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POTOMAC PLACE

Patrick Caddell's Unknown Role Resolving the Closest Race in Senate History  

 

A few weeks ago, Patrick Caddell, once the boy-wonder of American politics, died at 68    Caddell's polling skills and political insights guided James Earle "Jimmy" Carter to the presidency in 1976.  I crossed paths with Caddell in 1974-75 during the closest U.S. Senate race in history. 

(https://www.nytimes.com/2019/02/16/obituaries/patrick-caddell-dead.html)

 

                                    The New Hampshire Durkin - Wyman Election Controversy

On Election Day, November 5, 1974, the New Hampshire results showed that Congressman Louis Wyman (R-NH) had defeated former insurance commissioner John A. Durkin by 355 votes out of 223,363 votes cast.

Durkin and I were law school classmates at Georgetown; we both were Navy veterans; we attended each other's weddings, and spent considerable time together during and after law school. John left an important Washington legal position with the Treasury Department's Comptroller of the Currency to return to New England. A Massachusetts native, he accepted a position as an assistant attorney general in New Hampshire, once represented in the U.S. Senate (1918-1933) by George H. Moses, the grandfather of his wife, Patricia "Pat" Moses. John subsequently was appointed insurance commissioner and gained statewide acclaim for his progressive consumer policies, particularly his battle with insurance providers to keep health care premiums at affordable levels.

 

   In 1973, Durkin decided to run for the U.S. Senate. Early on in 1974, John asked me to be his Washington finance chairman. I paused in our conversation thinking through the formidable challenge of raising funds for an unknown candidate in a year with 435 House and 34 Senate races. Simply put, too many people were seeking to share a limited pool of money.

 

   Among the things I considered, as had Durkin, was that: first he had to win the Democratic nomination in the September primary; he was seeking to succeed Norris Cotton, a revered long-serving Republican member of the U.S. Senate, who was retiring; his likely opponent was Congressman Louis Wyman, who over the years had served as New Hampshire attorney general and as a political aide to governors and senators; and, that Republicans outnumbered Democrats in New Hampshire two to one.

 

   On the plus side, it was a changing political environment. It was the Watergate era. For the entirety of 1973 and through the summer of 1974, when President Nixon resigned in disgrace, the status of Republican candidates was in decline. Add to that the fact that John Durkin was an astute student of politics. He knew the history of voting patterns throughout the state, where he would be weak or strong, and the locations where the opportunity lay to attract moderate to liberal Republicans, independents, and the new voters migrating north to avoid the high Massachusetts taxes. Durkin knew that it would be an uphill battle, but he believed he could win it. While he didn't have me at "hello," he was a good friend, and I was up for the challenge. While it was tough going, we raised about $50,000 from various Washington sources.

 

   About three weeks prior to the election, Durkin booked a $19 room for me at Manchester's Wayfarer Hotel, a room I barely saw since I would travel with him day and night throughout the state. After a week, Durkin got me a free room downtown in the old and seedy Carpenter Hotel. He provided me with an ill-fitting maroon polyester sports jacket for our visits, many of them unannounced walk ins, to local cable television stations that were in those days no more than store front operations. Desperate for news content, these small stations would put anyone on the air. I would don the maroon jacket and pose as Washington correspondent Neal Gillen and ask Durkin a set of prepared questions. This was six weeks after President Gerald R. Ford did the unthinkable by pardoning former President Richard M. Nixon. Ford's action stunned the nation and was still on the tip of the tongue of every New Hampshire voter. Durkin keep that issue in the forefront noting that Wyman and Ford were close colleagues during their service in the U.S. House of Representatives.

 

   We visited fish processing plants, quarries, lumber camps, an air traffic control installation, college campuses, textile mills, shoe and sneaker factories, construction sites, shipyards, fire stations and  police precincts, church socials, Elks Clubs, VFW, American Legion, and Knights of Columbus meeting halls, beauty parlors, barber shops, diners, coffee shops and restaurants, radio and television stations, and anywhere people were gathered.  Most days it was just the two of us with Durkin driving. He would often pull over to the side of the road and speak to people. Whenever he approached a town he would stop at roadside payphones, call the local radio station, and using a trick taught to him by a telephone company installer, he would unscrew the oval piece you talked into, insert a clip linked to his pocket tape recorder, and play a 30 second or one minute message on current issues to that station's listeners. He did this continually as we travelled and not once did a station refuse to give him free air time. It was a perpetual high, an adrenalin rush, as we moved about the state knowing that as each hour passed Durkin had a legitimate chance. I would often call Washington business and labor friends from the same roadside phone booths touting Durkin's chances and requesting money for radio and television ads.

 

   One night in this time period, Durkin and I met with Patrick Caddell in my room at the Carpenter Hotel. Caddell, was nosing around the state talking to the locals and doing informal polling to determine the degree of support for the many putative 1976 Democratic presidential candidates. As a Harvard undergraduate, Caddell had polled for Senator George McGovern (D-SD) in his failed race against Richard Nixon in 1972.

 

   The meeting was interesting, but Durkin was leery of Caddell.  To begin with, he was young and brash, relatively untested and just two years out of Harvard. Durkin didn't want to engage him or be linked with him, but he was interested in what he had to say, particularly his take on Durkin's race. Caddell said he thought that Durkin had a good chance of winning. Knowing that Caddell had a penchant for tooting his own horn, Durkin feared that Caddell could become an issue in the campaign. I urged John that if he was going to engage a pollster it should be Peter Hart, who had earned his chops working for the respected Lou Harris, and already had a score of successful campaigns behind him. Equally important, Hart had an impeccable reputation for accuracy and confidentiality.

 

   For the time being, Durkin was his own pollster, and a damn good one at that. Further, the campaign lacked the money to pay for a pollster. While he was some 20 points down in an early October Manchester Union Leader poll, with 25 percent of those polled undecided, Durkin was sure that enough voters would come his way.  A Boston Globe poll had the race closer, which added to Durkin's confidence. The polling data resulted in Wyman's taking things for granted. His hubris would turn out to be an advantage for Durkin. Wyman would campaign from his rocking chair. He was barely heard from. He limited his campaigning and failed to respond to Durkin's repeated attacks. As a result, Durkin got most of the news ink and owned the airwaves in the last month of the campaign.

 

   Following a campaign rally on election eve, I flew to New York City, where I still voted, before flying back to Washington to watch the election results at a Democratic National Committee party at the Mayflower Hotel. As I watched Durkin's race see-saw back and forth, I called him. He told me that based on his precinct canvassing he would win by no more than 50 votes. He called the next day informing me that he had requested a recount, and expected to turn around Wyman's 355 vote margin. He also noted that he would need another $25,000 for the court actions that would soon follow.

 

   The following week, the secretary of state had completed the recount declaring Durkin the winner by 10 votes. Governor Meldrim Thomson reluctantly issued Durkin a certificate of election, which he promptly sent to U.S. Senate Majority Leader, Mike Mansfield (D-MT). But, it wasn't over yet. Under New Hampshire law, Wyman appealed to the state's Ballot Law Commission, which on Christmas Eve, after weeks of considering 3,500 contested paper and machine ballots, declared Wyman the winner by two votes. Then, the governor rescinded Durkin's certificate of election and issued one to Wyman.

 

   Durkin took the issue to the U.S. Senate, which under Article I, Section 5 of the U.S. Constitution had final authority to " be the Judge of the Elections, Returns, and Qualifications of its own Members."  The matter was taken up by the Senate Rules Committee, ironically once chaired by Pat Durkin's grandfather.  

 

   The Committee Clerk, William Cochrane, being a personal friend, so, along with Tom Boggs, also a Durkin law school classmate, we made the initial approach to determine how the Subcommittee on Privileges and Elections would proceed in the matter. We also briefed a number of sympathetic Senators and their staffs on what had happened in New Hampshire. Once the hearing was scheduled, Tom and I stepped aside for Tom Downs, a highly competent Michigan attorney who specialized in election laws and procedures.

 

   A lengthy hearing was held on January 9, 1975, where Durkin introduced samples of ballots that he argued had been incorrectly nullified or declared for Wyman. In all, Durkin proffered that while some 400 ballots were in contest, he would agree to narrow that down to some 50, mostly paper ballots, that were arguably decided in error by the New Hampshire Ballot Law Commission. Wyman argued that the Commission's ruling should be honored, that it was upheld by the New Hampshire Supreme Court, and that he should be seated. He did note, however, that should it be the Senate's will, he would agree to a new election -- perhaps the key point in the whole exercise. A week later, the Rules Committee attempted to resolve the matter in Durkin's favor, but could not do so since Alabama Democrat James Allen voted with the Republicans resulting in a 3 to 3 deadlock. The full Senate returned the matter to the Rules Committee, which created a staff panel to examine all 3,500 questionable ballots.

 

   Three and a half months later, on May 22, 1975, the Rules Committee, which had narrowed the dispute down to 35 contested ballots, submitted its report to the Senate. In the prolonged Senate debate running into mid-July, agreement was reached on only one ballot. The Republicans had effectively delayed the proceedings by filibustering the issue. In six cloture votes the Democrats failed to end the filibuster. Durkin, who needed 60 votes to end the debate and allow the Senate to vote on seating him, could only garner 57. Unable to muster the necessary votes, Durkin requested the Senate to declare the seat vacant and permit a new election. Since that was Wyman's often stated preference, the Republican leadership readily agreed. On August 8th, the Senate declared the seat vacant, and the New Hampshire secretary of state set the election for September 16th.

 

                                                                   The Durkin Strategy

From the time he arrived in Washington in early January, Durkin had his doubts about winning the battle in the Senate. In our canvassing of Democratic Senate members and staff, Tom Boggs and I learned quickly that even partisan politicians were reluctant to make a decision for the voters of another state in the closest race in Senate history. The Southern members were particularly adamant on this point. One, Herman Talmadge (D-GA), confided to me that his law school classmate, Governor Meldrim Thomson, had urged him to remain neutral.  

 

   Durkin was playing for time. He viewed time as his friend as it let him get his story out to the people of New Hampshire, particularly the perceived unfairness of the Ballot Law Commission's decisions nullifying ballots that arguably should have been Durkin's. There was also considerable time to raise funds. The sole election in play, it was the only game in town, it received continued coverage in the national media, and consequently made our fund raising efforts much easier. During this period we raised or had Washington commitments for over $100,000, mostly from labor unions, while influential Senate members, particularly Alan Cranston (D-CA), tapped into the largess of their wealthy constituents. Durkin was also receiving a substantial number of small contributions from New Hampshire voters and many unsolicited ones from across the nation.

 

   Another important factor was the campaign spending limits then in effect. As a result of the questionable 1972 Nixon fund raising operations revealed in the Watergate investigation, in 1974, the Congress enacted amendments to the Federal Election Campaign Act of 1971, that among other things, limited by a formula determined by state population, the funds that could be expended by candidates seeking federal office. The limit in New Hampshire was $200,000 per candidate, an amount we virtually had in hand.

 

   Timing was everything. Durkin had a head start in his planning, and following the advice of Don Madden, the capable Manchester political ad man, billboards were locked up in key locations, as were valuable radio and television slots in selected markets, signs and buttons were made, and mailers were ready to go weeks before the Senate authorized a new election. More importantly, the labor unions, in addition to printing brochures and flyers, and mailing such information to the state's 53,000 union members, established and staffed numerous telephone banks and sent in a cadre of skilled political organizers to work with local unions to mobilize voters.

 

   Durkin's preparation stunned Wyman, who was never able to organize a successful campaign. In the end, Durkin outraised Wyman by some $50,000. Wyman's financing efforts were dismal, falling far short of the $200,000 spending limit. Durkin's advantage was multiplied by Labor's in-kind contributions that were not subject to the spending limits. The New York Times estimated that Labor's non-reported effort in the special election approximated $250,000.   

 

The 1975 Durkin - Wyman race would be the only federal election ever conducted under those expenditure limits. In 1976, in the case of Buckley v. Valeo, the U.S. Supreme Court ruled that the expenditure limits contravened the First Amendment provision of freedom of speech since any restriction on spending for political communication necessarily reduces the quantity of expression.

 

                                                                Enter Patrick Caddell

During that summer I was still pushing the virtues of Peter Hart. His clients were victorious in a number of key Senate and governor races in 1974. Peter had provided me with a reasonable proposal and when Tom Boggs and I offered to loan the campaign the funds to finance Hart's initial survey of 500 voters, Durkin revealed that for the previous two months Patrick Caddell, in his informal polling of potential Democratic presidential candidates, had added questions on the Durkin-Wyman race. According to Caddell, as of the second week in July, Durkin was ahead by one point and the undecided voters were steadily breaking for him. Durkin also produced the latest poll of the unfriendly Manchester Union Leader indicating that Wyman was up by only 1.5 percent with 25 percent of the voters undecided. Durkin was clear, "Look, Hart's the best, but Caddell's free. He's trolling for a presidential client and he put in questions about me. Do you guys see a problem here?" he said. Laughing, he went on, "Free is better." We agreed that while Hart would be the better choice, Caddell seemed capable, and that free was good.

 

                                                      Ford Visit Cinches Durkin Victory

Durkin was in full campaign mode weeks ahead of Wyman, making issue of the latter's contributions from oil, banking, and sugar interests, and his alleged involvement during the 1972 presidential campaign in soliciting a questionable $300,000 contribution to President Nixon from New York department store heiress, Ruth Farkas, in exchange for an Ambassadorship for her -- a key issue in the 1974 election, which was still unresolved by the Watergate Special Prosecutor.

 

   As Caddell's polling showed Durkin continuing to gain ground, a White House spokesperson announced that President Ford would visit the Granite State the following week. At that point, Ford's pardon of Nixon, lodged in the back of the minds of New Hampshire voters, came to the forefront again with the assist of Durkin, who would not let people forget it.  Following the announcement of Ford's visit, Caddell's polls showed the undecided voters and some Republicans were now favoring Durkin. The margin had moved up over five percent in Durkin's favor.

 

   On September 11th, President Ford touched down in Exeter, New Hampshire, and moved throughout the state for most of the day. The trip, however, was not a bonus for Wyman. Immediately following the Ford visit, there was considerable movement towards Durkin, particularly in the heavily Republican Merrimack Valley area. Durkin would win there and in the GOP bastion of Exeter where he beat Wyman by 60 votes. Durkin carried every area visited by President Ford.

 

   The state-wide results on September 16th had Durkin winning by a 27,359 vote margin, a pickup of some 30,000 votes above his 1974 Ballot Law Commission total.

 

   Two days later, on September 18th, with Senator Patrick J. Leahy (D-VT), another Georgetown Law School classmate, presiding, John Durkin was sworn in by Vice President Nelson Rockefeller. Senator Leahy welcomed Durkin to the Senate as his successor as the new junior member. Now, almost 45 years later, Leahy is the senior member of the Senate.

 

   At a reception for Senator Durkin that evening, I spoke to Caddell. I was curious to know who was leading in his informal polling in the forthcoming New Hampshire presidential primary. He told me that of the dozen or so candidates (Jimmy Carter, Jerry Brown, George Wallace, Morris "Mo" Udall, Henry "Scoop" Jackson, Frank Church, Robert Byrd, Sargent Shriver, Fred Harris, Birch Bayh, Terry Sanford, and Milton Shapp) that Shriver was the leader in his polling with a total of 9 percent, Mo Udall second with 5 percent, and Jimmy Carter and the others at 2 to 3 percent, and over 50 percent undecided. It should be noted that in deference to Durkin, most of the candidates had limited their campaigning in the state until after the special election.

 

   Caddell ended up polling for Carter who won the February New Hampshire primary following his surprise win in the Iowa Caucus. Carter edged out Mo Udall 28 to 23 percent with Birch Bayh netting 15 percent. Sargent Shriver, who was not an active candidate, came in close to Caddell's September number with 8 percent. Durkin was right; Caddell was good. And, according to Hamilton Jordan, President Carter's Chief of Staff, were it not for Caddell, Carter never would have been president.

 

   Durkin served for one term, losing his reelection bid as did Carter in the 1980 Reagan landslide, to Warren Rudman, a member of the 1974 Ballot Law Commission, by 16,104 votes out of the 375,014 votes cast. John's independence and strong will led to his undoing. In 1976, when President Ford nominated Rudman to be Chairman of the Interstate Commerce Commission, Durkin blocked his nomination in the Senate. "In retrospect," Rudman wrote in his memoir (Combat:: Twelve Years in the U.S. Senate) "opposing my nomination was the worst mistake Durkin ever made, because if I'd been serving on the ICC in Washington in the late 1970s, I probably wouldn't have run against him in 1980."

   

   Following his defeat, Durkin  let bygones be bygones and resigned his Senate seat six days before his term expired to give Rudman a seniority advantage over other newly elected senators. Durkin died in 2012, at the age of 76, in the New Hampshire Veterans Hospital from causes related to Alzheimer's disease.

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