The Last Time They Came for a Socialist in Congress

https://tadstoermer.substack.com/p/the-last-time-they-came-for-a-socialist

Republicans and many Democrats have finally found something to agree on: socialist candidates are a threat to the country. They’re echoing each other on it, on the talking head shows and through their social media influencer allies, and everyone keeps reminding us that we’re at war with somebody.

The American political establishment has gone after socialist candidates for Congress before, and it went all the way — to refusing to seat a man his voters kept electing. It’s worth knowing how that went. For everybody involved.

Victor Berger was born to a Jewish family in Austria in 1860, educated in Vienna, and landed in Connecticut at eighteen. A few years later he settled in Milwaukee and started his American life as a teacher in the public schools, which is about as sinister an origin story as resistance history can manage. He embraced socialism, got into labor politics, and bought a newspaper in 1892. He added a weekly in 1901, then the daily Milwaukee Leader in 1911.

So what was his socialism? The word is doing a lot of work right now, and it did a lot of work in our history, as people wielding it as an accusation can’t tell what Berger, much less modern American socialists, actually believed.

Berger came up inside the intellectual world of European Social Democracy — Marx read through revisionists, who had looked at the actual condition of European workers and concluded that capitalism wasn’t going to collapse on schedule, and that the road to socialism ran through the ballot box, the trade union, and the patient capture of democratic institutions rather than through the barricade.

Evolution, not revolution.

When Berger landed in Milwaukee, he found the one place in the country where that politics had a natural home. His socialism was the socialism of the Milwaukee machinist who wanted a shorter day, a pension, honest government, and a park to take his kids to on Sunday. Public ownership of the utilities. Municipal services that worked. Berger said socialism would come step by step, and he meant it so literally that the revolutionary wing of his own movement sneered at him and his kind as “Slowcialists.” And he couldn’t have cared less about the labels. When his colleagues’ obsession with parks and functioning sanitation later earned them the name “Sewer Socialists.” They would have taken that at the time as a job description.

His connection with Eugene Debs starts, as a lot of resistance history stories seem to, in a jail cell. In 1895, Debs was serving six months for his role leading the Pullman strike. He was a labor man, a union man, but not yet a socialist. Berger went to visit him. According to Debs, Berger delivered the first real socialist argument he’d ever heard, and left behind Marx’s Capital. Debs, already leaning in that direction, walked out of jail fully converted to socialism, and the two of them spent the next few years assembling the fragments of American radicalism into a party: the Social Democratic Party in 1898, then the merger that produced the Socialist Party of America in 1901.

The division of labor between them tells you everything about how the movement worked. Debs was the voice — the evangelist who ran for president five times and could fill any hall in the country. Berger was the machine — the organizer who understood the particular nature of American political culture and set himself the task of building socialism into an organized, effective, boringly functional American political movement. Real resistance fashion: not top down, or bottom up, but bottom across. Patient local organizing, alliances among the unions, the party, and his newspapers. They fought, of course. Debs thought Berger too cautious, too municipal, too willing to trade the horizon for a sewer line.

And they also fought over the racism in Berger’s socialism — the man who wrote in 1907 that the United States “must remain a white man’s country” started on the wrong side of his own party’s fights over Asian exclusion, and worse than that on Black Americans. Hold that thought, because Berger moves, and does so measurably, by both word and deed. By the 1910s his paper was printing Black socialists’ letters ridiculing white supremacy; by the 1920s he was introducing anti-lynching bills; when he died, Milwaukee’s NAACP wrote an obituary celebrating him. But it took him decades to shed what most of white America never shed at all.

That alignment with American political culture, including its ugliest parts, is also part of why it was Berger’s Milwaukee, his Americanized socialism, not anyone’s revolution, that put socialists in office.

And it certainly did that. By 1904 Socialists held seats on the Common Council, the County Board, the state legislature. In 1910 they swept Milwaukee’s city government and sent Berger to the U.S. House of Representatives — the first Socialist ever to serve in Congress.

He won national attention for his pension bill and his labor work. And then, in April 1911, he introduced a constitutional amendment to abolish the United States Senate.

Understand the moment. The Senate was essentially the same prestigious private club that the Framers of 1787 intended it to be, appointed by state legislatures, drowning in charges of corruption, elitism, and total insulation from the people — the kind of record that inflames populist demands for reform. Proposals to change it had floated since 1826, some even passing the House, and every one died in the Senate, for reasons you can work out yourself. Berger’s resolution, H.J. Res. 79, read: “Whereas the Senate in particular has become an obstructive and useless body, a menace to the liberties of the people, and an obstacle to social growth... All legislative powers shall be vested in the House of Representatives.” No Senate. No veto. No judicial invalidation. “The Senate has run its course,” he said. “It must some day, as with the British House of Lords, yield to the popular demand for its reformation or abolition.”

By 1911, the work Berger, William Jennings Bryan, and legions of progressives across the country had done effectively compelled Senators to search for a compromise or risk losing everything. On the table had been the twin towers of resistance rights: alter or abolish. Direct election passed the House with an overwhelming supermajority. The Senate was holding out. With Berger leading the way on the most forthright fix — erase the Senate and vest all power in the body directly accountable to the people — cover was given to those who could now advocate abolishing legislative appointment as the moderate, compromise position, and Senators reached for it.

Frightened by Berger — and the broader, credible threat of what a constitutional convention of the people might do — the Senate yielded to the popular demand for its reformation, exactly as Berger said it would have to. That is what the abolish flank is for. The Senate hadn’t been persuaded; it had been compelled. That’s what American resistance does. Once Congress sent it to the states, ratification took less than a year — nearly record time.

Berger lost his seat in 1912 and went back to running the paper and the party. Then came World War I, and with it the establishment’s opening to strike back.

Berger and his party opposed American entry into the war. In 1917, the Socialists demanded “resistance to compulsory military training and to the conscription of life and labor” and “repudiation of war debts.” Translate that: no one drafted to fight an unjust war, and no taxpayer dollars rewarding the people who bankrolled it — a demand aimed squarely at the industrialists who’d happily wage a war knowing Congress would finance it and pay them. For publishing that position in the Leader, the Postmaster General of the United States barred the paper from being able to use the second-class mail to send it to subscribers in 1917. Berger appealed and lost. The Supreme Court upheld the ban, in a decision some historians call a low point for freedom of speech in America.

Then federal prosecutors indicted Berger and four other Socialist Party leaders under the Espionage Act — 26 “disloyal acts,” conspiracy to obstruct the war effort. The evidence was not just editorial content, but speeches, flyers, and pamphlets. That was the government’s whole theory: antiwar arguments were themselves obstruction of recruitment. A jury convicted in January 1919, and Judge Kenesaw Mountain Landis sentenced them to twenty years in federal prison.

If the Prairieland sentences have been on your mind lately, you’re in the right space.

But here’s what voters did while the federal government was doing all that: They promoted him. Berger came close to winning a special election to the U.S. Senate in April 1918, then won his old House seat that November — while he was under indictment. Convicted in January, free on bail during his appeal, he went to Washington to take office.

The House wouldn’t let him. Pulling on the precedent of 1865 (that I cover in Chapter 9 of my book), when the Radical Republicans denied the returning rebel states their seats, Speaker Frederick Gillett declined to recognize Berger when the 66th Congress convened in May 1919, and the House sent the question to a special committee. The committee reached for Section 3 of the 14th Amendment — the disqualification clause for those who, having taken an oath to support the Constitution, engaged in insurrection or rebellion or gave “aid or comfort” to enemies. Berger had taken that oath as a previously elected member of the House. That was all the clause needed. The committee treated his antiwar editorials as aid and comfort to Germany, and Section 3 as a live disqualification tool against a member-elect.

And notice what they did not rely on: the conviction. They decided to review the evidence independently and decided for themselves whether Berger had violated the Espionage Act, given aid or comfort, and become constitutionally ineligible, expanding their remit to Berger’s entire record. They ran the case essentially as a prosecution of the Socialist Party’s position on the war, with Berger at the top of the party. Their conclusion was total — Berger had engaged in “a conscious, deliberate and continuing purpose and intent to obstruct, hinder, and embarrass the Government of the United States in the prosecution of the war and thus to give aid and comfort to the enemies of our country.” Follow the equation. Opposition equals obstruction, obstruction becomes aid to America's enemies, aid to enemies becomes sedition, sedition equals disqualification under the 14th Amendment.

Berger’s lawyers argued the amendment was a Civil War instrument that couldn’t reach him. The committee’s answer deserves our full attention. They conceded that “the entire fourteenth amendment was the child of the Civil War and that its main purpose was the security and protection of the political and civil rights of the African race” — but then, citing Yick Wo v. Hopkins, declared that its provisions were “for all time.” One sentence acknowledging the Black freedom struggle that made the amendment. The next, twisted to other ends, aiming the repurposed clause at an immigrant socialist. And what counted as aid and comfort? In the committee’s words: “aid and comfort may be given to an enemy, by words of encouragement, or the expression of an opinion from one occupying an influential position.” In a previous case, used as precedent by the committee, the only evidence supporting the disloyalty charge was a letter someone wrote to a newspaper.

Imagine what they would have done with social media.

On November 10, 1919, the House voted to exclude him. The single vote against came from Edward Voigt, also of Wisconsin. The brand-new American Legion called for Berger to be deported and his citizenship revoked. The people of Milwaukee rallied to him instead: in the special election the following month they sent him right back with an even greater majority. When he presented himself in January 1920, the House excluded him a second time. The seat stayed vacant for the rest of the Congress. Wisconsin’s 5th District effectively went unrepresented because its voters kept choosing someone the House refused to seat.

The House of Representatives’ Office of the Historian today softens all of this to “an ongoing legal battle relating to his antiwar positions.” The historians always get to bury the history they don’t like.

The conviction, meanwhile, collapsed. Before trial, Berger’s lawyers had moved to disqualify Landis, citing his remarks that German-Americans’ hearts were “reeking with disloyalty.” Landis refused to step aside and tried the case anyway. In Berger v. United States, the Supreme Court held 6–3 that once the charge of prejudice was filed, Landis had no authority to sit in judgment on his own impartiality — the statute required him to hand the case off. Conviction reversed and remanded. Not because the speech was protected. Because a biased judge tried it, and even that Court couldn’t swallow a judge ruling on his own bias.

Convictions reversed, Berger won re-election to Congress in 1922, 1924, and 1926 — seated without a fight by the same institution that had twice declared him disqualified. He spent those final terms on civil liberties, unemployment insurance, old-age pensions, anti-lynching legislation, and the repeal of Prohibition. He lost in 1928 and died the next year in a streetcar accident.

Before we get to what he built, know that the weapon they used on him is still loaded. The Supreme Court later addressed the House’s power to exclude members, most notably in Powell v. McCormack — but that case fell on whether the House had invented an exclusion outside the Constitution, and it expressly distinguished Berger’s case. Berger had been excluded on a constitutional provision, Section 3 of the 14th Amendment, which the Court wouldn’t touch.

Now spin it forward. In 2023, the Colorado Supreme Court held Trump disqualified from the presidency under Section 3, concluding that the evidence — the great bulk of it undisputed at trial — established that he engaged in insurrection. Trump took that to this Supreme Court, which held that the Constitution makes Congress, rather than the states, responsible for enforcing Section 3 against federal officeholders and candidates. The Court conspicuously never touched the factual finding that Trump engaged in insurrection. So the finding sits there, and so does the clause, very much alive.

Berger’s case remains the only congressional application of Section 3 outside the Reconstruction context, and the House found it robust and eternal when aimed at a socialist. Which begs a question: with both parties charging today’s socialist candidates with being a threat to the country, and everyone insisting we’re at war, what happens when a new Congress convenes in January with more socialists than at any point in American history? We should probably check whether any of them have ever taken an oath.

As for what the establishment was actually trying to keep out of the Capitol building in 1919, take the resistance history lesson, because Berger’s story teaches it almost whole.

American resistance compels what it cannot persuade. Eighty-five years of polite Senate reform, acting patiently through the permitted channels, died in the Senate. What made the Senators of 1911 respond was Berger and the movement behind him forcing the choice between alter or abolish — constitutional conventions of the people credible enough to fear, extinction in writing on the House floor. You vote for your Senators today because of that. The 17th Amendment is his fingerprint on the Constitution itself, largely forgotten now except by the modern Senators who want to repeal it, who apparently remember exactly whose victory it was.

That’s the first part of the lesson, and it’s the standing answer to everyone who treats the left flank of a coalition as a liability: the most forthright position is what makes the moderate position winnable. So don’t start in the middle and settle for even less.

The second part is what the establishment does when the resistance works. It doesn’t concede the argument. It waits for conditions — a war will do — that let it reclassify resistance as treason. It couldn’t beat Berger at the polls; Milwaukee kept promoting him through the mail ban, the indictment, the conviction. So it moved the fight to ground where voters don’t get a say: the Post Office, the courtroom, the credentials of the House itself, and finally the Second Republic’s own disqualification clause in the 14th Amendment, turned from the refounding it was written to protect toward an immigrant socialist whose offense was opposing the industrialists’ war. Convert the political challenge into a loyalty crime, and let the machinery built for yesterday’s insurrectionists process today’s dissenters.

And the third: exclusion doesn’t work. Not against organization — the voters kept electing Berger because he’d spent twenty years building what repression can’t reach, bottom across, the unions, the party, the papers. And not against the program. The House kept the man out of the building for one Congress. It couldn’t keep out the causes he and the Socialist Party pressed — votes for women, pensions and workers’ compensation, reforestation, the eight-hour day, an end to racial terror, limits on child labor, unemployment insurance — which became part of our baseline expectations of what a responsible government provides for its citizens, many at the heart of the New Deal. The establishment lost everything except the vote count.

That’s what Berger was doing, and that’s what the House voted to exclude in 1919. It clearly seems to be what the establishment in both parties wants to exclude now.