A century after he represented Milwaukee in the U.S. House, Victor Berger is again part of a national debate over loyalty and patriotism.

Berger was a peace-loving Socialist who got kicked out of Congress twice for his nonviolent opposition to U.S. involvement in World War I. Now his case is being cited as a precedent, albeit a problematic one, in legal efforts to bar right-wing Republicans – from Wisconsin’s Sen. Ron Johnson to former President Donald Trump – from holding office because of their ties to the Capitol riot on Jan. 6, 2021.

All of those cases are based on the “disqualification clause” of the 14th Amendment to the U.S. Constitution. Until recently, that Reconstruction-era amendment was best known for its Section 1, which guarantees citizenship to everyone born in this country – including, at the time, formerly enslaved Black residents; ensures equal protection of the laws for everyone; and requires due process for anyone facing legal penalties.

Since the Jan. 6 uprising that sought to overturn Trump’s 2020 election defeat, however, more attention has focused on Section 3, aimed originally at former Confederate rebels. That section says that anyone who took an oath to uphold the Constitution and then “engaged in insurrection or rebellion … or (has) given aid or comfort to the enemies” of the nation is barred from state or federal office. Congress can grant exemptions, by a vote of two-thirds of each house.

The Lawfare blog has counted 10 federal, state and local officials nationwide – including three in Wisconsin – who have faced challenges under that clause related to the events of Jan. 6.

In March, 10 Wisconsin voters filed a federal lawsuit to disqualify Johnson and GOP Reps. Scott Fitzgerald and Tom Tiffany. The plaintiffs, backed by a political action committee led by Minocqua Brewing Co. owner Kirk Bangstad, accused the trio of inciting the insurrectionists by “spreading their malicious falsehoods about a ‘rigged election’ through regular and social media and at public appearances.” U.S. District Judge Lynn Adelman dismissed that suit on procedural grounds in June.

Procedural issues also were cited by the Arizona Supreme Court in dismissing three similar challenges, and the Indiana Election Commission dismissed another for lack of evidence. A New Mexico state judge is considering a challenge to “Cowboys for Trump” founder Cuoy Griffin, a county commissioner who was convicted of a federal misdemeanor for entering a restricted area during the insurrection.

(The Daily Beast has reported that photos show Derrick Van Orden, the GOP nominee for a southwestern Wisconsin congressional seat, also was inside the restricted area on Jan. 6. Van Orden has denied that. He has not been charged and his candidacy has not been challenged.)

To date, the most legally significant federal court rulings have come on two challenges – those against Republican Reps. Madison Cawthorn of North Carolina and Marjorie Taylor Greene of Georgia. Both are represented by prominent conservative lawyer James Bopp of Indiana.

Bopp has been involved in several high-profile Wisconsin cases. He represented then-Supreme Court Justice Michael Gableman after the spring 2008 election, when the rest of the high court deadlocked, 3-3, on whether its new member had violated judicial ethics by running a misleading and arguably racist campaign ad against his Black predecessor, former Justice Louis Butler.

After Trump’s 2020 loss, Bopp filed a lawsuit seeking to nullify every presidential vote cast in Milwaukee, Dane and Menominee counties, only to drop that suit a week later.

Most recently, Bopp has been representing Gableman in litigation stemming from the former justice’s now-terminated investigation into the 2020 election. Dane County Judge Frank Remington angrily threw Bopp and four other Gableman lawyers off one of those cases Aug. 17, accusing them of applying “phony legal principles to invented facts.”

In the Cawthorn and Greene cases, Bopp argued that the disqualification clause applied only to Civil War rebels, and that Congress canceled it out by adopting an amnesty law in 1872. Another law in 1898 expanded that amnesty.

And that’s where Berger comes in.

The Bernie Sanders of His Day

HISTORIAN JOHN GURDA describes Berger as “the godfather of Milwaukee Socialism,” the local leader of the movement that dominated the city’s politics for half a century. Berger, an Austrian immigrant, taught German in the Milwaukee Public Schools; founded the Milwaukee Leader, a Socialist newspaper; and came up with “the Milwaukee Idea” of using union members as foot soldiers in political campaigns, a tactic later embraced by the Democratic Party.

After serving briefly on the Common Council, Berger ran for a House seat in 1910. He became the first Socialist elected to Congress, advocating for national pensions, an early version of today’s Social Security.

“He was very much Bernie in those years,” Gurda says, referring to Vermont’s Sen. Bernie Sanders, a self-described democratic socialist elected as an independent. Unlike their counterparts around the country, Milwaukee’s Socialists continued to go by their original name of Social Democrats, Gurda notes.

Berger was more moderate than many other Socialists of his day, and he was unenthusiastic about the national party’s 1917 convention vote to oppose America’s entry in World War I and the resulting draft, Gurda says. Once the vote was taken, however, Berger maintained solidarity with his Socialist comrades by reprinting their manifesto and writing anti-war editorials in the Leader, denouncing the war as a benefit for big business at the expense of soldiers’ lives and workers’ priorities.

The Socialists’ anti-war stand cost the party much of its political support outside Milwaukee, Gurda says. And it came with legal consequences as well, as President Woodrow Wilson – who had been re-elected in 1916 under the slogan, “He kept us out of war” – led a crackdown on dissent.

“There was a hysterical campaign to root out German sympathizers,” Gurda says. “It was a witch hunt.”

Wielding the newly adopted Espionage and Sedition Acts, federal authorities revoked the Leader’s mailing permit and prosecuted Berger and other prominent Socialists for giving aid and comfort to the enemy.

Although Berger’s “crime” today likely would be considered permissible free speech, First Amendment law was not well-developed at the time, notes Gerard Magliocca, professor of law at Indiana University-Indianapolis and a leading expert on the disqualification clause. In fact, the Supreme Court was upholding two other Socialists’ Espionage Act convictions when it created the famous “shouting fire in a crowded theater” exception to the First Amendment.

While awaiting trial, Berger again ran for the congressional seat he had lost after one term, winning it back in 1918. Before he could take office, a Chicago jury found him and four others guilty of conspiring to violate the espionage law. U.S. District Judge Kenesaw Mountain Landis sentenced him to 20 years in prison, later remarking that he regretted he couldn’t legally “have Berger lined up against a wall and shot.”

Berger appealed his conviction, but the House speaker refused to seat him, citing the 14th Amendment’s disqualification clause, and named a special committee to review his case.

Like Cawthorn and Greene a century later, Berger argued the disqualification clause had been nullified by the Civil War amnesty laws.

But after almost a year of hearings, the committee dismissed his arguments, finding that no law could undo a constitutional amendment and that the amnesty applied only to former Confederates, not future insurrectionists. The full House voted, 311-1, to disqualify him, with only Sheboygan Republican Edward Voigt opposed.

In the special election to fill Berger’s seat, Milwaukee’s voters defiantly reelected him by an even wider margin, “very much insulted that Congress refused to seat their guy,” Gurda says. But the House again rejected Berger, and his seat remained vacant for the rest of that term.

The Supreme Court overturned Berger’s conviction in 1921, finding that Landis (by then the first commissioner of baseball) was biased against German-Americans, of whom he had said, “Their hearts are reeking with disloyalty.” Later that year, Congress repealed the Sedition Act, which had expanded the Espionage Act by adding restrictions on speech.

Berger mounted a successful comeback bid in 1922 and served three more terms in the House, with no further challenges to his qualifications. After losing his 1928 re-election campaign, he was hit by a streetcar and died in 1929, in what Gurda called “a brutal irony” for a public transit advocate who had long opposed the trolley system’s private ownership.

Echoes of History

ATTORNEYS AND JUDGES took note of the Berger precedent in both the Cawthorn and Greene cases, with differing results.

Lawyers for the North Carolina voters challenging Cawthorn’s eligibility first cited Berger in rebutting Bopp’s arguments. U.S. District Judge Richard Myers, a Trump appointee, ruled against them March 4, finding that the amnesty law invalidated that section of the amendment. That allowed Cawthorn to run in the May 17 GOP primary, which he lost.

But before the primary results were certified, the 4th Circuit Court of Appeals overturned Myers’ ruling. A three-judge panel, including one Trump appointee, unanimously rejected the amnesty argument, citing Berger’s case as one bit of evidence supporting its decision.

By then, Greene’s case had reached another federal court. U.S. District Judge Amy Totenberg, appointed by former President Barack Obama, also cited Berger’s case among the reasons she disagreed with Myers’ ruling in her April 18 order allowing the state-level proceedings against Greene to continue.

A state administrative law judge sided with Greene, finding insufficient evidence she participated in an insurrection. Georgia Secretary of State Brad Raffensperger quickly agreed, allowing Greene to compete in the May 24 Republican primary, which she won overwhelmingly.

But to Raffensperger’s bafflement, Greene still appealed to the 11th Circuit Court of Appeals, seeking to overturn the Georgia law that permitted the challenge. Her opponents, meanwhile, appealed to the Georgia Supreme Court. Neither court has ruled yet.

Berger’s case differs from the current cases because he wasn’t involved in an insurrection, say Magliocca and Howard Schweber, associate professor of political science and legal studies at UW-Madison.

Still, the Berger case is significant in that it provides evidence that the 1872 and 1898 amnesty laws didn’t invalidate the disqualification clause, Magliocca says.

In that sense, it could come up in a potential case against Trump. If Trump runs again for president, his candidacy would inevitably face legal challenges, some of them based on the disqualification clause, Maglicocca says. And if Trump tries to use the same arguments as Bopp, his opponents could cite Berger, Magliocca says.

But the courts also would have to determine whether the Jan. 6 riot constituted an insurrection – something not clearly defined in federal law – and the extent of Trump’s involvement, Schweber says. Rulings from state authorities and lower federal courts on those and other questions would likely differ and eventually reach the U.S. Supreme Court, Magliocca says.

Trump may have yet another connection to Berger.

The recent FBI raid that seized classified documents from Trump’s Mar-a-Lago home was part of an investigation into possible violations of the Espionage Act, according to the search warrant authorizing the raid. If Trump is ultimately charged with misusing national security information, he could be prosecuted under a different section of the same law that Berger was convicted of violating.

In response to the raid, Sen. Rand Paul (R-Ky.) referred indirectly to Berger when he tweeted that the Espionage Act should be repealed because it had been “abused from the beginning to jail dissenters of WWI.”

It was not clear if Paul knew that the provisions restricting speech had been repealed a century ago – or that Berger and so many of his fellow anti-war dissidents were Socialists diametrically opposed to Paul’s libertarian beliefs.

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