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Just Say No…

By all accounts Barack Obama has his work cut out for him convincing Congressional Republicans – and some Democrats – that his proposed obama0404nuclear weapons control agreement with Iran is better than having no deal at all.

Republican skepticism about an Obama initiative certainly isn’t surprising, since the president has seen something approaching universal disdain for virtually anything he has proposed since 2009. That Republicans are inclined to oppose a deal with Iran shouldn’t be much of a surprise either. In the post-World War II era, conservative Republicans in Congress have rarely embraced any major deal- particularly including nuclear agreements – which any president has negotiated with a foreign government.

Republicans Have Long Said “No” to Foreign Deals…

Before they were the party of NO on all things Obama, the GOP was the party of NO on international agreements – everything from the Treaty of Versailles at the end of World War I to the Panama Canal Treaties during Jimmy Carter’s presidency. Even when Ronald Reagan Mikhail-Gorbachev-Ronald-Reaganattempted a truly unprecedented deal in 1986 with Mikhail Gorbachev to actually eliminate vast numbers of nuclear weapons – the famous Reykjavik Summit – most conservative Republicans gave the idea thumbs down and were happy when it fell apart.

And, near the end of his presidency when Reagan pushed for a treaty limiting intermediate nuclear weapons, conservatives like North Carolina’s Jesse Helms, Wyoming’s Malcolm Wallop and Idaho’s Jim McClure thought that Reagan, then and now the great hero of the conservative right, was plum crazy.

Much of the criticism of Reagan from the hard right in the late 1980’s sounds eerily like the current critique of Obama, which basically boils down to a belief that the administration is so eager for a deal with Iran it is willing to imperil U.S. and Israeli security. As Idaho’s McClure, among the most conservative GOP senators of his day, warned about the Reagan’s deal with Gorbachev in 1988, ”We’ve had leaders who got into a personal relationship and have gotten soft – I’m thinking of Roosevelt and Stalin,” but McClure was really thinking about Reagan and Gorbachev.

Howard Phillips, the hard right blowhard who chaired the Conservative Caucus at the time, charged that Reagan was ”fronting as a useful idiot for Soviet propaganda.” Helms actually said Reagan’s jesse-helms-reagan_685352cnegotiations with Gorbachev put U.S. allies in harms way, just as Mario Rubio, Ted Cruz and Scott Walker say today Obama is putting Israel at risk. ”We’re talking about, perhaps, the survival of Europe,” Helms declared in 1988.

Walker, who was 20 years old when Helms’ was preaching apocalypse, told a radio interviewer last week that the Iranian deal “leaves not only problems for Israel, because they want to annihilate Israel, it leaves the problems in the sense that the Saudis, the Jordanians and others are gonna want to have access to their own nuclear weapons…” Never mind that the whole point of the Iranian effort is to prevent a nuclear arms race across the Middle East.

Date the GOP No Response to FDR and Yalta…

Historically, you can date the conservative Republican opposition to almost all presidential deal making to Franklin Roosevelt’s meeting with Stalin at Yalta in 1945 where FDR’s critics, mostly Republicans, contended he sold out eastern Europe to the Reds. “The Yalta agreement may not have been the Roosevelt administration’s strongest possible bargain,” Jonathan Chait wrote recently in New York Magazine, “but the only real alternative would have entailed continuing the war against the Soviets after defeating Germany.”

By the time of the Yalta summit, Red Army troops had “liberated” or were in place to occupy Poland and much of central Europe, which Roosevelt knew the United States and Great Britain could do little to stop. The alternative to accommodation with Stalin at Yalta, as Chait says, was making war on Stalin’s army. Roosevelt’s true objective at Yalta was to keep Stalin in the fold to ensure Soviet cooperation with the establishment of the United Nations, but the “facts on the ground” in Europe provided a great storyline for generations of conservatives to lament the “sellout” to Uncle Joe.

That conservative narrative served to propel Joe McCarthy’s hunt for Communists in the U.S. State Department and cemented the GOP as the party always skeptical of any effort to negotiate with the Soviet Union (or anyone else). Many conservatives contended that “negotiations” equaled “appeasement” and would inevitably lead American presidents to mimic Neville Chamberlain at Munich in 1938. Illinois Senator Mark Kirk dusted off that old chestnut last week when he said, “Neville Chamberlain got a better deal from Adolf Hitler,” than Obama did from the Iranians. The Iranian deal is certainly not perfect, but worse than a pact with Hitler?

Conservatives became so concerned about “executive action” on Brickerforeign policy in the early 1950’s that Ohio Republican Senator John Bricker proposed a constitutional amendment – the Bricker Amendment – that said in part: “Congress shall have power to regulate all executive and other agreements with any foreign power or international organization.” Dwight Eisenhower opposed Bricker’s effort certain that his control over foreign policy, and that of subsequent presidents, would be fatally compromised. When Bricker, who had been the Republican candidate for vice president in 1948 and was a pillar of Midwestern Republicanism, first proposed his amendment forty-five of forty-eight Senate Republicans supported the idea. Eisenhower had to use every trick in the presidential playbook, including working closely with Senate Majority Leader Lyndon Johnson, to eventually defeat Bricker and other conservatives in his own party.

A logical extension of McCarthy’s position in the early 1950’s was Barry Goldwater’s opposition in the early 1960’s to President John Kennedy’s ultimately successful efforts to put in place a nuclear test ban treaty outlawing atmospheric or underwater nuclear tests.

A test ban treaty was, Goldwater said, “the opening wedge to goldwaterdisastrous negotiations with the enemy, which could result in our losing the war or becoming part of their [the Soviets] system.” In Senate debate Goldwater demanded proof of the Soviet’s “good faith” and argued, directly counter to Kennedy’s assertions, that a treaty would make the world more rather than less dangerous. The treaty was approved overwhelmingly and has remained a cornerstone of the entire idea of arms control.

Later in the 1960’s, and over the profound objections of conservatives, the U.S. approved the Nuclear Nonproliferation Treaty (NPT) designed to prevent the expansion of nuclear weapons. Ironically, as Jonathan Chait notes, the NPT today provides “the legal basis for the international effort to prevent Iran from obtaining nukes.” But the idea was denounced at the time with William Buckley’s National Review saying it was “immoral, foolish…and impractical,” a “nuclear Yalta” that threatened our friends and helped our enemies.

When Richard Nixon negotiated the SALT I agreement, interestingly an “executive agreement” and not a treaty, conservatives worried that the United States was being out foxed by the Kremlin and that Nixon’s focus on “détente” with the Soviet Union was simply playing into naïve Communist propaganda. Congressional neo-cons in both parties, including influential Washington state Democrat Henry Jackson, insisted that any future arms control deal with the Soviets be presented to the Senate for ratification.

Republican opposition to international agreements is deeply embedded in the party’s DNA, going back at least to the successful Republican efforts to derail Senate ratification of the agreement Woodrow Wilson negotiated in Paris in 1919 to involve the United States in the League of Nations, end the Great War and make the world “safe for democracy.”

The GOP’s DNA Dates to Woodrow Wilson…

The most effective and eloquent opponent of that agreement was BorahIdaho Republican Senator William E. Borah who, it was said, brought tears to the eyes of Senator Henry Cabot Lodge when he spoke against Wilson’s ideas on the floor of the United States Senate on November 19, 1919.

Addressing treaty supporters, but really talking to Wilson, Borah said, “Your treaty does not mean peace – far, very far, from it. If we are to judge the future by the past it means war.” About that much the Idahoan was correct.

Without U.S. participation and moral leadership the League of Nations was little more than a toothless tiger in the two decades before the world was again at war, the League unable to prevent the aggression that ultimately lead to World War II. It is one of history’s great “what ifs” to ponder what American leadership in a League of Nations in the 1920’s and 1930’s might have meant to the prevention of the war that William Borah correctly predicted, but arguably for the wrong reason.

Jaw, Jaw Better Than War, War…

Many Congressional Republicans have spent months – or even years – chastising Obama for failing to provide American leadership on the world stage, and for sure the president deserves a good deal of criticism for what at times has been a timid and uncertain foreign policy. But now that Obama has brought the United States, Britain, France, Germany, the European Union and Russia to the brink of a potentially historic deal with Iran, the conservative critique has turned back to a well-worn line: a naïve president is so eager to get a deal he’ll sell out the country’s and the world’s best interests to get it. Ted Cruz and other Republican critics may not know it, but they are dusting off their party’s very old attack lines. Barry Goldwater seems to be more the father of this kind of contemporary GOP thinking than the sainted Ronald Reagan.

No deal is perfect, and doubtless some down through the ages have been less than they might have been, but the history of the last 75 years shows that presidents of both parties have, an overwhelming percentage of the time, made careful, prudent deals with foreign adversaries that have stood the test of time. In that sweep of recent American history it has not been presidents – Republicans or Democrats – who have been wrong to pursue international agreements, but rather it is the political far right that has regularly ignored the wisdom of Winston Churchill’s famous admonition that “To jaw-jaw is always better than to war-war.”

 

Bigness

An Old Notion Relevant Again

On the downhill side of the Gilded Age in American political and business life – that would have been in the late 1800’s – progressive reformers from Theodore Roosevelt to Woodrow Wilson to Louis Brandeis found fault with the idea and reality of a concentration of economic power.

Brandeis, a great legal advocate before he went on the U.S. Supreme Court in 1916, described the threat of economic concentration by a single, simple word “bigness.” Brandeis entitled one of his greatest works, published in 1913, Other People’s Money and one chapter in that book was called “The Curse of Bigness.”

“Size, we are told, is not a crime,” Brandeis wrote, “But size may, at least, become noxious by reason of the means through which it was attained or the uses to which it is put. And it is size attained by combination, instead of natural growth, which has contributed so largely to our financial concentration.”

Today it is almost an article of faith that “bigger is better,” but the early 20th Century focus on means and uses of economic concentration are just as relevant today as when Woodrow Wilson was in the White House.

Our political and regulatory system seems unable to address the “too big to fail” syndrome and the human abuses that can follow. Much of corporate America seems one big merger followed by another and meanwhile, Walmart, one of the biggest of the bigs, seems to be engulfed by a major foreign bribery scandal in Mexico, Rupert Murdoch’s vast media empire is now defending its political clout in Great Britain as Murdoch execs fend off criminal charges for violating privacy. Criminal charges have been leveled against a BP engineer involved in the Gulf oil spill. You could go on, but the situation is clear – too big to fail can also be too good to be true.

Idaho Sen. Frank Church – he served in the Senate from 1957-1981 – is remembered today primarily for his headline generating investigation of the Central Intelligence Agency in the 1970’s, but Church always considered another of his Senate investigations equally, if not more, important. As chairman of a subcommittee on multinational corporations in 1973, Church delved deeply into the practices, some of them corrupt, of some of the biggest, most powerful companies in the world.

Church’s work cast light on International Telephone & Telegraph’s involvement in the fall and murder of Chilean President Salvador Allende and Lockheed was exposed for its role in a bribery scandal in Japan. Lockheed’s CEO at the time admitted to spending millions on bribes to foreign officials and a Japanese prime minister went to jail in the resulting scandal. The entire chain of events led to passage of the Foreign Corrupt Practices Act in 1977, the U.S. law that Walmart may find itself on the wrong side of today.

Frank Church discovered in that long ago investigation that human nature, driven by an imperative to constantly expand and concentrate economic power has its dark side. In such a world corners get trimmed, ends justify means and we experience an Enron or we end up bailing out a financial institution that can only justify its continued existence because it’s too big to fail.

A thinking man’s conservative, New York Times columnist David Brooks, had a fascinating column this week in which, in a way, he came at this bigness issue from a novel angle. Brooks’ point was that a blind focus on destroying the competition – Brandeis might have termed it how businesses become always bigger – is the flip side of a lack of innovation. When the focus is on constantly and relentlessly growing, creativity goes begging. The need to be bigger inevitably trumps everything, including finding a better way to make a widget.

Brandeis argued a hundred years ago – his was the age of Standard Oil and the House of Morgan – that eventually bigness, that which “is attendant of excessive size,” is inefficient. Eventually, he wrote, “Decentralization will begin. The liberated smaller units will find no difficulty in financing their needs without bowing the knee to money lords. And a long step will have been taken toward attainment of the New Freedom [a reference to Wilson-era reforms in banking and business.]

It may well be in this age of globalization with a bank in Rhode Island tied to the fate of a housing development in Ireland that there is no going back from bigness, but there may be more than nostalgia in longing for a simpler, smaller time.

Frank Church, a liberal Democrat, helped expose the evils of bigness and concentrated power in the 1970’s, just as his role model in the Senate, William E. Borah, had done in the 1930’s. Borah, a Republican progressive, hated bigness, monopoly and concentration of power. He championed small business and decentralization and once said, “When you have destroyed small business, you have destroyed our towns and our country life, and you have guaranteed and made permanent the concentration of economic power, [which in turn ensures] the concentration of political power.  Monopoly and bureaucracy are twin whelps from the same kennel.”

I don’t know about you, but I long for a political leader willing to call bluff on concentrated power. Bigger isn’t always better, it may just be bigger.

 

FDR’s Great Blunder

As Court Showdown Looms, an Anniversary of Note

Two years ago in his State of the Union address, Barack Obama called out the Supreme Court of the United States for its ruling in the Citizens United case involving campaign financing.

With most members of the Roberts Court looking on from their seats in the well of the House of Representatives, Obama told the country that the Court had “reversed a century of law to open the floodgates for special interests—including foreign corporations—to spend without limit in our elections.”

With perhaps the exception of his reference to “foreign corporations” – it’s hard to tell the source of much of the new money flooding campaigns – Obama explained exactly what has happened in the subsequent two years. And predictably, the president was roundly criticized in the aftermath of the speech for an “unprecedented attack on the Court. Justice Samuel Alito, one of the five judges in the majority in Citizens, could be seen mouthing the words “not true.”

In retrospect, not only was the president right on the substance of his criticism of the Court – Obama did teach at one of the country’s great law schools – but he had the guts to deliver his critique right to the faces of those in the black robes who hold so much sway over the policy and priorities of American life. It was hardly an unprecedented attack, either, particularly in the context of an anniversary of, what I would argue, was a defining moment in the evolution of the modern U.S. Supreme Court.

Just over 75 years ago – February 5, 1937 to be precise – the president to whom Obama is so often compared and contrasted, Franklin D. Roosevelt, took a decidedly different tack with the high court he took issue with. FDR didn’t just criticize the justices, although he certainly did criticize, he attempted – and came reasonably close to succeeding – to fundamentally remaking the Court in his more liberal image. Roosevelt’s “court packing scheme,” as it quickly became known, turned out to be his greatest single blunder as president. It also presented the country with the greatest Constitutional crisis since the Civil War.

Now, with the Supreme Court poised to hear, in unusual detail, the arguments for and against Obama’s health insurance reform initiative – the Affordable Care Act – it’s worth reflecting on the history of the court over the last 75 years and considering what might have been and what has become.

The normally surefooted Franklin Roosevelt made misstep after misstep with his plan to enlarge the Court in 1937 and when his efforts at a judicial power grab finally ended he reaped the political whirlwind. Never before, after the court packing fiasco, would Roosevelt command a working majority in the Congress for his domestic agenda. With one ill-considered move, FDR squandered his massive 1936 re-election mandate – Democrats held 76 seats in the Senate after that election – he shattered the myth that he was politically invincible and, it seems, Roosevelt forever took off the policy table any effort by any president to “reform” the nation’s highest court.

Roosevelt’s tools in attempting to enlarge the Court were secrecy and subterfuge and each got him in trouble. With the encouragement of his Attorney General, Homer Cummings, FDR hatched a secret scheme to add one additional justice to the Supreme Court for each justice over 70 who refused to retire. He consulted with no one on the idea except his politically tone deaf attorney general and then sprung the idea on unsuspecting Congressional allies. They were first stunned and then outraged.

Roosevelt compounded his “born in secrecy” problem by dissembling about the real reasons behind his proposal. Clearly he wanted to liberalize a court that had come to be dominated by former corporate lawyers and Republican appointees, but he let Cummings peddle the fiction that he was trying to improve the Court’s efficiency. The “nine old men” on the Court had fallen behind in their work, it was alleged. That argument never gained traction and simply wasn’t true.

Had Congress adopted his audacious idea, Roosevelt could have immediately added six new justices to the Supreme Court, as well as a slew of other federal judges. The Supreme Court would have gone from nine members to 15 and, of course, the president would have the chance to appoint justices who held out the prospect of liberalizing the Court that had shot down so many of Roosevelt’s New Deal initiatives.

[On one particularly Black Monday in May 1935, the Court struck down three important New Deal initiatives, including much of the centerpiece of Roosvelt’s domestic agenda – the National Industrial Recovery Act.]

In a rare rebuff for Roosevelt, the Congress simply wouldn’t buy his court packing. Republicans, of course, rebelled, but so did many Democrats. Montana liberal Burton K. Wheeler, a fierce foe of concentrated power in government or the economy, was chosen to lead the Senate opponents of FDR. Ironically, Wheeler had been among the very first to encourage Roosevelt to seek the presidency having publicly done so in 1930. By 1937 Wheeler had enough of what he saw as Roosevelt’s accumulation of personal power and made common cause with Republicans like Idaho’s William E. Borah and Oregon’s Charles L. McNary to battle the president.

As the battle was fully joined in the summer of 1937, Wheeler collaborated with Justice Louis Brandeis, ironically the greatest liberal on the Court, to obtain a letter from the patrician Chief Justice Charles Evans Hughes. Hughes’ letter, quickly drafted over the weekend prior to Wheeler’s Senate committee testimony, completely demolished FDR”s argument that the Court was behind in its work.

Borah further complicated Roosevelt’s plans when he prevailed upon his neighbor, Justice Willis Van Devanter, one of the most conservative members of the Court, to strategically announce his retirement to coincide with the release of the Hughes letter. The combination was a classic political one-two punch, but Roosevelt still refused to compromise or fold.

The American Bar Association opposed Roosevelt, as did most of the nation’s editorial pages. Still, through the hot summer of 1937, Roosevelt soldiered on with his proposal, driving an ever deeper wedge into the Democratic Party. Roosevelt was offered a compromise. If he backed off, one or two additional members of the Court would quickly retire and he could have his more liberal appointees. He refused. Seeking another route to compromise, some senators suggested the president might get two or three new seats rather than six. He refused.

Even the 10-8 vote in the Senate Judiciary Committee against the president’s bill – the committee was dominated, of course, by Democrats – failed to move the president. Incidentally, Borah wrote much of the committee report; a report that has been characterized as one of the harshest denouncements of a presidential initiative in the history of the Senate.

Ultimately, it took a dramatic Senate tragedy to bring an end to Franklin Roosevelt’s biggest blunder. FDR’s loyal lieutenant, Senate Majority Leader Joseph T. Robinson of Arkansas, while no fan of the court packing plan, still believed that loyalty to “the boss” demanded that he try to get something passed in the Senate. Robinson worked himself into a lather debating the court bill and managing the president’s expectations and in the stifling mid-July heat in Washington – the days before central air conditioning – the Majority Leader grew red in the face, announced he was done for the day and stormed off the Senate floor.

Senator Royal Copeland of New York, a physician, had warned Robinson that he was working too hard and that no bill was worth killing himself over. Robinson retreated to his apartment close to the Supreme Court building to rest. On the morning of July 14, 1937, his maid found the gruff, but much respected and well-liked Senate leader, dressed in his pajamas and slumped on his bathroom floor. Robinson was dead of heart attack. Nearby he had dropped his copy of the Congressional Record. Robinson had been reading the debate over the court bill.

Joe T’s death stunned the Capitol, in part because it was an open secret that FDR had promised the loyal Robinson the first vacancy on the Court, even though as a conservative southern Democrat Robinson was unlikely to become a liberalizing force on the Court. Senators took to calling Robinson, Mr. Justice, as they anticipated that any day FDR would name Joe to the high court.

Roosevelt hesitated. Had he made that appointment it might well have paved the way for a compromise on the court bill, or at least presented the president with a face saving exit strategy. But Roosevelt took no action and, with Robinson dead, hard feelings toward the president grew even worse in the Senate. Wheeler even went so far as to claim God himself seemed opposed to packing the court.

On the train that carried most of Robinson’s colleagues back from his funeral in Little Rock, Vice President John Nance Garner counted noses for the White House. When ol’ Cactus Jack arrived back in Washington he went directly to see Roosevelt and told him that he was beaten. The Senate when it voted, Garner said, would defeat Roosevelt’s plan to expand the Court. FDR was stunned. He continued until that moment to think that he could work his will on the Congress as he had so many times before. He reluctantly asked Garner to negotiate the best exit possible.

Garner went to Wheeler’s office in what is now the Russell Senate Office Building and told the Montanan that he “could write his own ticket” with regard to the court bill. As legend has it, the two old pols had a drink of bourbon and decided that the bill would be recommitted to the Judiciary Committee, in effect killing the proposal. Seventy senators eventually voted to recommit the court bill and Roosevelt had lost an epic battle over the Supreme Court. The whole contest had lasted for a mean 168 days.

Had FDR been willing to compromise, even a little, he might have modestly enlarged the Supreme Court in 1937 and we can only speculate as to what the long-term impact of that political act might have been. It seems safe to conclude that had a political compromise over the makeup of the Court occurred we would think somewhat differently about the Supreme Court today.

Roosevelt would later argue that he lost a battle over the Court, but eventually won a war and there is truth in that statement. Alabama Sen. Hugo Black was soon appointed to fill Van Devanter’s seat. Black, it was widely noted, had supported the court packing legislation and opposed the vote to recommit in the Senate. Black turned out to be one of the Court’s great liberals and a staunch defender of civil liberties. In time, Roosevelt also appointed Justices like William O. Douglas and Felix Frankfurter, who helped define American jurisprudence until the time of the Ford Administration.

Perhaps in an even more important way, Roosevelt’s efforts to expand the Supreme Court 75 years ago removed any possibility that any president could realistically hope to change the court simply because he disagreed with its rulings. It’s unthinkable today that a Roosevelt-like idea could be seriously considered. Instead, the fights over the direction and role of the Supreme Court are fought out each and ever time a president nominates a new justice. These confirmation fights, increasingly nasty and partisan, are still no where near as nasty as the 75 year ago fight over whether the Supreme Court would be fundamentally changed.

The great historian William Leuchtenberg has written: FDR’s [court proposal] generated an intensity of response unmatched by any legislative controversy of this century, except possibly the fight over joining the League of Nations. Southern Democrats feared that an expanded liberal Court would give rights to blacks; progressives saw an assault on the branch responsible for protecting civil liberties; moderates who had always mistrusted Roosevelt now had proof of his treachery.”

It wasn’t as if Roosevelt hadn’t been warned. At one point Wheeler told the president that with many Americans the “Supreme Court is a religion,” and, Wheeler said, it is never smart to get in the middle of a religious fight.

This much seems certain, when the current Supreme Court issues its decision on the health insurance reform law later this summer there will, no matter how the decision goes, both glee and gloom. Still, when the smoke clears, the country, the Congress and the president will accept the verdict of the Court. Some folks, grumbling all the way, will not like the verdict, but just like the controversial decision that ended the 2000 election – Bush v. Gore – we’ll grumble and move on.

We don’t always like what we hear from the pulpit at church, but Burt Wheeler had it right in 1937. The Court may not always be right, but we accept the higher authority nevertheless.

In a way, we can thank Franklin Roosevelt and his furious fight exactly 75 years ago for that now enduring feature of American political life.

 

2012 Wildcard

Elections and the Court

When the Obama Justice Department announced last week that it had asked the United States Supreme Court for an expedited review of the Affordable Care Act (ACA) – Obamacare, health care reform, etc. – the government’s lawyers confidentially predicted that the current court would uphold the law. In making that claim the Justice Department cited several precedents in our history where the Supreme Court has reviewed and upheld once controversial laws that have now become established features of American life.

“Throughout history,” the Department said in a statement, “there have been similar challenges to other landmark legislation, such as the Social Security Act, the Civil Rights Act and the Voting Rights Act, and all of those challenges failed. We believe the challenges to the Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.”

The Justice Department release represents more than a little wishful thinking and an even larger dose of selective historical memory. At least once before, in a case that has some striking parallels to what is unfolding with the Affordable Care Act, the Supreme Court considered and struck down major provisions of a Democratic administration’s domestic agenda. It happened in 1935 and the political fallout, the subsequent election campaign and the president’s policy response produced the greatest Constitutional confrontations since the Civil War.

Franklin Roosevelt signed the National Industrial Recovery Act (NIRA) into law on June 16, 1933. The law created, among other things, the National Recovery Administration, symbolized by the “blue eagle” that appeared on signs in store windows, in propaganda-like newsreels and in vast demonstrations staged in major U.S. cities.

The NIRA granted to the president vast powers – unprecedented really – to promulgate industrial codes of fair competition. The effect was to form industrial cartels that were not suppose to engage in price fixing, but came very close to doing just that, as well as turning the capitalist concept of competition on its head.

The code provision had been controversial, particularly in the Senate, where some legislators who abhorred “monopoly” – senators like Borah of Idaho and Wheeler of Montana – were concerned the law essentially did violence to the Sherman Antitrust Act, a law on the book since 1890.

The NIRA also established rights to collective bargaining, regulated working conditions and some wages and, in a separate section, created the Public Works Administration (PWA), the major infrastructure investment vehicle of the New Deal.

There were many problems administering the complex NIRA and the inevitable legal challenges began almost immediately. Eventually on May 27, 1935, a unanimous U.S. Supreme Court ruled major parts of the NIRA unconstitutional. Roosevelt was stunned and outraged, even though FDR’s Justice Department, like Barack Obama’s Justice Department with the health care legislation, had tried to pick the case and the timing to take the issue to the nation’s highest court.

Writing for a united Court, that like today’s Court frequently found itself sharply divided between conservatives and liberals, Chief Justice Charles Evans Hughes, zeroed in on Constitutional problems with two features of the law that FDR considered the centerpiece of the domestic agenda he hoped would lift the economy out of the Great Depression. Like the arguments around the Affordable Care Act, the issue in 1935 was the Commerce Clause of the Constitution.

As Hughes wrote, “If the commerce clause were construed to reach all enterprises and transactions which could be said to have an indirect effect upon interstate commerce, the federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal Government.” Sounds a lot like the arguments over the health care bill’s individual mandate provision.

The ruling in the Schechter Poultry Corporation case that brought down the NIRA is today generally considered a very narrow 1930’s interpretation of the Commerce Clause and FDR certainly thought so. He famously complained to a room full of reporters gathered in his office that the Supreme Court had adopted a “horse and buggy” view of the nation’s economy and particularly of interstate commerce. The Commerce Clause is at the heart of the ACA debate because critics charge a central federal government has no business mandating that individuals must purchase health insurance. We’ll see. 

It would be unfair to stretch the parallels between 1935 and 2011 too far and it is possible the Supreme Court my opt for an artful dodge to avoid deciding the health care case before next year’s election. It is also true that we live in vastly different times, although the politics around the Great Depression feel a good deal like the politics around the Great Recession.

Since 1935, the Court has vastly expanded our understanding of what constitutes interstate commerce and the ruling Roosevelt disliked so much came more than a year before he sought re-election to a second term. Barack Obama, by contrast, may get his ruling on the Affordable Care Act smack dab in the middle of his re-election effort and, while the NIRA was controversial it had little of the polarizing political impact of health care.

After his initial “horse and buggy” zinger had been delivered, Roosevelt generally avoided mentioning the Court, while he privately seethed about the “nine old men” who had dismantled his handiwork in the midst of a national economic crisis. Once safety re-elected in 1936 Roosevelt came down on the Court with a ton of bricks, serving up his ill-fated plan to “pack the court” by adding up to six new justices who would presumably liberalize a reactionary court. The Congress refused to go along with such an overreach and Roosevelt suffered a massive defeat right on the heels of winning a second term in a landslide.

One way or the other, Obama looks to get his chance to be pleased or disappointed by the Supreme Court in the middle of a high stakes campaign season. Most Court analysts say they count four votes in favor of upholding the controversial law and four against. Obama may think about issuing a quick invitation for a golf game to Justice Anthony Kennedy. By all accounts he’ll decide the fate of the Affordable Care Act.

There is one more historical footnote related to the 1935 case that, if he’s thought about it, might well give former law professor Obama some political heartburn. In 1935 the most liberal member of the Supreme Court was the venerated Justice Louis Brandeis, who history records as one of the all-time great justices. Roosevelt was stunned when the man he called “Isaiah” ruled against him.

Robing up before the Court delivered its decision on the NIRA, Justice Brandeis told Roosevelt aide Tommy Corcoran, “This is the end of this business of centralization, and I want you to go back and tell the president that we’re not going to let this government centralize everything.”

 

The Importance of Being Borah

borahA Senator Worth Remembering

I’ll be speaking on Wednesday night at the Main Boise Library on the life and career of Idaho’s longest serving U.S. Senator, William E. Borah. That’s him, third from the right, in a photo taken in Sandpoint. I’m going to guess is was in the middle-1920’s.

The Borah talk is one I have put together as part of the Idaho Humanities Council’s Speakers Bureau. I’ll talk about Borah’s career and lasting importance, but also about his view of the Senate in our form of government. Borah was a progressive Republican, somewhat in the tradition of Theodore Roosevelt, but he was also fiercely independent and more than willing to buck his own party.

I’ve been reading and writing about Borah for a long time. In fact, I began his journey into blogland more than a year ago with a piece on his approach to Supreme Court appointments. I continue to find him a fascinating character. And, of course, there is that business with Alice Roosevelt Longworth.

The Library event is a 7:00 pm in the Main Auditorium. Staff at the Boise Library have also created a great Borah bibliography of books, articles and writings about the man known as “the Lion of Idaho.”

 

Room for a Borah?

BorahToo Independent for Today’s GOP

Arguably William Edgar Borah – the Lion of Idaho – is the most famous and influential politician Idaho has ever produced. He served longer in the U.S. Senate than anyone from Idaho ever has, was a genuine international figure and regularly confounded what he called “the old guard” in the GOP because of his independence.

One wonders what Bill Borah would have thought of some planks in the Idaho GOP platform adopted last weekend in Idaho Falls? I wonder how many of the delegates know, or care, that Borah fought hard for, indeed was the floor sponsor of, the Constitutional amendment – the 17th Amendment – that changed the way U.S. Senators are elected. Idaho Republicans are now on record favoring repeal of Borah’s handiwork and returning to the pre-1913 days when state legislators elected Senators.

Borah was never a party regular. A reporter made the observation in the early 1930’s that there were four distinct political factions in the United States – Republicans, Democrats, Progressives and William E. Borah.

While Borah never broke openly with the national party, he did refuse to endorse William Howard Taft in 1912 – Borah was close to Theodore Roosevelt – and he couldn’t bring himself to back Alfred Landon in 1936. Pressed by GOP leaders to make a series of radio talks to help Landon, the Kansas governor, in his uphill fight against Franklin Roosevelt, Borah refused. His biographer, Marian McKenna, wrote that “he warned Republican leaders that if they force him to take a stand publicly…he would let it be known that he preferred Roosevelt.”

Borah might have trouble with the “loyalty oath” Idaho Republicans now say will be required of GOP candidates. I doubt he would have approved of the party’s effort to encourage long-time GOP local official Vern Bisterfeldt to withdraw as the party’s candidate for Ada County Commissioner because of his past support for some Democratic candidates. In 1912 Borah challenged state GOP leaders to read him out of the party if they could. They couldn’t.

As to the 17th Amendment – the direct election of U.S. Senators – I think it not an overstatement to say that Idaho’s most famous Republican would have been appalled that modern day GOP adherents would openly call for its repeal.

McKenna wrote in her 1961 biography about Borah’s leadership on the issue: “It was an excellent public service, but few know or remember Borah’s part in it. The fight had been long, cutting across party lines and pitting conservatives against progressives. Borah found this groping of the electorate toward a truer and more efficient democracy most heartening.”

Asked years later if the change in how Senators are elected had improved the Senate, Borah had no doubt. He trusted the popular will. “What judgment is so swift, so sure and so remorseless,” he said, “as the judgment of the American people?”

There were two principle reasons Borah favored the election reform, one very personal another moral. He knew that his Senate career would likely be a short one if he couldn’t appeal directly to the voters and he was genuinely disgusted by the corruption involved when legislators elected Senators.

One of the most celebrated corruption cases involved William Andrews Clark of Montana, but Borah was more familiar with a corrupt 1909 Illinois election involving William Lorimer. As exposed by the Chicago Tribune, Lorimer won his Senate seat thanks to a $100,000 slush fund gathered by Illinois business interests who used the cash to bribe state legislators. The Senate eventually declared Lorimer’s election invalid and Borah used the case to press for his reform.

In the 1930’s, Borah remained fiercely independent and above his party. He supported much of Roosevelt’s New Deal, made common cause with Democrats – Montana’s Burton K. Wheeler, a Progressive Democrat, was a close friend and collaborator – and lamented the GOP drift to the right. In his one rather half-hearted run for the White House in 1936, Borah told a campaign crowd: “If those now in control [of the Republican Party] would wake up some morning and find that I had been nominated for President they would groan, roll over and die.”

McKenna summed up his individualism this way: “He was really an independent with a mystic loyalty to the party which never seemed to live up to the ideals he conceived for it. He was a Republican by inheritance and a Democrat by inclination. He tried to stand for the best in the two parties and was inevitably accused of straddling…it took courage for him to wage an unending battle against the old guard in the party which he really loved.”

Mark Twain once said that, “in religion and politics, people’s beliefs and convictions are in almost every case gotten at second hand, and without examination.”

Perhaps political party platforms should be seen in the same light, and, of course, Democrats come up with crazy notions and put them in their platforms, too. Still, some of the positions Idaho Republicans now endorse ignore some of the the country’s history, not to mention the history of the most famous Republican Idaho ever produced.