Joe McCarthy Barred From Ballot in 1946

There is a serious case that both Joe McCarthy's unsuccessful candidacy for the US Senate in 1944 and his successful candidacy in 1946 were ilegal under the Wisconsin State Constitution. The relevant provision here is Article VII, Section 10 of the Wisconsin Constitution, which provided:

"Each of the judges of the Supreme and Circuit Courts . . . shall hold no office of public trust, except a judicial office, during the term for which they are respectively elected, and all votes for either of them for any office, except a judicial office, given by the legislature or the people, shall be void." https://books.google.com/books?id=BB9WAAAAMAAJ&pg=PA299

Taken literally, this prohibited McCarthy's candidacy for the Senate in both 1944 and 1946. His term as circuit judge would not expire until January 1952; and, said McCarthy's critics, he was ineligible to the US Senate or any other non-judicial public office until that time--*whether he resigned as judge or not.*

The Wisconsin Supreme Court has summarized the litigation inspired by that argument:

"¶ 43 During the 1940s, this court twice revisited the language of Article VII, Section 10. Both cases, Wettengel v. Zimmerman, 249 Wis. 237, 24 N.W.2d 504 (1946) and State v. McCarthy, 255 Wis. 234, 38 N.W.2d 679 (1949), involved the election of Wisconsin circuit court judge Joseph R. McCarthy to a seat in the United States Senate. In Wettengel, 249 Wis. at 239-40, 24 N.W.2d 504, the petitioners sought to keep McCarthy's name off of the ballot, arguing that under Section 10, McCarthy, as a circuit court judge, was prohibited from holding an office such as that of United States Senator until his term expired in January 1952. Additionally, they argued that under the same provision, all votes cast for him were null and void. Id. at 240, 24 N.W.2d 504. This court, however, held that it had no jurisdiction to grant the petition sought, because the election was for federal office and controlled by the United States Constitution and solely within the realm of authority of the United States Senate. Id. at 247-48, 24 N.W.2d 504.

¶ 44 In 1949, we again dealt with Article VII, Section 10 when the Board of State Bar Commissioners filed a petition in the Wisconsin Supreme Court requesting that McCarthy be disciplined because he ran for office and was elected as a United States Senator without resigning and surrendering his office as a circuit judge. McCarthy, 255 Wis. at 238, 38 N.W.2d 679. In that case, we held that McCarthy violated the constitution and laws of the State of Wisconsin by conduct in “clear disregard of the provisions of sec. 10, art. VII, Const., and sec. 256.02(2) Stats.” Id. at 242, 38 N.W.2d 679. We explicitly described the fault with McCarthy's actions:

In this case the defendant was not only a candidate for the office of United States senator but was a holder of that office during the term for which he was elected circuit judge, although he was not a holder of the office of circuit judge and United States senator contemporaneously."

http://caselaw.findlaw.com/wi-supreme-court/1457772.html

The decision in *State v. McCarthy* had little effect, however. Despite finding that McCarthy had violated the law, the Court dismissed the state Board of Bar Commissioners' petition for disciplinary action because the case was "one in a class by itself and unlikely to be repeated." McCarthy mockingly summarized the Court's judgment as "it was illegal--Joe was a naughty boy, but we don't think he'll do it again." http://books.google.com/books?id=ViXaw6NSkrYC&pg=PA28

I don't think that even if the court had decided on disciplinary action in *State v. McCarthy* it would have had much effect on McCarthy's political future. McCarthy was safely in the Senate by that time, he would clearly be legally entitled to run for re-election in 1952 (since the term for which he had been elected circuit judge would have expired by then), and he and his supporters would no doubt have said that the court's decision was "politically motivated." However, what *would* have made a difference would have been a different decision in *Wettengel v. Zimmerman*--one holding that the court did indeed have jurisdiction, and that it had as much right to bar him from running for the US Senate as for, say, the governorship.

My first thought was that the US Supreme Court might reverse the Wisconsin Supreme Court on this point on the rationale they later used in *US Term Limits, Inc. v. Thornton*, 514 US 779 (1995) https://www.law.cornell.edu/supct/html/93-1456.ZO.html --namely, that the qualifications for a US Senator or US Representative are set solely by the US Constitution, and that states have no right to add additional qualifications.

However, one cannot assume that the US Supreme Court in 1946 would necessarily reach the same conclusion it did in a 5-4 decision in 1995. Furthermore, even the majority opinion in *US Term Limits v. Thornton* would not necessarily prevent Wisconsin courts from barring McCarthy from the ballot, in light of *Clements v. Fashing*, 457 U.S. 957 (1982), http://caselaw.findlaw.com/us-supreme-court/457/957.html

To quote an analysis by one Wisconsin lawyer:

"Clements involved two provisions of the Texas Constitution, one of which prohibited judges from running for the state legislature until the expiration of the term to which they were elected, and the other required judges to resign if they ran for any other office, including the U.S. Congress.

"Four judges seeking to run for the Texas legislature challenged the provisions, but the U.S. Supreme Court upheld them. The court concluded that States have a valid interest in preventing judges from using their judicial positions as stepping stones to other office.

"None of the plaintiffs in Clements was seeking a U.S. congressional position, so the court only considered whether the laws impinged on the judges' right to run for office, rather than whether they imposed unconstitutional qualifications for serving in Congress.

"In Thornton, however, the court discussed Clements in the course of holding that states cannot impose term limits on its congressmen. There, the court referred to the provisions in Clements as a valid regulation of state office holders, not an imposition of additional qualifications for serving in Congress. Thornton, 514 U.S. at 835.

"Arguably, the same statement would be equally true were a Wisconsin judge to run for Congress before the expiration of his term.

"However, Clements can also be distinguished. The Texas provision did not prohibit any judge from running for Congress, but only required that he resign. The Wisconsin provision, by contrast, would prohibit any judge from running even if he did resign.

"Thus, applied to judges seeking to run for Congress, Article VII, Section 10 may still be unconstitutional, as the court held in Wettengel, notwithstanding Clements and Thornton." http://wislawjournal.com/2003/07/16/judges-case-analysis/

Anyway, let's say that the Wisconsin Supreme Court did bar McCarthy from the ballot in *Wettengel* and that the US Supreme Court did not reverse the Wisconsin Supreme Court. McCarthy then could not run for the Senate--or any other non-judicial public office, state or federal--until 1952. Could he have remained in the limelight sufficiently to still be a serious candidate in 1952? Consequences? "Young Bob" La Follette is almost certainly re-elected in 1946. The state's conservative GOP Establishment, the "Colemanites"--named after businessman and state Republican chairman Thomas E. Coleman http://madisonchspre1990obits.blogspot.com/2008/12/obituary-thomas-e-coleman-class-of-1910.html would no doubt have run some other candidate against La Follette; McCarthy had not been their first choice, but he had made it clear that he was gong to run whether they liked it or not, so they felt they had to support him. But it is very unlikely that anyone other than McCarthy would have defeated La Follette. McCarthy ran a whirlwind campaign, crisscrossing the state, handshaking his way through every barber shop, beauty parlor and tavern he could find. He projected an image of youth--like Harold Stassen (whom he backed for the presidency) he seemed a representative of the up-and-coming generation of World War II veterans. And yet with all that, he only beat Young Bob by 207,917 votes to 202,557 http://www.ourcampaigns.com/RaceDetail.html?RaceID=46920 As for the general election, La Follette, had he won the primary, would have easily won in that heavily Republican year against the Democrat Howard J. McMurray, who as a New Dealer and friend of Henry Wallace, was vulnerable to the charge of being too left-wing.

I had a series in soc.history.what-if on what if La Follette had defeated McCarthy http://madisonchspre1990obits.blogspot.com/2008/12/obituary-thomas-e-coleman-class-of-1910.html but in this scenario he would not even have to face McCarthy...
 
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If he is prevented from running the main difference will be the blacklisting and other pressures on alleged premature anti fascists and others will be in the name of that era or error.

It may last longer if its main spokesperson were not a ridiculous drunk
 
In our timeline, the misdeeds of McCarthy were used by Communists and their sympathizers to discredit any attempt to identify Communists as such. Thus, in a world in which there is no McCarthy in the Senate, it would be much easier to "call a spade a spade." This would have reduced, if only on the margin, the influence of the Far Left media, politics, and the universities. It would also have increased the chances that reports of the assassination of John F. Kennedy would have identified Lee Harvey Oswald as a Communist "wannabe."
 
It has always been a source of embarassment to me that Wisconsin has elected both the Tailgunner and William Proxmire. Any one that can figure this state out politically is either a genius or a soothsayer
 
It has always been a source of embarassment to me that Wisconsin has elected both the Tailgunner and William Proxmire. Any one that can figure this state out politically is either a genius or a soothsayer

What was wrong with Proxmire, apart from the Golden Fleece Awards?

teg
 
You can also envision a different career path for Roy Cohn. As he first made a name for himself as a prosecutor in the Rosenberg case, he would probably become a highly successful federal prosecutor with a ruthless and take no prisoners style.
 
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