The Last Time the 14th Amendment Insurrection Provision Was Used to Bar Someone from US Elected Office

by | Dec 30, 2023

The effort by the Colorado Supreme Court and the Maine Secretary of State to, in their respective states, keep Trump off the presidential race ballot in the name of enforcing the “insurrection provision” of the 14th Amendment of the United States Constitution is an atrocious abuse of power. So too was the last time the provision was used as a reason to bar an individual from holding an elected office in the United States government.

A little over a hundred years ago, Victor Berger was twice barred from joining the US House of Representatives after winning election to that office. Why? Eric Boehm, tells the story in a Friday Reason article:

Berger was born in Austria and immigrated to the United States as a young man. In 1910, he won a seat in Congress representing Milwaukee, Wisconsin, and served a single two-year term. After being defeated in 1912, Berger remained active in left-wing politics and opposed America’s entry into the First World War. In 1918, he was convicted (along with several other Socialist organizers) of having violated the Espionage Act of 1917, which effectively criminalized any criticism of the war effort.

Officially, Berger was found guilty of 26 “disloyal acts” related to a series of editorials published by the Milwaukee Leader, a paper Berger helped run, arguing against America’s involvement in the war.

Despite that conviction—or perhaps because of it—Berger was elected to Congress again in 1918. His campaign called for the country to respect free speech and freedom of the press, and he continued to push for an “early, general, lasting and democratic peace.” (Naturally, he also campaigned for a variety of typically terrible Socialist ideas too, like the nationalization of industries.)

Here’s where Section 3 of the 14th Amendment popped up. Congress refused to seat Berger when he showed up to work in January 1919, on the grounds that his Espionage Act conviction was tantamount to engaging in insurrection against the country. The vote was nearly unanimous, 311-1, with the lone dissenting vote cast by a Wisconsin Republican.

A special election was held in December 1919 to fill the still-vacant seat, and Berger won again—this time earning even more votes than he had a year earlier. Again, a majority in Congress voted to block Berger from taking his seat.

After his conviction was then thrown out by the US Supreme Court due to his trial judge’s prejudice preventing a fair trial, Boehm relates that Berger was elected in 1922 to the US House and “seated without controversy” before being reelected in 1924 and 1926.

Read Boehm’s complete article here.

Notably, no court or state election official kept Berger from running for office. The only barrier came from the House that has a history of exercising a broader discretion over its membership. This broader discretion is suggested by Article I Section 5 provisions stating that the US House and US Senate shall each “be the Judge of the Elections, Returns and Qualifications of its Own Members” and may, “with the Concurrence of two-thirds, expel a Member.”

Author

  • Adam Dick

    Adam worked from 2003 through 2013 as a legislative aide for Rep. Ron Paul. Previously, he was a member of the Wisconsin State Board of Elections, a co-manager of Ed Thompson's 2002 Wisconsin governor campaign, and a lawyer in New York and Connecticut.