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    Mr. Madden and Mr. Burke

    By Paul Y. Anderson

    The Nation
    February 12, 1938
    Vol. 146, No. 7, p. 175-176

    Washington, February 7

  1. A termite's life is not a glorious one, and last week was full of disappointment for those seeking to undermine the Wagner Act. The Supreme Court, still flushed and tremulous as a maid at morn over its new vision, unanimously held that a Federal District Court has no power to enjoin the administrative processes of the Labor Relations Board. That twenty such injunctions have been issued is eloquent of two things, namely, the vast scope and organized character of the attack on the law, and the low estate of judicial discretion in the district courts. On the latter manifestation Justice Brandeis commented sharply in delivering the court's opinion. The luckless brethren below have an excuse—for what it is worth. They may point out that a committee consisting of fifty-eight of the most highly perfumed lawyers ever assembled under the Liberty League tent concurred in holding the act unconstitutional. But that, alas, happened before the Supreme Court encountered a light somewhere along the road that leads to Damascus or Waterloo. The moral seems to be that free legal advice is not always cheap.

  2. Mention of cheapness leads us unerringly to the latest ill-starred attack on the Labor Board—that launched by Edward Raymond Burke of Nebraska. During the fight over the Supreme Court plan the Senator attracted the attention of the press gallery sufficiently to have the sobriquet "Throttlebottom Burke" bestowed on him, but in recent months his publicity has languished, and he set out to remedy the situation. (By many of his colleagues the Senator is regarded as being his own, if nobody else's, candidate for President.) Even Burke is familiar with the weakness of certain newspaper publishers. Accordingly, he loosed a series of blasts at the board, charging it with, among other crimes and misdemeanors, violating "the freedom of the press." He demanded an investigation and insisted that it be conducted by the Senate Judiciary Committee, of which he is a member.

  3. The denouement took place when Board Chairman Malden appeared before the committee and proceeded to deal with the Burke charges seriatim. Before he concluded, enough material had been removed from the Senator's shirt to stuff a dozen heavy-duty Throttlebottom mattresses. I shall not dwell on the painful scene, but a few high-lights will illuminate it. Burke had charged the board and its staff with being "thoroughly incompetent." Madden showed by the record that of ninety-six injunction suits filed against the board, ninety-six have been decided in its favor; that in nearly all of the 162 cases decided by the board, the employer had contested its jurisdiction, but in no single case had the Circuit Court of Appeals held that the board exceeded its jurisdiction; and that this record was made despite the enormous difficulties of administering a new law in the complex field of labor relations. Burke charged the board with favoring the C. I. O. over the A. F. of L. Madden showed that in twenty cases where the two were in conflict before the board, the A. F. of L. won fourteen decisions and the C. I. O. six. Burke had accused the board of intimidating local public officials, mentioning the mayors of Lumberton, North Carolina, and Johnstown, Pennsylvania. Madden cited the record of evidence that Lumberton's mayor led a mob to threaten a union organizer, and asked why the Johnstown mayor, a former bootlegger, had not sought to answer testimony to the effect that during the steel strike he received $30,000 in cash from an official of the Bethlehem Steel Company.

  4. The cases in which the "freedom of the press" was alleged to have been menaced again were those of the Daily Press,L of St. Mary's, Pennsylvania, and Mill and Factory. In both instances reprints from those publications of articles attacking the unions were circulated among workers. The board simply sought evidence to show the employers had caused the articles to be printed and circulated in violation of the law. Madden couldn't understand why an editor who possessed such evidence should not be under the same obligation as any other citizen to appear and produce it, and neither can I. For years it has been obvious to most adults that editors and publishers who continue to invoke "freedom of the press" to cloak special privileges and immunities for themselves are doing more than anyone else to discredit and destroy legitimate freedom of the press.

  5. Needless to say, poor Burke's little flier went into a tailspin, and at the latest sitting he was urging that the inquiry be transferred to the Committee on Education and Labor, although he had previously opposed that very move. This prompted the other Nebraska Senator, Norris, to remark on the predicament of a lawyer "who seeks a change of venue when he sees he is losing his case." One question remains to be cleared up. Was it by sheer coincidence that Burke's list of charges bore such a striking resemblance in phraseology to those recently made public by an employers' organization?

  6. The President has now been privileged to look into the minds of the "little business men" whom he so fondly believed to be on his side, and it may be hoped that he has been properly instructed and edified. A cynic might have told him beforehand that the only difference between "big" and "little" business is one of size, but the cynic would have been wrong. The truth is that where matters of government policy are concerned the Sloans and Lamonts are ardent New Dealers compared with their "little" brothers. What Tom Girdler says privately about the Wagner Act was accurately reflected in the resolutions of the alley manufacturers and village merchants. For the "little fellow" halfway measures will not do. He wants lower taxes and a balanced budget. He wants the help put in its place. He wants Ickes and Jackson muzzled or, preferably, court-martialed. He wants the income tax extended to the very poor on the theory, perhaps, that quick death is a boon to the starving. If the meeting of "little men" succeeded in anything it was in demonstrating why they are little. They are actuated by the same profit native which actuates their more successful competitors, but they do not pursue their ends so shrewdly. If Roosevelt still needed to learn that his strength lies in the support of the great majority who have no business except their jobs, this lesson should teach him.

  7. Slightly more than a year has passed since the President's court plan was submitted to Congress, and it is hardly an exaggeration to say that the year has been wasted in a continuous filibuster. The Senate fight on the plan was a filibuster which consumed nearly all of last session. Virtually nothing was accomplished during the special session, and the present session to date has been wrecked by the filibuster against the anti-lynching bill. This failure to function is akin to that which led to the overthrow of democratic governments in Europe, yet the very people who are quickest to yell "dictatorship" at the Administration are the same ones who find much to praise in the conduct of a Congress which has been an example of ineptitude and futility. What they are doing is to aggravate the very danger they profess to fear. By hamstringing Roosevelt's efforts to achieve such domestic reforms as governmental reorganization and wages-and-hours legislation they supply him with new reasons for adopting an aggressive foreign policy—a course in which he requires little encouragement. All of which is thoroughly characteristic of the complicated stupidity of the opposition. When they wake up to find themselves waving flags and calling on the rest of us to "stand by the President" they won't even stop to wonder how they got that way.