by Robert M. Kaus
Robert M. Kaus its an editor of The Washington
Monthly. He was assisted in the research for this article by Robert
The offices of the "public interest"
law firm of Connerton, Schulman and Bernstein look like any other
fashionable Washington lawyers' warren, except for the walls.
Along the walls, up and down the softly lit, carpeted corridors.
are neatly arranged the artifacts and symbols of the labor movement.
There are framed, colorful posters proclaiming "Strike!"
There are posters of the early British Labour party, Ben Shahn
posters from the New Deal, gritty black and white portraits of
coal miners and construction workers, and paintings of workers
on picket lines. But something is wrong, out of sync, though I
can't put my finger on it.
Inside, in a large glass-walled office to
the left of the modernistic conference room, lurks Jules Bernstein,
father of Big Business Day, adviser to socialist Michael Harrington,
and by his own admission "one of the leading pro bono lawyers
in this country." Moments after he greets me, the phone begins
to ring, and Bernstein is back at work--in this particular instance,
trying to get the lawyers for three postal workers' unions to
join him in pressing an ""unfair labor practice"
charge against the U.S. Postal Service.
"Will you forget the theory for a moment?"
he cajoles, pacing back and forth. "You've got to think big
in this world. It's like the guy in the airplane ads taking off
and thinking, 'Wow, I've just won this terrific prize.' That could
be us." Berstein nervously twirls the swivel chair in front
of his desk and drops his rumpled bulk on top of it. Another call:
"Look, Lubbers is over there at the NLRB with a mandate to
protect the American worker. Well, if he really wants to strike
a blow for American workers then he should file on this..."
The words pour easily from Bernstein's mouth.
If most attorneys come across as cynical, self-consciously separating
their client's views from their own, Bernstein is clearly quick
to place his actions on the side of righteousness, and the touchstone
is usually Bernstein's role as defender of the American worker.
"I ve always said", he had told me at our first meeting
"'If you're a union lawyer, you can sleep nights. You may
not sleep long but you rest peacefully."
Still, something is off key, something is
to facile in Bernstein's invocation of the "American worker"
in this particular situation or maybe just in these particular
surroundings. It's a feeling I've gotten several times in the
past few weeks,when I've asked around about Bernstein in Washington's
close-knit left-liberal community. The answers are usually the
same. First, a quick word of praise: ""He's a catalyst...
he brings people together...he's such an idealist... a genuine
humanist." But this is followed by a penetrating look, an
uncomfortable pause that seems to say, in effect, "That's
all I want to say...What are you driving at, anyway?"
The problem can't be the Bernstein's leftist
credentials. They are impressive enough, starting in the mid-50s
at Brandeis University, an ideological hothouse where Bernstein
studied under such contending radical luminaries as Herbert Marcuse
("a great man"), Irving Howe ("a dear friend")
and C. Wright Mills. Then there was the civil rights movement,
which captivated Berstein while he was in law school, and then
there are his 20 years as one of Washington's leading labor lawyers.
This is a life marked off into what Bernstein calls his "ten-year
struggles," first to "democratize the legal system"
through prepaid legal service plans, then in a campaign against
the "union-busting" industry, the management consultants
who hire themselves out to employers who want to fight unionization
("a hunch of mercenaries," Berstein labels them). More
recently, Berstein has been a chief architect of the "campaign
to curb corporate abuse in the 1980s" that was, in theory
anyway, kicked off with Big Business Day three months ago. Today
Bernstein is one of the two or three most visible left-wing lawyers
in Washington, especially if you give points for the fact that
unlike Ralph Nader or a Joe Rauh, he is an avowed socialist, a
member of the national executive board of the Democratic Socialist
Organizing Committee (DSOC). Yes, the credentials are solid, the
references impeccable. Yet there is something wrong...
Our interview is over, and Bernstein is showing
me out. Too late to ask any more questions. "Of course, these
are Coritas," he is saying, proudly pointing to a row of
familiar-looking silk-screen prints arrayed on one side of the
corridor. "And these are old British posters.That one's only
a copy, but the other two are originals. And here are some Ben
Then it hits me. It's the walls after all,
or rather what is on them. These aren't the same benign Ben Shahn
and Corita copies you see in the waiting rooms of every liberal
congressman or antiwar dentist. These are Shahn and Corita originals-
even the painting of striking workers by the front door turns
out to be an original that Bernstein has picked up at a New York
exhibition. What had seemed to be a simple display of ideological
badges is in fact many thousands of dollars' worth of expensive
art. At least as much as they symbolize the struggles of the working
man, it seems the decorations on Jules Bernstein's wall symbolize
something else, namely money.
And money, I now realized, was one of the
aspects of Jules Bernstein's life that his colleagues on the left
had been reluctant to talk about, even as they reached for nice
things to say about him. Because Jules Bernstein it turns out,
is a rich man. Not just Washington-lawyer rich, hut millionaire-rich..
Now, we are used to the perversity of wealth,and the contradictions
inherent in being a socialist millionaire are not particularly
damning,or even interesting, anymore. What's intriguing about
Berstein however,is not the mere fact that he is rich, but rather
when he became rich (answer: very recently) and, more important,
how. You see, he did not inherit wealth, like Stewart Mott, or
marry it, like Norman Thomas. Instead, Jules Bernstein got rich
while "striking a blow for American workers," as he
would put it.
The story of how Bernstein made his first
million begins back in 1973, when Senator Harrison Williams, chairman
of the Senate Labor Subcommittee, introduced a hill to bring the
federal government under the Fair Labor Standards Act (FLSA),
the law that establishes the minimum wage, the 40-hour week, and
a slew of other rules that govern the way most employees in the
private sector are paid. At the time. the chief counsel of Williams's
subcommittee was a young lawyer named Gerald Feder. It was Feder
who drafted much of the bill's language.
In the spring of 1974, Feder's subcommittee
asked Louis Cox, the Postal Service's general counsel, if his
agency had any problem with the proposed law. Cox wrote back a
letter saying he had no objections. It was a colossal blunder
of the sort few attorneys get the opportunity to make in their
lifetimes. because the Post Office's personnel practices were
in fact subtly, but significantly, out of line with the FLSA's
requirements. For example, the Postal Service measured overtime
by the half-hour while the new law required "rounding off"
to the nearest quarter hour. The FLSA also requires employers
to include any "night shift" or other pay premiums in
computing overtime while the Post Office had been paying straight
There were other discrepancies, none of them
particularly prominent but spread over 700,000 postal workers
all the quarter hours and night shift premiums could add up to
a tidy sum. True, the Postal Service might adjust its payroll
practices to meet the new requirements but the act would give
them only three weeks to comply, once it was signed and the Post
Office's payroll system was pieced together from over 200 different
computer programs. More important, as anyone reading Cox's letter
would quickly grasp, the Postal Service had no idea what would
be required of it.
One reason for Cox's complacency, it should
be noted, was that there was no visible groundswell of outrage
rising up from rank and file postal employees condemning "rounding
off" to the half-hour, or the other payroll practices the
bill would outlaw. The subcommittee's hearings on the FLSA amendments
tended to focus on other aspects the of legislation (including
a rise in the minimum wage and the application of FLSA to local
governments); indeed, none of the postal unions chose to testify.
So, with Cox nodding his head, the amendments
to the Fair Labor Act were signed into law in April 1974. Three
weeks later, the U.S. Postal Service stood exposed to a steadily
growing liability for its now illegal payroll practices. Eleven
days after that, Gerald Feder quit his job with the Senate Labor
Subcommittee and went into private practice.
One of Feder's first acts as a private attorney
was to sign on as litigation manager for several prominent Washington
labor lawyers who had sued the Postal Service on an earlier labor
violation, involving overtime payments for work performed "out
of schedule." The lawyers included Donald M. Murtha, former
general counsel of the American Postal Workers' Union, and Bernstein,
who was associate general counsel to the Laborers International,
a union of over 400,000 members, including 60,000 Postal Service
mailhandlers. The lawyers had argued, in essence, that if a worker
who normally worked Monday-through-Friday was instead asked to
work Tuesday-through Saturday, he should receive overtime for
the entire week instead of just for one day.
Don't laugh-the suit was eventually settled
for $25 million. But not before the lawyers got into a bitter
argument with the Postal Service over their attorneys' fees. Enlisting
the aid of another prominent labor barrister, Mozart Ratner (then
general counsel of yet another postal union, the Letter Carriers),
they eventually received fees totaling $3.1 million. For Bernstein, whose
salary with the Laborers was $37,000 a year plus expenses, it
was a taste of things to come.
Meanwhile, the Postal Service and the unions
were slogging through the contract talks of 1975, during which
the Postal Service had to admit that it was violating the FLSA,
and promised to redesign its payrolls and begin awarding back
pay to its workers. The unions-represented by, among others, Bernstein
and Ratner in their official capacities-went along and the contract
was signed, temporarily putting the issue of the FLSA violations
on the back burner. But the lawyers were not to be denied. Although
the full range of the Postal Service's violations was still a
matter of speculation. "Gerry [Feder] had a smell of them
and I had a smell," Ratner would later tell Robert Windrem
of The American Lawyer. When they learned that a California attorney
had been soliciting letter carriers as clients for a hack pay
case, Feder, Ratner, and Bernstein got together and decided to
take quick action.
They were, in fact, an ideal trio to bring
a lawsuit seeking recovery under the new statute. Feder, of course,
had written much of the law in question. And, as officials of
their unions, not only had Bernstein and Ratner participated in
the contract negotiations during which the Postal Service admitted
it was violating the law, but they were well-situated to contact
the workers who would be the plaintiffs in any lawsuit. As union
officials, in fact, you might have expected them to bring such
a back pay suit as part of their normal course of duty, on behalf
of the workers whose dues paid their not inconsiderable salaries.
But they had a better idea.
Bagging the Money
An ingenious idea it was. To appreciate it,
you should understand the problem Bernstein and his colleagues
faced: Here was the Postal Service, admitting violations of law
that could mean millions. But the amount of back pay owed any
single worker, even those with the best claims, would not amount
to more than a thousand dollars or so, hardly worth the collective
efforts of three legal heavyweights. The trick was to combine
the claims of thousands of workers so that, when they all added
up, you had a really whopping lawsuit. But the lawyer's traditional
mechanism for doing this-the "class action"-is forbidden
in FLSA actions. Nor are unions allowed to sue for themselves-only
individual members may recover back pay.
To get around this obstacle, the lawyers discovered mass marketing. They would use union machinery to round up clients, placing ads in union magazines asking postal workers to join in their lawsuit. Handy clip-out coupons were included in the ads-send them in, and you had hired Bernstein, Feder, or Ratner to bring your back pay case.
Within three months after the first case
was filed, 13,000 workers had sent in coupons. As the lawyers
discovered additional ways in which the Postal Service had been
snagged by the FLSA, more coupons were printed, in what came
to resemble a "Lawsuit of the Month Club." Eventually,
90,000 workers subscribed.
But although Bernstein received the aid of
the Laborers' Union in attracting clients, he did not bring, the
suits as the Laborers' associate general counsel. Instead, he
and Feder joined up with Murtha and another Laborers official,
Robert Connerton, to form a "one-case law firm," Donald
M. Murtha & Associates, in which each held partnership shares.
It was this device-the creation of a separate, private firm--that
guaranteed the lawyers a hefty cut of any back pay award the postal
There were alternatives, of course. Under
the statutes, the Secretary of Labor could have been asked to
file a suit that would have protected all half-million postal
workers, rather than just the 90,000 who clipped out the forms.
Or Bernstein and Ratner could have undertaken the suit as employees
of their unions, with the unions simply paying their salaries,
and any other litigation expenses, and then distributing all the
back pay recovered to the individual employees. . Bernstein admits
they might have done that and after all the salaries the unions
were paying to the two attorneys were already enough to place
them in one of the higher tax brackets (by 1976 Bernstein was
receiving $40,000). But neither of these alternatives seemed very
attractive to the attorneys, perhaps because neither would have
allowed them to share in what Bernstein, with characteristic modesty,
calls "potentially the biggest back pay recovery in history."
"In effect," says one lawyer familiar
with the litigation, "the Murtha firm was set up as a bag
to catch the money."
Even after the new firm's first suits were
filed, the Postal Service struggled gamely to bring its computers
into line with the FLSA. It failed. In December 1978, four years
after the statute had passed, the Postal Service was still violating
it, and an angry federal judge threatened to make USPS pay an
extra 100 per percent of back pay as "liquidated damages."
As the judge's deadline approached, it became
clear to all concerned that the government's lawyers were ready
neither to perfect their payroll practices nor to go to trial
on the remaining legal and factual issues. Instead they decided
to settle out of court. Ratner, Feder and Bernstein had hit the
jackpot. When the first suit-involving the quarter-hour rule and
other straight-forward overtime claims-was settled, it gave Bernstein's
firm five percent of the total $42 million that the Post Office
agreed to pay his clients. ( Bernstein argues that his fees came
from a separate fund, rather than out of the workers' recoveries.
But as one postal attorney pointed out. "It was all one pie."
The Postal Service would presumably just as soon have given a
bigger slice to the workers, and a smaller slice to their attorneys,
as long as the total size of the pie staved the same.)
Even more lucrative, however, was the deal
that Bernstein and Feder struck on the cases they didn't
resolve, involving compensation for study training and travel
time, of which there were no accurate payroll records. While this
agreement settled only one of the many issues of liability, and
involved no payments to any postal workers, it did require the
Postal Service to hire the Murtha firm to help "develop an
administrative procedure...for the processing of claims."
Under this "contract the Postal Service was obligated to
pay Bernstein's firm up to $80 and hour for attorneys who would
develop a series of "pilot projects" in five cities
for the resolution of possible disputes (over, for example, how
many hours a given worker had spent studying mail-sorting schemes
on his own time). In addition, the government would pay for the
Murtha firm's expenses, including Xerox costs, postage, travel,
taxis, hotel rooms, meals. and computer services. The agreement
set no firm limit on the number of hours for which the government
could be billed. All in all it was an arrangement to make any
self-respecting Washington consultant drool. As an added bonus
the Post Office agreed to immediately pay Berstein's firm an extra
$2.5 million to "facilitate their future representation of
This "settlement" has proved as
profitable in practice as it looks on paper. According to records
obtained from the Postal Service through the Freedom of Information
Act, Bernstein's "joint venture" has submitted bills
since April 1978 for no less than $4.8 million in attorneys' fees
and an additional $266,819 in expenses under the agreement. Of
this $3.3 million has already been paid (the remainder is in dispute).
Out of this sum, of course, the Murtha partners
had to pay the salaries of the lawyers they have hired to carry
out the required work (at one time Murtha Associates had 43 attorneys
on its payroll billing the government for their services). But
under the formula in the agreement, Murtha & Associates was
allowed to charge the Postal Service $50 an hour for inexperienced
attorneys who were encouraged to bill the government for 2,000
hours apiece or $100,000 a year. The firm paid these lawyers only
$15,000 per year. After this policy prompted the firm's attorneys
to unionize, their salaries were raised-to $16,000. So even assuming
that fringe benefits and any overhead expenses not already reimbursed
by the Postal Service (mainly rent and normal clerical help) amounted
to another 100 percent of salary-an extravagant figure-that still
means well over $50,000 in profit for every $100,000 Murtha &
Associates received. Which leaves the firm a clear profit of over
$2.4 million on the contract alone.
The $50,000 Question
All told, the Murtha firm has billed the
government for about $10 million under the various parts of the
settlement. As one of the firm's five partners, Bernstein's share
of the profits so far probably adds up to close to $1 million.
The "joint venture" with Feder and Ratner has worked
out well -- it would have taken Bernstein decades to earn as much
at his comfortable union salary.
But don't think he has had to give that up,
not for a moment. You see, for the entire course of the back pay
case, while he was collecting fees as an independent attorney,
Bernstein remained on the Laborers' payroll as associate general
counsel, drawing salary and expenses averaging about $50,000 a
year. Since he has also opened yet another law firm-Connerton,
Schulman and Bernstein-performs legal work for the Laborers and
bills them for it separately, exactly what the union members are
getting for their $50,000 is hard to ascertain.
And what of the "claims procedure"
that the Murtha firm has developed in order to actually get the
postal workers their back pay checks for time spent on "training
travel and study"? Well, it has yet to be agreed on, in
part because of the Murtha group's insistence that claims be initiated
with the assistance of a lawyer. The matter is now scheduled for
arbitration. But close observers of the case are skeptical that
a procedure to process individual claims will ever be worked out.
"Wait and see," one cautioned me. "Once the firm
has milked the contract with the Postal Service for all it's worth,
you can bet they'll settle for $600 per worker across the board,
and the whole claims procedure they were paid to develop will
Meanwhile, however, Bernstein has plenty
to keep him occupied. After the initial settlements, he discovered
additional Postal Service violations of FLSA and another round
of clip-out coupons garnered 200,000 responses. Along with Ratner,
he is also trying to enforce a so-called ""non-plaintiff's
agreement," under which he claims the Postal Service agreed
to compensate all 470,000 postal workers on the same terms as
Bernstein's initial clients. In all these lawsuits, Bernstein
is asking for a cut. "It is unfortunate," he laments,
"that the biggest single fair labor standards violation in
history should have been caused by an instrumentality of the U.S.
government... My guesstimate is that the total liability here
could he as high as $2 billion."
Ironically, it is Jules Bernstein's newfound
affluence that has enhanced his prominence on the left and given
his political colleagues an incentive not to look too critically
at where it came from. By all accounts, Bernstein is generous
with his money, willing to fund a cause, organization, or artist
struggling to make a start. It was Bernstein who sponsored the
film festival at last year's AFL-CIO convention that featured
the work of new radical filmmakers ("The Wobblies",
"With Babies and Banners") along with such old standbys
as "Salt of the Earth." When the supporters of the striking
chichen-pluckers in Mississippi needed someone to buy a bloc of
tickets to a benefit performance of a play about Karen Silkwood,
Bernstein was there. Many of the organizations in which he is
a leading figure-from the Democratic Socialist Organizing Committee
to the National Resource Center for Consumers of Legal Services--have
been supported by his actual, as well as intellectual, capital.
This makes Bernstein the kind of potential patron that potential
proteges will try hard to accord the benefit of every doubt.
In Bernstein's case, however, those doubts
run deep. They involve not only the mechanics of his recent good
fortune, but another, more delicate subject. As one fellow DSOC
activist put it, "the unions he has worked for are unions
that need lawyers for something other than the practice of labor
law." To be less delicate, Bernstein has spent the hulk of
his legal career working for two of the most corrupt unions in
America. For most lawyers, this fact would only be the occasion
for a familiar debate on the adversary system and the right of
every man to counsel. But for Berstein, who draws so much of his
moral and political credibility from the causes he represents
("when you're a union lawyer, you can sleep nights"),
it's worth looking at exactly what those causes have been.
From 1962 to 1967, Bernstein's client was
the Teamsters Union, then under the control of Jimmy Hoffa at
the height of his powers. Berstein is fond of recalling the "Teamsters"
role in the early civil rights movement "I was there at a
dinner with Hoffa and Andy Young and Martin Luther King when the
Teamsters presented SCLC with a big fat check for 25G's."
he told me. But others may remember the '60s as the era in which
Hoffa was indicted on a series of racketeering charges first,
for diverting $1,700,000 of a Teamster loan for his personal use,
and later for demanding and receiving a kickback of more than
a million dollars from Teamster employers. After the second case
ended in a hung jury, Hoffa was convicted of bribing one of the
jurors, and in 1967, Hoffa went to prison.
Bernstein left the Teamsters in 1967 to go
to work for the Laborers, whom he has represented ever since.
In so doing, he moved to a union with a slightly less sensational,
but no less distasteful, reputation than his previous employers.
Originally called the Hod-Carriers, the Laborers have traditionally
represented workers who do much of the hard hauling and digging
on America's construction sites. More recently, the union has
added members who perform similarly arduous jobs in the public
sector - garbage collectors, for example, or the bulk-mail handlers
Berstein represented in the back pay cases. Not noted for a tradition
of grassroots democracy, the union managed not to hold a convention
for one 30-year stretch prior to World War II.
The Laborers underwent a much heralded "revitalization"
in the mid-'60, but in the '70s the publicity was less favorable
In 1975, Bernard Rubin. the leader of two important Florida locals,
was convicted of embezzling close to $400,000 in union funds.
Later, an associate of Rubin's, one Joseph Hauser, was discovered
to have siphoned off at least $11.7 million from union trust funds
around the nation. According to government investigators, these
revelations were only the tip of the iceberg. A secret 1978 Justice
Department memo to President Carter, first obtained by Mother
Jones magazine (which is publishing an expose of the union
in its August issue) states flatly that the current Laborers president
Angelo Fosco is a tool of the crime syndicate
"In Chicago," the memo continues,
"Fosco follows the orders of Al Pilotto and Vincent Solano,
two local union presidents who are also LCN [ La Cosa Nostra ]
lieutenants." In Elizabeth. New Jersey, laborers who report
for work at the union hiring hall have the honor of being personally
chosen, of not chosen, to work by John Riggi, who as the reputed
head of New Jersey only home-grown Mafia family and the undisputed
ruler of Laborers' Local 394 may he the highest ranking organized
crime figure to occupy a work-a-day union position in this country.
The FBI files describe the usual assortment of practices that
accompany such infiltration-extortion of employers, sale of "sweetheart"
contracts in exchange for kickbacks, favored treatment for workers
willing to engage in illegal activity on the side.
Nothing in the Mother Jones article,
or in my own limited inquiry, links Jules Bernstein himself to
any of this activity.
Nor, apparently, does it interrupt his peaceful
sleep. When asked about the charges of corruption in the Laborers
he responds with poise: "I don't pay too much attention to
that kind of stuff. Union officials are people who are disturbers
of the status quo. 'They can't hope to have everyone love them
and naturally accusations will be made. You can't spend all your
time worrying about that because it gets so that you can't do
It must be tempting for Bernstein's left-wing
friends to give him the benefit of this doubt too---to overlook
the annoying persistence of corruption among his employers in
light of the broad "progressive" role of unions in general.
Before they do, though, they might think about who pays for the
illegal practices of the men whom Bernstein represents. It is
the worker after all, who must kick back part of his daily wage
to the boss who runs the crooked hiring hall, who must pay for
the phony insurance claims used to supplement the income of corrupt
officials, who must come up with the dues used to support their
friends in ceremonial "international representative"
positions. It's the union member who sees his pension money lost
or stolen in rigged investments. Jules Bernstein can work up a
healthy lather condemning Love Canal, and the threat to safety
posed by the "abuse of corporate power" but he will
defend with equanimity a union in which the dues of half-a-million
laborers pay for a safety department consisting of exactly one
part-time official. He will rail against the "union-busting
industry," but is it union-busters or men like John Riggi
and Angelo Fosco who are responsible for unionism's declining
appeal to the extent that only 20 cents of every construction
dollar spent in 1979 went into union shops, down from a figure
of 60 cents just a decade earlier? Bernstein prefers not to be
concerned. "These are good hard-working trade unionists who
care about their members," he asserts.
At some point, you stop giving Jules Bernstein
the benefit of the doubt.
To many organizations on the left, of course,
Bernstein's connections with the right wing of the American labor
movement (the Laborers endorsed Nixon in '72) are precisely what
make him so prized. "Most of our members are where you would
expect them to be" says DSOC's chief spokesman.. Michael
Harrington. "They come from Jerry Wurf, from Doug Fraser,
from Wimpy [William Winpisinger, president of the Machinists ].
Jules links us to people we would otherwise have little contact
with." Frequently cited, in this connection is Bernstein's
influence with Robert Georgine, president of the AFL-CIO's Building
Trades division. "I remember the Democratic Agenda meeting
in 1979," recalls Harrington, "where you had Wimpy and
Georgine sharing a platform. . . Jules and Victor Kamber [former
chief AFL-CIO lobbyist] were responsible for that but then Jules
is responsible for Kamber's links to DSOC." Bernstein performed
a similar function for Big Business Day, on whose letterhead Robert
Georgine's name appears alongside Michael Harrington's, Arthur
Schlesinger's and Ed ("Lou (Grant") Asner's.
In the light of these prodigious feats of
linkage, Bernstein's socialist colleagues profess no distress
at either his recent rise to riches or his long-time employers.
"The thing about Jules," says DSOC national director
Jim Chapin, "is that as he did better for himself, his politics
got better, unlike the usual case." Says Harrington, "I'm
not bothered by the union he works for, particularly because he's
so up front about his politics. If I felt he was shaving or adapting
his politics, I would be bothered."
If I were Michael Harrington, I would be
bothered. I would be bothered, first, by the money. The point
is not simply that socialists shouldn't be allowed to be rich
though I confess to some disorientation when I asked Bernstein
if he would be allowed to make his current income "after
the revolution"and he answered, "I should hope not....
I happen to believe we shouldn't have this tremendous disparity
between rich and poor. That's one of the major problems in this
country and the world." The point isn't even that any way
I cut it, I come to the conclusion that Bernstein made his fortune
at the expense of the taxpayers and the postal workers he represents.
The point is, rather, the way in which Bernstein
represents, in exaggerated, comic-opera form, a more general attitude
among the lawyers and lobbyists who pass for "the left"
in Washington. That's because Bernstein's defense against charges
of hypocrisy is a practical one. "Look," Bernstein will
say (.as he said to me), "if people are to have justice there
has to be funding for it. This is the only way the underprivileged
are goings to be represented." The same logic has led other
"public interest" lawyers to spend more than a decade
trying to convince courts to award them "reasonable attorneys'
fees" whenever their lawsuits'confer a substantial public
benefit." But "reasonable attorneys' fees" is a
term of art, and what was "reasonable" for an idealistic
lawyer has undergone a subtle transformation in the past 35 years.
Once upon a time labor lawyers like Bernstein measured their incomes
against those of the workers they represented, and felt embarrassed;
now they compare their fees against Covington and Burling's, and
feel deprived. Today, what is a "reasonable fee for a public
interest lawyer may be fixed with some precision: sufficiently
below the market rate to maintain a sense of sacrifice, but not
too low to pay for a townhouse in Dupont Circle
Bernstein has simply carried this attitude
to its logical conclusion. He will claim, half-heartedly, that
the rates he charged the Postal Service were "relatively
modest" compared with the fees charged by the corporate law
firms who work on the management side. But he knows that few corporate
law firms have a contract guaranteeing that their adversaries
will purchase three-to-four-million dollars' worth of their admittedly
more expensive hours. Deep down, Bernstein has convinced himself
of something else: that lawyers like himself deserve to make
a bundle, that they are, in fact, properly motivated by that prospect.
"Lawyers make big fees all the time." he explains. "So
what's the story?"
Well, the story is that the left was supposed
to be different. The enduring appeal of the left is the possibility
it holds out for a radically altered society in which virtues
like democracy, altruism, and patriotism play a much larger role,
and the quest for money a much more limited one. And the enduring
failure of the left has been its inability to make any such vision
seem plausible to more than a handful of Americans. Looking at
Jules Bernstein, it's easy to understand why-because the most
convincing argument against the socialist vision may he the way
professed socialists like Bernstein live their lives. The public
is hardly crazy, after all, to distrust such a man when he says
he is fighting for a society where he would be denied his $300,000
house, his $30 lunches, and his Ben Shahn originals.
If I were Harrington, I'd also worry about
the "links" that men like Jules Bernstein are so good
at providing. Those links can connect, to be sure, but they can
also imprison. One example should do.
The story begins with an attempt by lawyers
in Ralph Nader's Public Citizen organization to bring a suit challenging
a dues increase imposed by the Teamsters national convention,
meeting in Las Vegas in 1976, on the various "Teamsters locals.
To appreciate the significance of the suit, it is necessary to
understand that, in many unions, the power to deny a dues increase
may be the only remaining lever members have in their efforts
to shake up an entrenched hierarchy. Challenging a union leader
for his office requires openness and invites retribution. By law,
however, local dues elections must be conducted by secret ballot.
So it was an important step when unions like the Teamsters began
asserting the power to raise "minimum" local dues without
going through the messy formality of a rank and file election.
Since there was a good argument that the move was illegal, Nader's
Teamster reform group, PROD, planned a court challenge to try
and get the secret ballot requirement reinstated.
Before bringing the suit, however, PROD's
attorneys decided to "touch base" with a few prominent
labor lawyers, just to play it safe. Among the lawyers invited
to a meeting at Public Citizen's headquarters were Stephen Schlossberg,
then general counsel of the United Auto Workers, Larry Gold, special
counsel of the AFL-CIO, and Jules Bernstein.
What transpired at the meeting is the subject
of varying shades of interpretation, depending on whom you talk
to. But it appears that the union lawyers, led by Schlossberg,
had a definite message for the Nader people: The Teamsters' suit
would mean the end of the "friendship" between labor
and the Nader organizations. According to some participants, Schlossberg
threatened not only to cut off labor support for Nader's most
precious goal, a Consumer Protection Agency, but also to see to
it that Public Citizen's ability to raise funds was undermined.
Schlossberg got so furious at one point that he threw books and
overturned a table to make his point. Schlossberg denies making
any "threats," saying he only told the Nader people
that bringing the dues suit "was not a friendly act. ..and
in the future if we were in a coalition with them we would understand
it to be a coalition with our enemies." He admitted, however,
that he "may have gotten a little excited," believing
that the Nader suit against the Teamsters would also complicate
the means by which the UAW raised local dues. Either way, the
union lawyers' message got through, and the suit was never brought.
Three years later, however, a similar suit
was threatened by dissidents from the Teamsters and Laborers unions
in Alaska, where the oil pipeline boom had left union officials
sitting on huge pots of pension money, which they were allegedly
frittering away in questionable real estate transactions. The
dissidents asked PROD organizer Steve Early to fly to Alaska to
help them track down precisely what was happening to their due
and pension funds, using records that by law are available to
union members. This time it was Bernstein who took the lead in
opposing the reform effort, after his newly founded "public
interest" firm was hired to look after the not-so-public
interests of the Alaskan unions. When hostile letters to PROD's
Washington attorney, Arthur Fox, failed to keep Early from hoarding
the plane, Bernstein according to Fox tracked down Fox's boss,
chief Nader litigator Alan Morrison, in Massachusetts, and made
the familiar threat to do everything he could to destroy labor's
alliance with the Nader organizations, a message that Morrison
duly transmitted to his subordinate. (Morrison, for his part,
acknowledges discussing the matter with Bernstein but claims "no
recollection"" of any threats.) This time, however,
the technique didn't work. Early went to Alaska, and the dissidents
filed their lawsuit. Bernstein has asked at least one other Teamster
dissident group to try to pressure the Alaska workers into dropping
their case, with no success so far. The Laborers, however, will
be well represented in Alaska, though it will not come cheap.
In fact, it may cost $100,000, Bernstein has said, for him to
handle the case.
In the end, Jules Bernstein will tell you that his recent wealth simply helps him to further his political ideals. "Money is power in this country," he says, "and there should be some on the side of decency." But m measuring Bernstein's contributions to decency, we should look at both sides of the political coalitions he builds and finances. Thanks to Jules Bernstein, Robert Georgine and Michael Harrington have shared a platform in Washington. At the same time, thanks to Jules Bernstein, members of the Teamsters and Laborers have a little less control over their unions. It doesn't seem like a very good bargain.