Traitor to His Class: The Privileged Life and Radical Presidency of Franklin Delano Roosevelt (87 page)

Lorena Hickok had rooted for the NRA from the start. But her honesty as a reporter compelled her to acknowledge its shortcomings. “Oh, I’ve kidded myself right along, trying to believe that the codes were working, at least in the big industries—that the textile people, for instance, were complying probably to the extent of 60 percent,” she wrote Hopkins in the spring of 1934. “But I wonder. I’ll bet you right now that 99 percent of American big businessmen are trying to beat them and succeeding. And the little fellows aren’t even pretending to live up to them. They can’t. The whole damned outfit are simply grabbing everything they can for themselves out of improved business stimulated by Government priming and public confidence in the President. They’re not contributing anything.”

The perception of wide-scale cheating encouraged critics who had questioned the advisability or feasibility of the NRA from the outset. William Randolph Hearst lashed the program as “absolute state socialism” and contended that the initials really signified “No Recovery Allowed.” Walter Lippmann asserted, “The excessive centralization and the dictatorial spirit are producing a revulsion of feeling against bureaucratic control of American economic life.”

Hugh Johnson answered the critics, most vigorously. “Men have died and worms have eaten them, but not from paying human labor thirty cents an hour,” he declared. On a separate occasion he likened the recalcitrant to mobsters. “Al Capone was a poor ignorant Sicilian piker next to those rugged individualists who wanted to prolong the dark ages of human relations.” Johnson turned to the Bible to castigate code-cheaters. “We all know the possibility of an Iscariot in every Twelve,” he said. “Even Judas survived for a season—and then hanged himself for shame.”

The president couldn’t fault Johnson’s enthusiasm, but the NRA chief’s behavior became a problem. His drinking may or may not have contributed to his evocative phrasing, but it was no secret among the Washington press corps, who conducted a Johnson self-destruction watch. His assistant, Frances Robinson, had to cover his lapses increasingly often, explaining why her boss was absent or looked so dreadful. He clung to her—figuratively and perhaps otherwise. Meaning to be complimentary, he described her as more than a secretary, which naturally prompted questions regarding how much more. When Johnson complained that these questions were “hitting below the belt,” the speculation simply increased.

Roosevelt finally concluded that Johnson had to go. He took the step reluctantly, fully aware, as Arthur Krock put it, that Johnson was the “complete and perfect buffer”—the one who could be counted on to distract the critics of the president and his closest advisers by saying something outrageous. “When the air around them seemed full of missiles, the General would come along with an incendiary speech to a public audience or a colorful string of threats to a group of stubborn businessmen,” Krock explained. But by the autumn of 1934 Johnson’s erratic behavior became too much of a distraction, and Roosevelt let him know he had to resign.

It was a tearful parting. Two thousand people jammed the auditorium of the Commerce Department where Johnson bade his farewell. Some were NRA loyalists wishing to hear their chief’s final words; many were voyeurs wondering if Johnson would detonate going out the door. The thrill seekers were disappointed. Johnson lavished praise on the NRA staff: “You can treasure in your hearts your part in as great a social advance as has occurred on this earth since a gaunt and dusty Jew in Palestine declared, as a new principle in human relationship, ‘The kingdom of heaven is within you.’” He had expected to outlive his usefulness; the only thing left was to exit gracefully. “The last words of Madame Butterfly, engraved on the haft of her samurai dagger, express my philosophy about this whole business: ‘Con onor muore chi non puo serbar viat con onore.’ Which means roughly: ‘To die with honor when you can no longer live with honor.’”

Johnson’s departure solved Roosevelt’s immediate NRA problem but not the deeper question of industrial planning. From the start there had been confusion as to how long this shotgun partnership of government, business, and labor was supposed to last. Was it an emergency measure, to be phased out as the economy revived? Or was it a long-term undertaking, a permanent transformation of the American political economy? Roosevelt and the drafters of the Recovery Act deliberately fudged the issue by giving the NRA a two-year charter. Two years had seemed an eternity in the frantic atmosphere of the Hundred Days, and it calmed critics who wondered what would become of American free enterprise. But twenty-four months wasn’t long at all in terms of industrial planning, and the uncertainty about the NRA’s future undermined its effectiveness. Businesses that didn’t like it could hope to drag their heels till it expired, and the friction made the expiration more likely.

The NRA’s defenders predicted baneful consequences should the agency die. Ray Moley, no longer on the administration’s payroll but still a supporter of the New Deal, declared that there was no returning to the bad old days of unbridled competition. “We must keep the NRA going,” he said. “Industrial laissez-faire is unthinkable.” The AFL’s William Green concurred. “It is unthinkable on the part of labor that we should go back, after having taken such a forward step in economic planning,” the union boss asserted. John L. Lewis and the United Mine Workers remained convinced that the NRA was essential to the welfare of the working classes; the UMW journal called the agency’s establishment “the greatest victory for labor that ever was achieved.”

Roosevelt recognized the liabilities the administration incurred by keeping the NRA alive, but he judged these smaller than the costs to the country of letting it die. “We must continue to protect children, to enforce minimum wages, to prevent excessive hours, to safeguard, define and enforce collective bargaining,” he told a Fireside Chat audience shortly before the NRA’s charter was due to expire. He contrasted the current public attitude with the mood that had existed when he took office, when “individual self-interest and group selfishness were paramount in public thinking.” The mindset of the nation had changed. “More and more people, because of clearer thinking and a better understanding, are considering the whole rather than a mere part relating to one section, or to one crop, or to one industry.” This was a major advance for democracy. The work must continue, and so must the NRA.

C
HARLES
E
VANS
H
UGHES
interpreted things differently. Hughes had come within a whisker of being the last bearded president; his narrow, delayed defeat by Woodrow Wilson in 1916 kept the progressive movement alive for another few years and kept Franklin Roosevelt’s career on track. Hughes’s work as secretary of state during the 1920s—as well as an earlier stint as associate justice of the Supreme Court, from which he had resigned to run for president—recommended him to Herbert Hoover, who appointed him chief justice in 1930.

The NRA was destined to come before Hughes and the high court. For more than a century the court had been ruling on the extent to which government might legitimately interject itself in the workings of the economy. The Marshall court of the early nineteenth century had defined the nature of contracts and defended the commerce clause of the Constitution against state intrusion; the Republican court of the late nineteenth century had limited the applicability of antitrust legislation. During the Progressive era the court reversed itself on antitrust—mandating the breakup of Standard Oil, for instance—and delineated the degree to which the government might limit working hours in the interest of workers’ health and welfare. The strongest and most persuasive voice on the Progressive-era court in favor of letting government look out for workers was Louis Brandeis, appointed by Wilson in 1916 and ever since an advocate of judicial experimentation in tempering the excesses of capitalism. Although Brandeis was personally skeptical of big government, he believed that the courts ought normally to defer to the legislature in matters of political economy. By trial and error Congress could discover the optimal balance between public welfare and private interest.

The NRA was the grandest experiment in political economy Brandeis, Hughes, or any of the other justices had ever encountered. Even the drafters of the Recovery Act worried about its constitutionality. Two issues were most problematic: whether the federal government could intrude so egregiously upon the private sector as the NRA codes allowed, and whether the intrusion, if constitutional, should be directed by the legislative branch or the executive. The case that tested the NRA arose in Brooklyn, where the Schechter brothers bought and sold chickens. The poultry business presented formidable obstacles to the NRA code makers, comprising thousands of small firms operating at the intersection of agriculture and commerce. But eventually a code was pieced together, and Roosevelt approved it in April 1934. Schechter Poultry, like many other small operators, considered the constraints of the code illegitimate and oppressive. The Schechters refused to accept the code and went about their affairs much as before. Their competitors complained, forcing the government to take note. Had the Schechters’ violations involved only maximum hours and minimum wages, they might not have attracted the attention they did, but the brothers were alleged to have broken a rule about what constituted a healthy chicken fit for human consumption. Selling sick chickens was sure to make these small businessmen less sympathetic as defendants, and the feds moved in and arrested them.

They were convicted at trial, and an appeals court upheld the conviction. The Supreme Court, which was looking for a test of the NRA, agreed to review the case. Everyone understood the momentousness of the proceedings. If the NRA was sustained, Roosevelt’s grand experiment in government planning for the economy could go forward; if it was struck down, the country would be thrown back on the rules and expectations of the Hoover era. Donald Richberg, the acting chairman of the National Industrial Recovery Board, special assistant to the attorney general, and a seasoned Supreme Court lawyer, took a chair on the government’s side and presented the case for the NRA. “The NRA law was enacted for the purpose of checking the progressive destruction of industry, to make possible an orderly advance by industry instead of a disorderly retreat,” he said. The depression had provoked a disastrous collapse in demand and prices, with catastrophic effects on wages and employment. Congress had wisely stepped in, under the authority granted it by the commerce clause of the Constitution. Critics of the NRA complained that the industrial codes often involved price fixing, which injured consumers and violated at least the spirit of antitrust laws; Richberg explained that price fixing wasn’t involved in the poultry code or the current case. The fixing of wages and hours
was
involved, but Richberg contended that such action was necessary to restore order to the poultry industry—as it was necessary in other industries. If Congress could not stop the “vicious cycle of wage-cutting,” Richberg declared, “then it is impotent indeed.”

Joseph Heller, speaking for the Schechters and all the opponents of the NRA, didn’t challenge Richberg and the government on the broad questions of government planning for the economy, but he did question whether the commerce clause applied in the present case. Congress was authorized to regulate interstate commerce, Heller told the justices, but the Schechters did business only in New York. To be sure, some of the chickens they purchased were hatched elsewhere, but by the time the Schechters acquired them they were naturalized New Yorkers, in effect.

To illustrate the picayune character of the poultry code, Heller noted that one of the violations charged against the Schechters was their failure to observe the standards of “straight killing.” He paused to let the justices inquire what straight killing was. A court reporter described Heller’s answer: “He went into a long, detailed, and at times excited description of the process that sent the usually solemn justices into gales of laughter. One after another took the cue and prodded him with questions until it was entirely clear that ‘you have got to put your hand into the coop and take out whichever chicken comes to you first.’” This was to prevent the chicken grabber from favoring one customer over another.

“And it was for that your client was convicted?” Associate Justice James McReynolds asked.

“Yes, and fined $5,000 and given three months in jail,” Heller replied. Heller went on to explain that if a customer wished to purchase half a crate of chickens, he had to divide the crate physically in half and take whatever chickens happened to be in that half. Associate Justice George Sutherland asked what would happen if the chickens all huddled into the other half. Heller conceded that that would be a puzzler. “The court joined in the laughter that followed,” the reporter wrote.