bona fide party supporters to equal protection of the laws. The court rejected this argument: it was skeptical that voters of one party would cross over to another party's primary in any significant numbers, and it held that in any event this argument was a political objection to the law, not a legal one. Id. at 341-42. Six other states enacted open primary laws during the Progressive era, but all of them except Wisconsin and Montana had repealed the open primary by 1927. Merriam and Overacker, Primary Elections, 69, 74.

¹⁷ In 1905 the Legislature extended the direct primary to apply to the selection of delegates to presidential nominating conventions. L. 1905, c. 369. However, the Progressives also had some setbacks. In 1911 they enacted a "Mary Ann" voting system, allowing voters to vote for second-choice candidates in primaries and providing that those votes would be counted if no candidate received a majority, in order to minimize the risk that competing Progressive candidates would split the Progressive vote to the benefit of Stalwart candidates. The law turned out not to work, and it was repealed in 1915. L. 1911, c. 200; L. 1915, c. 92.

¹⁸ 144 Wis. 1, 128 N.W. 1041 (1910).

¹⁹ L. 1909, c. 477.

²⁰ 144 Wis. at 27.

²¹ 144 Wis. at 52, 55. Justice William Timlin also dissented.

²² 174 Wis. 120, 182 N.W. 855 (1921).

²³ 178 Wis. 172, 190 N.W. 457 (1922).

²⁴ Part of the Jacksonian movement's legacy to Wisconsin was a distrust of the ethic, prevalent before Jackson's presidency, that government service should be left to persons of fit character, which in early America meant a small, elite group of educated planters and merchants. The Jacksonians believed that government office should be open to all able persons, and that ability should be measured by practical ability and party loyalty more than educational and social status. F.C. Mosher, Democracy and the Public Service (New York, 1968), 55-63.

²⁵ See generally A. Hoogenboom, Outlawing the Spoils: A History of the Civil Service Reform Movement, 1865-1883 (Urbana, Ill., 1961).

²⁶ Id. at 260. However, in 1885 Milwaukee established a civil service system for its police and fire departments which proved to be workable and effective.

²⁷ Maxwell, LaFollette and the Rise of the Progressives, 81, 144; J.R. Commons, Myself: The Autobiography of John R. Commons (New York, 1934; reprint, Madison, 1963), 101-06. Commons, who helped author several of the Progressives' major pieces of reform legislation, considered the 1905 civil service law to be "the greatest service LaFollette rendered to the people of the state" because it gave the public confidence that the Progressives' new laws would be administered impartially and enabled those laws to survive subsequent changes of administration. Commons, Myself, 105.

²⁸ See discussion of the history of the bill in State ex rel. Buell v. Frear, 146 Wis. 291, 293, 131 N.W. 832 (1911).

²⁹ L. 1905, c. 363.

³⁰ 146 Wis. 291, 131 N.W. 832 (1911).

³¹ 146 Wis. at 301-07. The court also held that the creating of different job categories and different examination standards for each category did not violate the equal protection rights of potential government employees. Id. at 304-05.

³² 154 Wis. 157, 142 N.W. 595 (1913).

³³ 154 Wis. at 236-37.

³⁴ 154 Wis. at 319.

³⁵ L. 1901, c. 168.

³⁶ Maxwell, LaFollette and the Rise of the Progressives in Wisconsin, 140-46; E.A. Fitzpatrick, McCarthy of Wisconsin (New York, 1944), 41-139. New York became the first state to create a legislative library, in 1891. However, during its early years the New York library did little more than collect state legal documents and publish periodic bulletins for its Legislature. The Wisconsin library was the first in the United States to provide a comprehensive research and bill drafting service. Fitzpatrick, McCarthy of Wisconsin, 47-48.

³⁷ Fitzpatrick, McCarthy of Wisconsin, 135.

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