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Repealing National Prohibition
by David Kyvig
Copyright 1979 by the University of Chicago
Chapter 6 - From the Jaws of Defeat
In 1928, the year the Association Against the Prohibition Amendment reorganized, national prohibition became a major topic of political debate. The liquor issue loomed large in the presidential contest between the favorite of the drys, Herbert Hoover, and the hope of the wets, Alfred E. Smith. Smith's decisive loss in his quest for the White House represented another in a long series of defeats for antiprohibitionists, yet his candidacy began linking the Democratic party to the repeal cause. Perhaps most crucial, the man Smith selected to chair the Democratic National Committee for the next four years, John J. Raskob, belonged to the AAPA board of directors. By contrast, the campaign as well as the new administration's interpretation of the election results strengthened Republican support for prohibition. Partisan alignment on national prohibition, which would accelerate during Hoover's term and significantly influence repeal, began to take shape during 1928. The AAPA, determined to carry on, and cheered by signs of sympathy among Democratic leaders, quickly dispelled any discouragement it felt about the election returns and launched an aggressive offensive. The repeal movement steadily gathered momentum thereafter.
Prior to 1928 the prohibition issue had cut across party lines. Both parties counted convinced drys and ardent wets among their ranks. Almost equal numbers of Republicans and Democrats had voted for the Eighteenth Amendment when it won congressional approval in 1917. The Republicans, as the party in power after 1920, and therefore responsible for law enforcement, had gradually been taking on more of a prohibitionist cast, although not without objections from many of its most illustrious supporters. Meanwhile, the northern urban wing of the Democratic party opposed prohibition, while the southern and western element of the party favored it. The two branches had fought to a standstill in 1924. The AAPA, steadfastly nonpartisan, drew from both sides. Among its leaders, for instance, William Stayton, Charles Sabin, and Grayson Murphy were lifelong Democrats, while Henry Curran, Irenee and Pierre du Pont, James Wadsworth, and Henry Joy were equally devout Republicans. So long as the platforms and national candidates of both parties continued to skirt the prohibition question, as they had in 1920 and 1924, with pious statements about the need for law enforcement, no connection could be made between victory or defeat and a position on the alcohol ban. Once distinctions began to be drawn between the two, a process in which the AAPA played an important role, conclusions could be and were reached regarding the law's popularity. The affixing of a dry label on the Republicans and a wet label on the Democrats, despite continued division within each party, proved crucial. From 1928 on, a Republican electoral triumph came increasingly to be looked on as a renewed endorsement of prohibition, while a Democratic victory came to be regarded as a mandate for repeal.
In 1928 the prohibition debate erupted first at the Republican convention in Kansas City. Senator Reed Smoot's draft platform called for observance of the Constitution and all laws, but drys led by Senator William Borah demanded a specific pledge of prohibition enforcement. I Republican opponents of the law, headed by Columbia University president Nicholas Murray Butler, James Wadsworth, and Henry Curran, urged the platform committee to admit the failure of the Eighteenth Amendment. "We ask this not only for the practical reason that Federal prohibition, after eight years of trial, is doing more and more harm and less and less good-that it just doesn't work -which is a fact that you and I and everybody else knows," said AAPA president Curran. "Our plea rests on higher ground than that. It goes far beyond all questions of liquor traffic. It rests on the safety of the Constitution itself." He explained, "The introduction of this solitary sumptuary statute into our Constitution has already nullified the very spirit of that well-tried instrument. The prohibition amendment is more than a meddling barnacle on the framework of our ship of state. It is a direct puncture in the sound hull of local self-government by our local sovereign states."'
A long, stormy debate preceded committee rejection of the Butler plank advocating repeal of the Eighteenth Amendment on states' rights grounds. Instead platform drafters approved Borah's plank, pledging "observance and vigorous enforcement" of the amendment. Butler appealed to the full convention, but won only two to three hundred voice votes from the 1,089 delegates on a motion to table his plank. Returning to New York, Butler declared that the convention's actions had made the Republicans a prohibition party.'
The Republican convention's nominee for the presidency, Secretary of Commerce Herbert Hoover, gave substance to Butler's characterization. In his speech formally accepting the nomination, Hoover announced his opposition to repeal of the Eighteenth Amendment and his support for "efficient enforcement of the laws enacted thereunder."' Long identified as a progressive, Hoover believed that the path to social improvement lay in the direction of greater cooperative public action and less materialism. Equal opportunity for individual development, to him the central American ideal, occasionally required the sacrifice of self-interest to advance the general good. The commerce secretary felt encouraged that a major step in this direction had been taken with national prohibition. "The crushing of the liquor trade without a cent of compensation, with scarcely even a discussion of it," he wrote in 1922, "does not bear out the notion that we give property rights any headway over human rights."' Three years later he gave prohibition credit for "enormously increased efficiency in production" and, together with other recent improvements, for having "raised our standard of living and material comfort to a height unparalleled in our history and therefore of the history of the world. As he sought the presidential nomination in 1928, Hoover found himself pressed by his party's leading dry office-holder, Senator Borah, to again state his views on prohibition. Hoover readily admitted that "grave abuses" had occurred under prohibition but argued that these must not be allowed to break down the Constitution or the laws. He placed great faith in efficient, honest administration of existing statutes to achieve the desired goal, and he rejected Volstead Act modification as an impermissible nullification of the Constitution. He told Borah and repeated in his acceptance speech these oft-quoted and more often misquoted words: "Our country has deliberately undertaken a great social and economic experiment, noble in motive and far-reaching in purpose. It must be worked out constructively."' By this statement, Hoover revealed himself as a much more convinced defender of national prohibition than either of the two Republican presidents he was trying to succeed. Ever afterward, he would be remembered as a prohibitionist who considered the Eighteenth Amendment "a noble experiment. "
The Democratic convention, which followed its rival by two weeks, took a position on prohibition which was, to say the least, ambiguous. Meeting in Houston, the Democrats chose a dry platform and a wet candidate. Attempts to strike a balance between the dry southern and western wing of the party and the wet northern wing did not entirely succeed. The resolutions committee, having heard from speakers on both sides, including Captain Stayton, considered a subcommittee's compromise plank promising law enforcement but acknowledging the people's right to change the Constitution. After long and heated discussion, the platform committee, to avert a threatened dry floor fight, instead approved a plank which condemned Republican law-enforcement failures during the previous eight years and pledged Democrats "to an honest effort to enforce the Eighteenth Amendment." In presenting the platforms to the convention, the resolutions committee chairman, Senator Key Pittman, stressed that the plank in no way prevented any party member from seeking repeal of the prohibition amendment. Wet and dry spokesmen verified Pittman's interpretation.' Such qualifications and the nomination of Alfred E. Smith, well known as an opponent of prohibition ever since the 1923 Mullan-Gage law repeal, diminished the importance of the platform declaration.
Once nominated, Governor Smith telegraphed the Houston convention from Albany that he would defend the Constitution and the laws, changes in which could only be made by the people through their legislative representatives. At the same time, however, he felt it the president's duty to point the way to a solution of unsatisfactory conditions. "Corruption of law enforcement officials, bootlegging, lawlessness are now prevalent throughout this country," Smith charged. He believed fundamental changes should be made in existing provisions for national prohibition, specifically a return to state and local liquor control.' Smith's statement, which he repeated in its entirety during his August twenty-second speech formally accepting the nomination, helped identify the Democratic candidate and his party, despite its dry platform, as sympathetic to the wet cause.
Smith quickly strengthened his party's new image by appointing John Raskob to chair the Democratic National Committee. The choice caught the country by surprise. Raskob lacked any prior political experience. His sole Democratic affiliation was a close friendship with Smith, whom he had met in 1926. Indeed Who's Who listed the new Democratic national chairman as a Republican who had voted for Coolidge in 1924 Raskob was known to the public only as a business genius, a devout Catholic who contributed heavily to his church, and an outspoken advocate of prohibition repeal. 10 In the spring of 1928 the Association Against the Prohibition Amendment had appointed Raskob, a six-year member, to its board of directors, and only a month before Smith's announcement, the association had distributed 100,000 copies of a Raskob statement vigorously attacking national prohibition. " In accepting the chairmanship, Raskob asserted that there were times in the life of a nation when nonpoliticians must take an active interest in government. Praising Smith's stand on prohibition, he left no doubt why he felt a critical moment in American history was at hand. " Observers correctly saw the selection of Raskob as an attempt to reassure businessmen and to court their support," but the naming of a prominent AAPA director as national chairman also symbolized a growing Democratic attachment to the antiprohibition cause.
The 1928 campaign itself emphasized emerging partisan divisions on the prohibition issue. While Hoover defended the Eighteenth Amendment, Smith responded by charging that prohibition was a farce that had bred corruption, caused the rise of crime, and encouraged disrespect for all law. The Democratic candidate attacked prohibition during speeches in Albany, Milwaukee, Nashville, Chicago, Philadelphia, and Baltimore, proposing that Congress raise the maximum legal alcohol content and return liquor control to the states."
Smith's stand alienated dry Democrats, yet brought some hitherto independent or Republican repeal advocates into the Democratic fold. John Raskob and Pierre du Pont led the way. Raskob's feelings regarding prohibition motivated him to work tirelessly and to personally contribute $530,000 to the Smith campaign. Privately he told Ir6n6e du Pont, "Personally, I can really see no big difference between the two parties except the wet and dry question, and, of course, some people say the religious question, which I think both of us agree should form no part of politics."" As the campaign heated up, Raskob wrote, "There are few things more necessary or expedient to the future welfare and well-being of our country and its people than some modification of existing liquor laws that will restore temperate life. The Republican Administrations have failed to do this and I think have deliberately, through the prohibition enforcement unit, kept the truth with respect to what is happening under our liquor laws, from the people. "
Pierre du Pont, who made large political contributions in response to Raskob's appeals, confessed that he found some Democratic positions just as hard to accept as some Republican views, but he insisted on the overriding importance of prohibition repeal. " He wrote to Lammot, "Mr. Hoover has put himself in a position where he cannot recommend material changes in the law. Smith undoubtedly will do so. " Pierre lectured his Republican leaning younger brother, "You gloss over the charges against the Enforcement Division under Republican regime. If for no other reason the change should be had."" He further revealed his feelings to an Erie, Pennsylvania, correspondent: "While it is a disagreeable thing to desert one's political party, I felt this year that the party had deserted me and I could not stand for their ignoring the Prohibition question and for their methods of enforcing the Volstead Act. The latter especially is an outrage and an insult to our people. " "
AAPA president Henry Curran announced that, despite twenty years of service in the Republican party and a continuing loyalty to the GOP, he too intended "to vote for Governor Smith to be President, because he is right, and Mr. Hoover is wrong, on the one great issue of this campaign-prohibition."" Several normally Republican directors told Stayton they intended to support Smith in 1928 because of prohibition. On the other hand, some influential AAPA board members, James Wadsworth and 1renee du Pont among them, were not ready to abandon the Republican party, saying that since neither platform espoused repeal, other considerations had decided their vote. The association itself remained officially neutral, unwilling to take sides because neither party had completely accepted its position and because its own leaders were not yet fully agreed. II Yet the visibility of many prominent AAPA supporters within the Democratic ranks reinforced the party's increasingly wet image.
At the same time, supporters of prohibition lined up behind Hoover's candidacy. Defections from the Democratic column in the South, where much dry enthusiasm was centered, exceeded any election since the Civil War. Bishop James Cannon, head of the Methodist Board of Temperance, Prohibition, and Public Morals and leading dry spokesman since the 1927 death of Wayne Wheeler, campaigned vigorously throughout the South against Smith." "The greatest moral menace on the present political horizon, " proclaimed A. A. Schoolcraft, a minister from Lunenburg, Massachusetts, "is the dripping-wet figure of Governor Smith."" Midwestern drys also voiced opposition to the New York governor. Strong objections arose to Smith's Catholicism and his urban, immigrant-family background as well as his stand on the Eighteenth Amendment. Still, Robert Moats Miller's conclusion seems valid: "to millions of Protestants prohibition was truthfully an issue of transcendent importance; ... when Protestants said they opposed Smith because of his wetness, they meant precisely what they said.""
Many factors besides prohibition and religion influenced voter decisions in 1928, among them contentment with Republican economic policies and high regard for Hoover's long record of extraordinary achievement. "In 1928 Hoover would have won over any Democratic candidate," concluded David Burner in his careful study of the Democratic Party during the twenties. "No Democrat, whatever his faith and whatever his political program, could have vanquished the party that was presiding over the feverish prosperity of the later twenties."" Hoover polled 21.4 million votes, or 58.2 percent of the ballots, soundly defeating Smith, who received 15.0 million, or 41.2 percent of the votes. Recent analysts of the returns have correctly attributed the electors' choice to a complex variety of economic, religious, ethnic, party loyalty, and other motives, and not any single issue."
Nevertheless, in an immediate sense the 1928 election represented disaster for those opposing national prohibition. The wet position was seen as quite unpopular. Even apparently dispassionate contemporary observers announced that Smith's position on prohibition was one of the principal reasons for his downfall. Nor did it escape notice that the new Congress contained more drys than ever before. In the fifty-six House and Senate races where the AAPA had interceded, only nineteen wets won, eleven of them incumbents and five others victors in contests where the association had approved both candidates. Henry Curran ruefully concluded, "In 1928 we were licked.""
The incoming administration likewise viewed the returns as signifying approval of national prohibition. In his inaugural address, Hoover confidently urged state and local officials to help enforce the law and called on the public to support government efforts. To do otherwise, he warned, would destroy respect for all law. Citizens had the right to work for prohibition repeal, conceded the new president, but meanwhile their duty was to discourage its violation. Those who felt that repeal was impossible regarded Hoover's statement as a clear endorsement of prohibition. Drys announced their delight with the speech. Newly appointed Secretary of Commerce Robert P. Lamont publicly resigned from the AAPA, finding continued membership incompatible with service in Hoover's cabinet." Partisan distinctions on the prohibition issue might help the repeal cause if the political climate changed, but the 1928 election results were understood to convey the message that prohibition enjoyed broad support.
Al Smith's defeat, while it deeply disappointed wets, strengthened their resolve." The sympathy shown their position by a major, albeit badly drubbed presidential candidate and the elevation of one of their own to a party chairmanship convinced AAPA leaders that repeal was attainable. At the same time, they could not help but be aware of how far they stood from mustering the overwhelming support needed to amend the Constitution. Given the need for such a change to be approved by two-thirds of Congress and three-fourths of the states, most legislators would hesitate to challenge the status quo on this sensitive issue unless they could perceive a substantial political consensus favoring repeal. Neither popular pressure nor political support for reversing the Eighteenth Amendment could be expected until experience or convincing arguments swayed a vast portion of the electorate. The AAPA executive committee determined to pursue a vigorous campaign to influence public opinion.
The prohibition issue had received superficial and emotional treatment during the 1928 campaign. What exactly Hoover intended by his vague talk of law enforcement had gone unquestioned. On the other hand, prohibitionists bad vilified Smith for suggesting a return to local liquor control. Both wets and drys had seemed to feel that the validity of their dogmatically proclaimed positions must be self-evident. Exhortations had substituted for rational examination of prohibition's effect on American society. This had merely continued the established pattern of wet-dry debate. While prohibitionists regularly asserted that the law was generally effective and was yielding numerous social benefits, their opponents proclaimed the law unenforceable and warned that it produced crime and the breakdown of constitutional principles. Rarely did the public hear a serious, thoughtful, examination of prohibition and its impact. The handful of private studies drew on limited, inconclusive evidence. The federal government merely compiled arrest and liquor confiscation statistics. In 1926 the Social Science Research Council, finding existing information seriously inadequate, planned, but was unable to fund, a thorough, half-million dollar study of prohibition." Public understanding of prohibition remained low. "It is fair to say that there has been much exaggeration and misrepresentation on both sides," the AAPA executive committee admitted early in 1928. "The dearth of facts is a remarkable manifestation of the fog of controversy which still obscures the study of Prohibition."" The association itself bore some responsibility for this state of affairs. Prior to its reorganization, AAPA public statements had frequently retold sensational stories of prohibition violations, publicized every increment, however modest, in the strength of the repeal movement, and proclaimed unconvincingly that "the Anti-Saloon League's grip is broken.""
Over the years, Stayton had mobilized a solid core of repeal support with his warnings of constitutional and social disaster. However, there was little chance of creating a political consensus of the magnitude required to achieve repeal on the basis of an abstract philosophy of government and predictions of social decay. The 1928 election helped the executive committee realize that most voters were not convinced of the need for or possibility of repeal. To be moved to demand repeal, they must see varied and impressive evidence of prohibition's ill-effects. Therefore, the AAPA pursued a new publicity campaign which, while reiterating the association's fundamental objections to the law, sought above all to present a wealth of verifiable and persuasive facts unfavorable to national prohibition.
In April 1928 the AAPA executive committee created departments of research and information to investigate and publicize the operation and practical effects of national prohibition, estimate its economic influence, and examine foreign systems of liquor control. New York social worker John G. Gebhart, who had participated in the Social Science Research Council's abortive study and compiled its only report, a survey of information sources, was hired to head the research department. The executive committee gave Gebhart a staff of three full-time and several part-time assistants, including an economist and several field investigators, and an annual budget of $100,000 at first, more later." Between 1928 and January 1931 the department produced thirteen research pamphlets, of which more than 1,100,000 copies were distributed. The pamphlets and summaries prepared by the information department for use as news releases reached a larger audience than the association had ever attracted. According to the AAPA'S own estimate, stories dealing with its investigations appeared in over 250 million copies of newspapers, an average of over 18 million copies per pamphlet. The research department, as well as releasing scores of statements, gave considerable assistance to sympathetic authors. In all, the association engaged in a substantial effort to bring new information about prohibition to a wide audience. "
The publications of the research department revealed the AAPA'S fully developed positions and most broadly distributed arguments. They raised new objections to national prohibition while reinforcing the AAPA'S traditional complaints about the law. They suggest the primary concerns of the repeal organization and how its earlier motives were retained and refined in the course of appealing for public support.
The research department first explored prohibition's stimulation of crime and corruption in government. Henry Joy urged investigation of "crime and outrages committed by members of the prohibition unit," while Thomas W. Phillips offered $2,500 to publicize "these outrages ... to such an extent that it will make the prohibitionists blush with shame and possibly make Hoover come out and denounce them. " Pierre and lrenee du Pont enthusiastically agreed." The Joy-Phillips proposals, made in the midst of the 1928 campaign, bore political overtones, but the pamphlet, Scandals of Prohibition Enforcement, did not appear until March 1929, indicating a sustained concern with corruption. Drawing on official reports regarding five major cities, the pamphlet vividly described police department corruption in Philadelphia; Chicago's orgy of murder and bootlegging; graft indictments of the superintendent of police, over twenty policemen, and other officials in Pittsburgh; and Detroit and Buffalo border guard connivance in liquor smuggling. The federal prohibition bureau had dismissed nearly 1,300 employees for improper activities between 1920 and 1928, the report pointed out. Furthermore, Canadian records showed vastly increased liquor exports to the United States. Finally, the pamphlet described other "scandals" such as wiretapping to secure evidence, reckless use of firearms by prohibition agents, and declining judicial and penal standards caused by court and prison congestion. " The report cited William Howard Taft's 1915 prediction that national prohibition would transfer the liquor trade to criminals and require a large federal enforcement agency with sinister powers. "The reaching out of the great central power to brush the doorsteps of local communities, far removed geographically and politically from Washington, will be irritating in such states and communities, and will be a strain upon the bond of the national union," Taft had warned before becoming Chief Justice. "It will produce variation in the enforcement of the law. There will be loose administration in spots all over the United States, and a politically inclined national administration will be strongly tempted to acquiesce in such a condition."" The evidence in Scandals of Prohibition Enforcement, its authors concluded, fulfilled Taft's prophecy and demonstrated that the solution lay in a return to state liquor control.
The research department next emphasized prohibition's economic effect, a theme not frequently heard before, by computing its annual cost. Adding actual appropriations for the Prohibition Bureau and Coast Guard to estimated expenditures of the Customs Service and Justice Department, and deducting the $5,500,000 revenue from fines, produced a net federal enforcement expense of just over $36,000,000 in 1928. The research department also considered lost revenue from liquor taxes. Based on 1918 tax rates and per capita consumption for the final prewAr, preprohibition years, 1910-14, 1928 federal liquor tax revenue would have exceeded $850,000,000. States, counties, and cities would have received an additional $50,000,000 at least. Combining enforcement expenses and lost revenue enabled the AAPA to announce in its May 1929 publication, Cost of Prohihition and Your Income Tax, that the bill for 1928 was $936,000,000. A second edition one year later set the 1929 total at $951,000,000. In comparison, the pamphlets pointed out, federal revenue from individual income taxes amounted to $883,000,000 in 1928 and $1,000,000,000 in 1929. 11 The two editions of Cost carefully explained the AAPA calculations and avoided rhetorical attacks on the high price of prohibition. They became the most widely distributed of all AAPA research pamphlets, 209,000 copies being printed. Most significantly, estimated newspaper circulation of the cost reports reached nearly 80 million copies. " Antiprohibitionist concerns for economy in government would grow in prominence after the onset of the depression, but the Cost pamphlets demonstrate that they began even before the Great Crash.
In July 1929 a pamphlet entitled Canada Liquor Crossing the Border used Dominion Bureau of Statistics records to show that the United States received 90 percent of its northern neighbor's liquor exports as well as large quantities of passed-through Scotch whiskey and French wine. Over $31,000,000 of liquor was exported to the United States in 1927 alone. Before prohibition, Canada had annually sent about 30,000 imperial gallons of spirits across its southern border. While the figure dropped to 8,600 gallons in 192.1, thereafter it rose steadily and since 1926 exceeded a million gallons yearly. American customs agents admittedly seized only 5 to 10 percent at the border. A 1924 treaty to exchange smuggling information did not help, and Canada proved unwilling to take further steps. The AAPA report, careful, detailed, and presented without editorial comment, once again underscored the futility of government efforts to stop the liquor traffic.
Measuring the Liquor Tide, a broader survey of indexes of alcohol consumption, soon followed and became one of the more widely read research pamphlets. The association distributed seventy thousand copies, and stories based on it achieved a combined newspaper circulation of nearly forty-six million." Bureau of Prohibition annual reports were quoted, showing steady increases in seizures of contraband liquor (from 153,000 gallons in 1920 to 32,500,000 by 1928) and distilling equipment (15,000 pieces in 1920; 260,000 in 1928). Census Bureau figures showed decreasing death rates from alcoholism during the war and first year of prohibition, but a steady rise, both urban and rural, thereafter. The 1928 rate, 5 alcoholism deaths per 100,000 population, approached preprohibition levels. Arrests for drunkenness in a group of over five hundred communities fell from 1917 through 1920, then doubled during the next eight years. States which kept such records reported corresponding increases in alcoholic insanity, arrests for drunken driving, and deaths from cirrhosis of the liver." Concentrating on drinking patterns since 1920, Measuring the Liquor Tide ignored the question of whether conditions under national prohibition compared favorably with those prior to the passage of state and federal liquor bans. Nevertheless, the pamphlet's stark statistics reinforced the AAPA contention that intemperance had not been halted.
The AAPA investigated deaths resulting from efforts to enforce prohibition. Canada Liquor described several shootings of reputable citizens and suspected rum-runners in Minnesota, Michigan, and New York. A few months later, Rearming America with a Shotgun: A Study of Prohibition Killings estimated that about 1,000 civilians and officers had lost their lives in the course of Volstead Act enforcement. By comparison the federal government acknowledged 286 such deaths, while the Washington Herald claimed 1,360. Using federal reports, court records, and its own investigations, the research department described dozens of fatalities in detail. The emphasis was on unnecessary shootings of innocent victims, rather than deaths of bootleggers or prohibition agents engaged in gun battles. Agents shot at tires, stumbled and accidently discharged their weapons, or otherwise took wild shots which killed a suspect. The survey listed shootings of persons in flight or erroneously thought to have guns, of prohibition agents mistaken for bootleggers, and of innocent bystanders including children and even one United States senator, Frank L. Greene of Vermont (who survived a severe head wound). When states indicted prohibition agents for such shootings, federal attorneys intervened and caused cases to be removed to federal courts, where they generally won acquittals. This procedure was entirely legal, but the report implied that it was used to protect reckless agents. Reforming America underscored the AAPA argument that government prohibition-enforcement efforts endangered society."
Justice Department reports provided the evidence for one of the AAPA's final studies, Prohibition Enforcement: Its Effect on Courts and Prisons. In 1916, according to the study, federal courts handled 20,432 criminal cases, But by 1929 the number had jumped to 85,328. In 1928 and 1929, prohibition cases accounted for nearly two-thirds of all federal district court criminal cases (as well as over half the civil suits against the government). Since the courts were unprepared for such an increase in slow and costly jury trials, it became necessary to resort to "bargain days" on which defendants agreed to plead guilty in return for a light fine or short sentence. Penal institutions found themselves overwhelmed, although two-thirds of convicted prohibition offenders were merely fined. By 1930 federal prisons held nearly twice their normal capacity, and the overflow crowded state and county jails. The AAPA concluded that the prohibition burden was preventing American courts and prisons from dealing with alarming increases in other forms of crime."
AAPA research pamphlets reflected the association's foremost concern: loss of state and local self-control in government, causing dangerous social and political decay. With evidence compiled from government reports, newspapers, and other independent sources, the AAPA's reports appeared carefully prepared, well-reasoned, and objective. Newspaper wire services carried them as news rather than dismissing them as shrill partisan tracts. The pamphlets effectively documented and broadcast association charges that prohibition had failed in its purpose of stopping intemperance, yet had fostered crime and posed threats to traditional rights. Reflecting the AAPA's narrow view, the pamphlets made no mention of other features of American society-increased urbanization, business leaders' failure to observe laws, and high-level government corruption among them-which might account far increased crime, lost respect for law, and other disquieting conditions. With their shortcomings drawing few comments from anyone other than rabid drys, the pamphlets reflected the increasingly deft campaign of the revitalized association.
Leaders of the Association Against the Prohibition Amendment felt that other nations could show America better ways of encouraging temperance. The research department undertook an extensive examination of foreign systems of liquor control, sending investigators to Canada, Scandinavia, and western Europe." A series of eight original and unusually interesting descriptive pamphlets resulted.
The first foreign study, The Quebec System: A Study of Liquor Control, reported glowingly on government-regulated liquor sales. To replace a much violated prohibition law, Quebec in 1921 had given a government commission a sales and distribution monopoly on wine and spirits. Access to less intoxicating beverages was made comparatively easy, and to the most intoxicating, more difficult. Spirits could be purchased one bottle at a time in government stores for private consumption. The same stores could sell wine in unlimited quantities, and licensed restaurants could serve it with meals. Beer could be purchased in bottles from licensed stores and by the glass in licensed taverns. The plan worked well, the A"A reported, with "remarkably low" per capita consumption of alcoholic beverages compared to the United States. Beer and wine were noticeably preferred. The law was observed; arrests for drunkenness had declined, except among American tourists; and Quebec received one-fifth of its government revenues from the liquor commission. Subsequent pamphlets described how most Canadian provinces had successfully adopted variations of the Quebec system. Nova Scotia and Prince Edward Island alone were attempting prohibition, and they had experienced increased intemperance, considerable bootlegging, and improper prescription of medicinal liquor. Pleased with much of Canada's locally determined approach to liquor control, the AAPA concluded, "The United States can profit by the record of our Canadian neighbors. "
European liquor-control systems also interested the AAPA. Sweden had set up government-supervised, privately financed monopolies to manufacture and distribute liquor. The Swedish plan, developed by Ivan Bratt, a physician, set the profit limit at 7 percent, removing economic incentives to encourage drinking. Beer and wine sales were unrestricted, but spirits were rationed and reduced or cut off altogether for persons who used liquor improperly. Official records showed that since the Bratt system began in 1914, convictions for drunkenness had dropped 57 percent, crimes of violence had declined 48 percent, and annual per capita consumption of spirits fell 35 percent, from 6.9 liters in 1913 to 4.5 in 1927. Meanwhile, Sweden's income from taxes on liquor manufacturing, imports, sales, and profits doubled, providing a sixth of government revenue. England licensed sellers of alcoholic beverages. The AAPA investigation credited reduced liquor consumption and intemperance in England to steady reduction since 1904 in the number of licenses, high excise taxes on intoxicants, and restriction of the hours of public sale. Denmark had reportedly achieved great gains in temperance by doing nothing more than placing very high taxes on spirits. Only Norway and Finland's temperance efforts were deemed failures; both had adopted national prohibition . 41
The foreign studies received less public attention than did other research department publications. The AAPA published 40 to 80 thousand copies of each, and 187 thousand of The Quebec System; but newspaper stories about them never exceeded 15 million circulation and usually fell far short of that. They represented, however, a major AAPA effort at the time to determine, find, and call attention to satisfactory, temperance-promoting alternatives to national prohibition. Association leaders considered it as improper to force any new system of liquor control on the states as it had been to impose the Eighteenth Amendment and Volstead Act on them. Nevertheless, the executive committee spent over a year discussing various options. Pierre du Pont, who had been giving the matter considerable study ever since 1926, when he had first been attracted to the Quebec system, even published his own Plan for Distribution and Control of Intoxicating Liquors in the United States. Past abuses demonstrated that public protection required restrictions on intoxicants, he concluded. The guiding principle should be as free an access as could be made consistent with the protection of others. To this end, he was opposed to sale of liquor by the glass, or sale for consumption in a public place, for fear it would bring back the saloon. Furthermore, du Pont proposed that liquor abusers and persons under eighteen be restrained from drinking. Examination and licensing for fitness to purchase liquor appealed to him, as did the Swedish system of a state-regulated, private liquor-sales monopoly. Unrestrained private enterprise, he felt, might encourage drinking and restore the undesirable saloon. The Quebec system he gradually came to distrust, fearing that government employees could be corrupted, and doubting their fitness for commercial activity. The Swedish private monopoly, with prices set and profits regulated by the state, offered, he thought, the advantages of public regulation and efficient operation of the liquor trade."
The foreign studies and du Pont's plan revealed a great deal about AAPA attitudes. Association leaders judged various programs first and foremost on their ability to provide temperance and freedom from crime. As a result, they endorsed the concept of strong governmental regulation. They did not approve of federal control, with decision-making far removed from those affected and not attuned to local variations, but they did accept regulation on the level of a province or small homogeneous nation (the supposed equivalent of a state). Association leaders also supported examination and licensing of individual drinkers, sale of liquor in sealed packages not to be opened or consumed on the premises where sold, strict limitation of private profit in the liquor business, and state price-fixing to keep prices down so as to discourage bootlegging. As they considered alternatives to national prohibition in the late 1920s, AAPA leaders revealed themselves as foes of a powerful, intrusive federal government, but not equally active state governments.
Two separate and substantial government inquiries into the operation of the liquor ban soon followed the AAPA attempt to build its case with well researched and documented arguments. The furious but unenlightened campaign debate of 1928 and possibly the early AAPA research pamphlets brought recognition of the need for more, and more reliable, information on the effects of prohibition. Investigations by a congressional committee and a presidential commission, although controversial, added to the body of public information regarding the dry law. Furthermore, they appeared to deepen partisan differences and commitments in the controversy.
During the 1928 presidential campaign, Herbert Hoover had pledged to establish a prohibition study commission, and on the day he took office, Congress appropriated funds for the inquiry. In his inaugural address, the new president talked of disregard for law as "the most malign" danger to the country. Ineffective law-enforcement machinery and citizen indifference undermined justice. "To consider these evils, to find their remedy, is the most sore necessity of our times."" When he appointed the eleven-member commission in May 1929, Hoover asked it to consider the entire problem of American criminal justice and recommend improvements in the administration of federal laws. Some saw this as an attempt to divert Chairman George Wickersham, a former United States Attorney General, and the other members of the National Commission on Law Observance and Enforcement from focusing too intently on prohibition. " But the Wickersham commission, as it quickly came to be known, perceived the study of national prohibition as its principal responsibility. It quietly set about gathering information, engaging academic and professional experts to conduct special research studies on such topics as the causes and cost of crime, the police, juvenile delinquency, the courts, probation, prisons, and parole. The commission took testimony in private, examining representatives of labor unions, the Anti-Saloon League, and the Association Against the Prohibition Amendment. Except for a letter from Wickersham in July 1929 urging more state enforcement support, which New York governor Franklin Roosevelt read to a national governor's conference, and a brief, inconclusive interim report in January 1930 recommending minor changes in enforcement procedures and the transfer of the Prohibition Bureau from the Treasury to the Justice Department, the commission gave no indication for more than a year and half of what it was learning or what it would recommend." One member of the commission became so frustrated by the pace of its work and its domination by the chairman and executive secretary that he submitted his resignation, which Hoover did not accept." Nevertheless, the public presentation of information and the shaping of opinions fell to others during a time when the new administration had hoped to provide more effective enforcement and to build popular support for the law.
Early in 1930 the House Judiciary Committee decided to hold hearings to consider proposals for altering the Eighteenth Amendment. Since the last major congressional inquiry in 1926, prohibition agents had been put under civil service, enforcement appropriations had been increased, and maximum penalties for Volstead Act violations had been raised to five years' imprisonment or a $10,000 fine, or both. The latter legislation, known as the Jones Five-and-Ten Law, for its sponsor, Washington senator Wesley L. Jones, stirred particular controversy. The Judiciary Committee's highly publicized hearings, held between February and April 1930, gave wets and drys alike a chance to present their views on the Jones law, the functioning of the Prohibition Bureau, and the liquor situation in general.
The Anti-Saloon League, the Women's Christian Temperance Union, the Methodist Board of Temperance, Prohibition, and Public Morals, the Association Against the Prohibition Amendment, and lesser groups made their standard dry or wet arguments. Grayson Murphy made a statement typical of the nearly two dozen AAPA officers and directors who spoke: "In the first place, the eighteenth amendment is absolutely contrary to the spirit of the rest of the Constitution.... [This] has led to all sorts of government acts which are contrary to the spirit of the Constitution ... [and] more crime, more corruption, more hypocrisy than any other law or set of sumptuary laws I have ever heard of in the world."" One of the few fresh approaches came from AAPA research director John Gebhart, who presented an impressive array of evidence on the evil effects of prohibition. He documented increases of drunkenness and crime since 1920, the adverse impact of prohibition on the legal and penal system, and the economic burdens of the law. Gebhart revealed a new study showing rises in both alcohol consumption and liquor prices since 1920. Prohibition had not stopped drinking, Gebhart concluded; it only increased costs to consumers and diverted profits into the hands of criminals." Gebhart's fact-laden presentation, which attracted considerable attention and which drys chose to ignore rather than rebut, represented a major success in the AAPA educational effort, even though the only congressional response was to seek improved prohibition enforcement by finally moving the Prohibition Bureau to the Justice Department.
On January 20, 1931, President Hoover made public the Wickersham commission's long-awaited report on prohibition. In a statement released the previous day, Hoover had announced that while it found current enforcement unsatisfactory, "the commission, by a large majority, does not favor the repeal of the eighteenth amendment as a method of cure for the inherent abuses of the liquor traffic. I am in accord with this view."" The two-page statement of conclusions and recommendations, signed by ten of the eleven commissioners, to which Hoover referred, opposed prohibition repeal, return of the saloon, government liquor monopolies, or legalization of beer and wine. It found that enforcement was improving but still inadequate and needing greater federal appropriations. Buried in paragraph ten was the curiously phrased acknowledgement that some members "are not convinced that Prohibition under the Eighteenth Amendment is unenforceable and believe that a further trial should be made with the help of the recommended improvements, and that if after such a trial effective enforcement is not secured there should be a revision of the Amendment," and that others were ready for immediate revision." The president rejected any such suggestions. "My own duty and that of all executive officials is clear-to enforce the law with all the means at our disposal without equivocation or reservation.""
A reading of the entire 162-page report, including the results of the commission's prohibition studies and the individual conclusions of each member, made apparent the serious distortions in Hoover's characterization of it. The finding of increased drinking since 1920, widespread bootlegging and official corruption, overburdened judicial and penal systems, lack of state support for enforcement, and damaged respect for law agreed with AAPA analyses. The report conveyed an underlying sense of skepticism as to whether prohibition could ever be made to work. Pierre du Pont thought the association itself could just as easily have written the body of the report. "The facts certainly track your citation of facts, and, in most cases, could not have been put in better words for our purposes," he told Henry Curran. "How the recommendations could have been drawn from the facts is beyond me.""
Individual statements which the eleven commissioners attached to the report clearly demonstrated that the "conclusions and recommendations" represented a political compromise, a clear effort at least in some eyes, to avoid embarrassing the Hoover administration. " The separate statements had little in common with the supposedly agreed upon summary. A preponderant majority of commissioners found the current system of national prohibition unenforceable or unwise; nine referred to the noticeable lack of public support for the law; and six wanted immediate change. Former Secretary of War Newton D. Baker and Monte M. Lemann of New Orleans (the only member who refused to sign the general report) favored outright repeal of the Eighteenth Amendment and the return of liquor-control responsibility to the states. Commissioner Henry W. Anderson had become so interested in descriptions of the Bratt system that he had traveled to Sweden to investigate personally the government-regulated liquor monopoly. Now he recommended its immediate adoption with slight reservations, technically only modifying the Eighteenth Amendment, but actually, by making liquor again available, repealing national prohibition. Four commissioners agreed completely with Anderson, and two more endorsed his solution if a further trial of prohibition were to prove unsuccessful. A reluctant chairman Wickersham saw problems with the Anderson plan, but he too regarded it as the best alternative if the continued prohibition enforcement he preferred were to fail. Only one commissioner, federal judge William 1. Grubb, unequivocally favored further pursuit of prohibition in the hope of achieving better enforcement and public support."
The obvious contradiction between the commissioners' individual views and what Hoover had presented as their shared conclusions caused an uproar. Wets and drys alike hardly knew whether to praise or damn the report. Both sides generally concentrated on portions which favored their cause. Many newspapers and journals noted the confusion which the report had caused and criticized the president for misleading the country about the commission's views. II The White House's own confidential analysis of several hundred newspapers, most of them small, found editorial opinion predominantly critical." "What was done," charged Walter Lippmann, "was to evade a direct and explicit official confession that federal prohibition is a hopeless failure."" "Is his action either constructive or courageous? Is his treatment of the report in his message of transmittal even honest?" asked The Nation." Another writer in The Nation more charitably described the president as having emphasized the report's few conclusions with which he could agree." Others, Franklin P. Adams of the New York World for one, simply made fun of the commission:
Prohibition is an awful flop.
We like it.
It can't stop what it's meant to stop.
We like it.
It's left a trail of graft and slime
It don't prohibit worth a dime
It's filled our land with vice and crime,
Nevertheless, we're for it."
Frivolous oversimplification such as this perhaps most accurately reflected the reception given the report. At any rate, the confusion and controversy it generated ended any hopes that the Wickersham commission could resolve the national prohibition issue.
The Wickersham commission report did draw increased attention to the debate over prohibition. The study of existing conditions, which the AAPA shrewdly emphasized in its efforts to influence public opinion and which the House Judiciary Committee publicized and the Wickersham commission independently confirmed, produced a general agreement that the law was not effective. A majority of Wickersham commission members expressed admiration for the same remedy which appealed to AAPA executive chairman Pierre du Pont, a return of liquor under controlled conditions. Had it not been for the influence of President Hoover, it would have been clearly evident that the thinking of the Wickersham commission ran along the same lines as that of the AAPA.
The circumstances of the Wickersham report's release tied Herbert Hoover more firmly and publicly to the prohibition cause than ever before. While in 1928 Hoover had merely described national prohibition as "an experiment noble in motive and far-reaching in purpose," by 1931 he was saying that he opposed repeal and favored more effective enforcement. "So far as he is able," judged the New York Times, he has committed the Republican party to a thoroughgoing and unyielding policy of enforcing prohibition by the full power of the Federal Government."" The president unquestionably projected a strong, clear image as a defender of prohibition. Yet by resorting to his favorite problem-solving device, the fact-finding commission of experts, Hoover unwittingly provided ammunition for the dry law's opponents.
The political contest of 1928 had set in motion a new phase of the prohibition debate, one in which conditions under the law were closely examined and partisan positions began to be defined. By January 1931, when the Wickersham commission report was released, lines were drawn more sharply than ever before. While the commissioners assumed that Eighteenth Amendment repeal remained impossible and that a solution would need to be found in modification, however drastic, signs were already beginning to multiply that this might not be so. The encouragement which the Association Against the Prohibition Amendment received from the 1928 Smith campaign was being reinforced by various indications of growing popular and political support.
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