Chapter Three: The Lion in Winter: Borah and the Later New Deal
Perhaps due to his loss in the Republican primaries, perhaps due to his advancing age and weakening health, William E. Borah would never again attain the prominence he enjoyed during Roosevelt's first term. Even when he still chose to combat the centralizing tendencies of the President's liberal thought, he relied less upon his masterful oratory and more upon an emerging conservative congressional coalition.1 As the Thirties waned and the skies darkened over Europe, Borah became a shadow of his former public self. Either due to infirmity or distraction, he eventually had a hand in burying his own public philosophy.
The comity of 1935-36 between Roosevelt and Borah burst into smoldering resentment soon into FDR's second four years, primarily due to what became known as the President's "court-packing" plan. Increasingly frustrated by the Supreme Court's systematic dismantling of New Deal programs and emboldened by his public support in the 1936 election, Roosevelt devised a plan early in his second term to remedy the conservatism of the current Federal Judiciary. On February 5, 1937, he proposed a bill by which he, the Executive, could appoint a new Supreme Court justice for every judge over seventy years of age. Under this system, FDR could immediately appoint six new judges, nominally to ameliorate the problem of "insufficient personnel with which to meet a growing and more complex business" but in actuality to fashion a pro-New Deal Supreme Court "with a present-day sense of the Constitution."2
Needless to say, Borah, still a solemn believer in Madisonian checks and balances, was livid. Yet, his carefully crafted response didn't match the public vitriol of his 1935 remarks, when, after the Schecter decision, New Dealers like Rexford Tugwell and Hugh Johnson had deemed the Supreme Court an outdated "ox-cart system" of government. Although he himself had declared the Court an "economic dictator" in the late twenties, Borah went before a national radio audience in 1935 and decried Roosevelt's men as "chirping satellites" without the wherewithal to create constitutional legislation.3 "The ox-cart should and will have a high place at the bar of history," Borah had warned New Dealers eager to subvert the independence of the Judiciary.4
Now, as Roosevelt staged a major legislative attack upon the court system, an older Borah allowed himself only a few derisive quotables in opposition to the bill. When Roosevelt invited the Supreme Court to dinner, Borah declared it reminded him "of the Roman Emperor who looked around his dinner table and began to laugh when he thought how many of those heads would be rolling on the morrow."5 When the President attempted a compromise plan by which only two new judges would be appointed to the court, Borah stated emphatically, "Two are as bad in principle as six."6 Rarely in the Roosevelt years would Borah be so at odds with the President -- it was during the time of the court-packing plan that Borah felt compelled to state that FDR would "destroy our form of government."7
Yet, Borah chose not to stage one of his usual solitary rhetorical blitzes against the proposed legislation. Rather, he uncharacteristically worked behind the scenes to forge a congressional coalition of conservative Republicans and moderate Democrats against the plan. In particular, Borah worked closely with more conservative Republican leaders, namely Senators Arthur H. Vandenberg of Michigan and Charles L. McNary of Oregon, in order to defeat the measure. As Vandenberg recalls the day after the court-packing plan was announced, "Borah, McNary, and I had a conference in Borah's office at 11 o'clock. Borah is prepared to lead this fight; but he insisted that there is no hope if it is trademarked in advance as a 'Hoover fight' or a 'Republican fight'...the general agreement is that Republicans shall stay in the background for a week or ten days and let the revolting Democrats make their own record."8 As Kansas Republican Clifford Hope put it, "If we can keep...the old guard Republican leaders out of the picture, the President is licked."9
In the meantime, Borah cultivated his personal relationship with Senator Burton K. Wheeler, a Montana Democrat who had only recently broken with Roosevelt due to personal differences, in order to strengthen bipartisan ties against the bill. The Idahoan made a point of calling his Democratic colleague every night of the court feud. Moreover, he introduced Wheeler to Frank Gannett, the publisher who had financed most of Borah's 1936 campaign. Soon, Wheeler was coordinating efforts against the court-packing scheme with Gannett's National Committee to Uphold Constitutional Government, a well-financed "nonpartisan" organization which distributed over ten million pamphlets against the plan, much to Roosevelt's chagrin.10
Indeed, sensing the anti-Roosevelt consensus coalescing around prominent Democratic senators while an unnatural quiet emanated from Borah's side of the aisle, FDR began privately to lose his temper. Writing to Ambassador William Dodd, the President decried his "Democratic 'friends'" and "a certain type of false liberal like Borah." According to FDR, they "do not at all like the idea that I may keep on making speeches and radio talks for the next three and a half years. They think that a second term President should be duly grateful and retire into innocuous desuetude."11 After two months of increasingly frustrating political stalemate, Roosevelt took his own advice and retired to the Gulf of Mexico for a fishing trip.
While the President attempted to relax and the chastened Supreme Court reconsidered its opposition to the New Deal, Borah went into action. First he "prodded" conservative Associate Justice Willis VanDevanter to retire, thus removing one of the primary reasons for the court scheme.12 Then, he and Wyoming senator Joseph C. O'Mahoney surreptitiously penned the Senate Judiciary Committee's formal objection to Roosevelt's plan. On May 18, 1937, in a congressional one-two punch carefully planned by Borah and Wheeler, Justice VanDevanter announced his resignation and the Senate committee voted 10-8 not to recommend the court-packing plan, thus crippling Roosevelt's chances of altering the Judiciary.13
Although the Senator remained theoretically anonymous, Borah's political stamp is clearly evident in the Judiciary committee's report. The Idahoan criticized the court-packing plan as an unsubtle means of establishing executive dictatorship, a plan which should not have "been presented to the free representatives of the free people of America." The report went on to declare that "the ultimate result" of court-packing "would be to make the Constitution what the executive or legislative branches...choose to say it is -- an interpretation to be changed with each change of administration."14 Uneager to let Roosevelt or any other President subvert the Madisonian system, Borah acted to preserve the founding charter as an expression of the people's -- and not the executive's -- will.
Although he never took front and center in the debate over the court plan, Borah was instrumental in blocking Roosevelt's designs on the Judiciary. As Salmon Levinson, a good friend of the Senator, noted,
Borah has given a great account of himself the past few months. He has not been written up, especially as to the collapsed court-packing scheme of the President, but he was the power behind the senatorial throne. I have forgotten whether I told you in Boston what he confided to me in confidence, namely that he and O'Mahoney wrote the judiciary report. Besides that he cashed in on his long independent and constitutional career with the opposition democrats and notably their leaders.15
Yet, although his coalition met with great success, The Great Opposer's decision to craft alliances rather than oratory reflects the Senator's flagging energy and weakening disposition. A younger Lion of Idaho would never have remained silent and allowed a faction of Democrats to fight for him, even if it was a politically wily maneuver. Borah's decision to forgo his usual status as the Senate's lone wolf and work within the usual congressional system of handshakes and backscratching illustrates how much the Idahoan's idealism had faded since his failed Presidential campaign. Again and again over the coming years, Borah would speak with much less force about his political passions or seem to lose heart at a critical political juncture.
For example, when President Roosevelt, in the name of "efficient and economical conduct of governmental operations," attempted to reorganize and streamline the executive branch in 1937, Borah originally cried foul in his usual tradition.16 "The problem which confronts us is the restraining and controlling of the remarkable bureaucratic growth in this country," declared Borah. He thus encouraged the Congress to prevent "bureaucracy gone mad" and preserve local self-government, and the reorganization plan was subsequently defeated.17 Yet, when Borah had an opportunity in 1938 to ensure that any further attempts at executive reorganization must first receive congressional approval, he let it go, thus allowing a pro-Roosevelt coalition led by James F. Byrnes and Harry S. Truman to overturn the proposed legislation. "This was something of a blow to those of us who had been fighting all along," remarked Hiram Johnson, "and it was more than a blow coming, as it did from Borah. Had Borah...voted to table the motion, the matter would have been ended, and no power could resurrect it."18
Occasionally in Roosevelt's second term, particularly when new bureaucratically-structured government programs were proposed as additions to the executive branch, the Lion of Idaho would regain his former fire and effectively remonstrate against the bills in question. When the President attempted to pass a fair labor standards bill in 1937 which set minimum wages and maximum hours and outlawed child labor, Borah dissented on the grounds that citizens did not need another unelected five man board, or "little NRA," to dispense leadership from above. "I feel that every man or woman who is worthy of hire is entitled to sufficient compensation to maintain a decent standard of living," remarked the Senator.
But to me this problem is one of method. I hesitate to grant to any five men...the power [to] practically control and determine the industrial interests of the different communities of the United States...I feel, as a legislator, that I owe a duty to the minimum wage employees in this country, and that I ought not to shift that responsibility over to a board over whom I have no control.19
Similarly, when the Agricultural Adjustment Act came to a vote for renewal in 1938, Borah echoed his earlier sentiments against Roosevelt's farm program. "As long as we have...one third of the people of the United States in a state of need and want," said Borah, "we are certainly not on the right road when we are reducing the quantity for which they are nightly praying." The elderly Borah sometimes even displayed a flash of his old wit. "To impose upon the farmer the regulations and rules prescribed by this bill," he stated, "supposes that he has just escaped from the home for the feeble-minded."20
Borah tended to ally with the Roosevelt administration more often on public spending issues than on new government programs, particularly after the harsh recession of 1937. Although he proclaimed that Congress had to "put the brakes" on federal spending or "there is no place where they can be put on," Borah was loath to cut relief rolls when Americans were still suffering from the Depression.21 In 1937, Borah argued against cutting spending "at the expense of distressed men and women seeking food."22 Similarly, when relief rolls again came to a vote in 1939, Borah declared he was "for economy...but there are plenty of places to cut Federal appropriations without taking it out of the hides of the poor, helpless people on relief."23 Even in his waning years, Borah was not about to forsake the common man for political principle or a balanced budget.
Yet, Borah still held issues with the propensity of New Deal liberals to rely primarily on public spending as a cure-all for social woes. "Under the present economic set-up," the Idahoan declared, "spending program[s] will be in the nature of a subsidy to the monopolistic controlled interests. If we do not solve this problem, we will be struggling along here for a long time to come with the purchasing power of the masses constantly decreasing."24 Although he recognized the importance of preserving purchasing power, Borah nevertheless questioned the efficacy of blindly throwing money at social problems, particularly when corporate power had not yet been dissolved. As he had stated so often in the past, Borah argued that monopolies had to be crushed before the American citizenry would overcome the depression.
In an attempt to constrain monopolies and diminish bureaucracy, Borah resubmitted his 1935 proposal to create a federal licensing system in both 1937 and 1939. As historian Ellis Hawley notes, Borah's bill, which received most critical attention in its 1937 incarnation, would combine the powers of the NRA, SEC, NLRB, FTC, and several other federal agencies. In order for corporations to secure a license from the FTC, they "could not employ child labor, discriminate against women workers, or obstruct the organization of their employees." Moreover,
They would be required to maintain their chief place of business in the state in which they were organized. And they must observe all antitrust laws, eliminate all non-voting stock, and refrain from practices that were designed to inflate their capital structures or rob their stockholders.25
With the 1937 "Roosevelt recession" stifling the New Deal's attempts to foster an economic recovery, an increasingly anxious President was eager to reexamine the deleterious effects of monopoly on the economy. In the winter of 1937-38, Roosevelt renewed public emphasis on the antitrust issue. He urged the FTC to look into "monopolistic practices and other unwholesome methods of competition" and met with Borah in Idaho to discuss potential legislation.26 Moreover, declaring to Congress in 1938 that "the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself," Roosevelt called for a "thorough study of the concentration of economic power."27 The Lion of Idaho esteemed Roosevelt's return to the antitrust fold as the best news he had heard in "many, many a political day."28
Roosevelt envisioned a large role for Borah in this proposed eleven-man committee on monopoly, the Temporary National Economic Conference (TNEC). As he put it to Vice-President Garner, "The Monopoly Investigation Bill calls for three Senators...[and] I really think Borah should be made to serve. This is his pet hobby anyway."29 A younger William Borah would probably have jumped at the chance to grapple with corporate power and publicly emote on the monopoly issue. The seventy-three-year-old Borah of 1938, however, assumed his task with resignation and a mild skepticism. The TNEC investigation, the Senator wryly noted in the summer of 1938, would more than likely "string along and finally reach the dust of the upper shelf in the form of ten or twenty volumes which few will ever consult."30
Perhaps due to his own flagging energy, the Senator's dubious prediction turned out to be basically correct. As Sandel succinctly puts it, the conference "labored for three years, called 655 witnesses, produced eighty volumes of testimony, published forty-four monographs...[and] offered little in the way of concrete conclusions."31 Or, in the words of Time Magazine, "the committee rolled a rusty BB gun into place [and] pinged at the nation's economic problems."32 In effect, the TNEC shed much light but very little heat on the antitrust issue. Historians have noted that the conference basically served as a political "escape mechanism" for Roosevelt, "a way to deal with a fundamental policy conflict that could not be resolved."33 What might have been a first-rate opportunity for Borah to call attention to monopoly power and skewer plutocrats instead became a harmless political sideshow, in no small part to the Idahoan's minor commitment to the proceedings. As one contemporary recalled, "Although he consented to serve [on the TNEC], Borah had lost a good deal of his fire."34
In 1938, the Senator further sabotaged his own brand of antimonopolism by confirming Thurman Arnold to the head of the Anti-trust Division of the Justice Department. Unlike Borah the civic republican, who disliked all monopolies for the threat they posed to small business and self-government, Thurman Arnold the New Deal liberal readily distinguished between good and bad trusts based on their commitment to the consumer. Moreover, Arnold thought antitrust laws were "the greatest protection to uncontrolled business dictatorships" and antitrusters of Borah's ilk to be hopelessly moralistic and obsolete.35 Indeed, he claimed in his 1937 volume The Folklore of Capitalism that "men like Senator Borah founded political careers on the continuance of [antitrust] crusades, which were entirely futile but enormously picturesque, and which paid big dividends in terms of personal prestige."36
One year after proclaiming the irrelevance of both antitrust laws and William Borah, Thurman Arnold found himself nominated to the Antitrust Division and facing the Lion of Idaho in a Senate confirmation hearing. During the meeting, Borah read aloud the passage which had caricatured him, skipping the sentence which actually mentioned his name, and asked Arnold exactly what he meant. "He knew I was worried," Arnold later remembered, "and his eyes twinkled."37 Eventually, Arnold managed to convince the Senator that he did truly believe in the antitrust laws, and Borah voted for him. "I think you ought to revise that chapter on trusts," Borah advised, "because it will lead to a great deal of embarrassment." Moreover, the Senator noted, "I do not want you to draw indictments on the theory that these corporations will be made bigger and more dangerous by prosecution."38
As with the TNEC, Borah could have made a case for his civic republican strand of antimonopolism at the Arnold hearings. Instead, the Senator voted in a man who harbored no ill will towards economic concentration in principle. As Alan Brinkley has remarked, "Both [Arnold and the TNEC] were, ostensibly, efforts to combat economic concentration. But both became, in the end, chapters in the emergence of a new consumption-oriented liberalism in which economic concentration would come to seem increasingly irrelevant."39 This new liberalism, emerging from the centralization and Keynesianism of the New Deal and consolidated by the experience of World War II, struck at odds with Borah's civic republican progressivism. Yet, the Senator squandered his two last chances to apply and promote his own public philosophy, and thus paved the way for its eventual extinction.
Why did William Borah, such a vociferous opponent of monopoly in his earlier years, seem so sedate by 1938-1939? Age is only part of the equation. More significantly, the Idahoan's attention was distracted by the worsening political situation in Europe. A long-time isolationist and irreconcilable who had once tried to outlaw war by means of international law, Borah despaired over the increasing likelihood of another global conflict.40 He believed the punitive measures of the Versailles Treaty were an impetus to conflict and advised America to stay out of the Old World's troubles. "I do not think the way to keep us out of war is to undertake to curb aggressors," Borah remarked in October of 1937.41
As Germany began to annex neighboring nations, Borah grew more erratic and unreasonable in his assessment of European politics. He derided British visitors who came "to spread their propaganda" and attacked France and England for veiling their national interests in the language of democracy and dictatorship. Worse still, although Borah despised any dictatorial pretensions in Roosevelt, the Idahoan revealed his admiration for Hitler. "There are so many great sides to him," Borah said of Hitler in 1938.42 After the Fuehrer had taken the Suedetenland, Borah emoted, "Gad, what a chance Hitler has! If he only moderates his religious and racial intolerance, he would take his place beside Charlemagne. He has taken Europe without firing a shot." Even after the war had started in 1939, a war Borah had repeatedly stated in public would never happen and that he curiously labeled as "phony" after its inception, the Senator lamented, "Lord, if I could only have talked with Hitler, all this might have been avoided."43
Even more than his diminished energy in the domestic arena, Borah's strange attitude towards the developing war in Europe reflects how age and the events of the late Thirties had crushed the Idahoan's spirit. In his last years in office, the Lion of Idaho was at best a shadow of his earlier self and at worst an old man in denial, simultaneously crippling his own public philosophy by allowing New Dealers to dominate antimonopoly discourse and marring his statesmanlike stature by complimenting Fascism.
Fortunately for him, Borah never saw the United States enter World War II against Germany. On January 16, 1940, the Senator suffered from a cerebral hemorrhage that took his life four days later. The loss of the Idahoan was mourned across the nation. Borah "had thought deeply and studied with patience all the great social, political, and economic questions," remarked Roosevelt at his state funeral. "He was a unique figure whose passing leaves a void in American public life...[and] a very old friend of mine." Cordell Hull proclaimed Borah "a fearless statesman, ever faithful to his principles," while William Gibbs McAdoo praised him as "an intellectual giant in the Senate and one of the truly great men of his time."44 With the passing of Borah and his public philosophy and the onset of World War II, the nation moved a giant step closer to the liberal orthodoxy that has dominated American politics ever since.