Industrial Concentration, Sectional Competition, and Antitrust Politics in America, 1880–1980

Studies in American Political Development

Volumn 1, Issue , 1986, Pages 142-214

  Sanders, Elizabeth ^a  

^a NEW SCHOOL FOR SOCIAL RESEARCH   (United States)

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EID: 84972090867     PISSN: 0898588X     EISSN: 14698692     Source Type: Journal    
DOI: 10.1017/S0898588X00000353     Document Type: Article

References (193)

1. Y. Brozen, Yale, Concentration, Mergers and Public Policy, 1982, 371-375, (New York: Macmillan)
2. J.D. Clark, John D. The Federal Trust Policy, 1931, 3-5, (Baltimore: Johns Hopkins University Press)
3. H.B. Thorelli, Hans B. The Federal Antitrust Policy, 1955, 144, The Proclamation of the Farmers Congress is quoted in, (Baltimore: Johns Hopkins University Press)
4. C. Sydnor, Charles, The Origins of Southern Sectionalism, 1971, See, for example, (Baton Rouge: Louisiana State University Press)
5. R.F. Bensel, Richard F. Sectionalism and American Political Development, 1984, The most complete statement of the significance of regional conflict in political development over the past century is found in, (Madison: University of Wisconsin Press)
6. The Federal Antitrust Policy, Among the best are Thorelli
7. W. Letwin, William, Law and Economic Policy in America, 1965, (Chicago: University of Chicago Press)
8. The Economic Determinants of Antitrust Activity, W.F. Long, William F. R., Schramm, Richard, R. Tollison, Robert, Journal of Law and Economics, 1973, 16, 351-364, Economists and political scientists have attempted to explain antitrust policy by connecting the behavior of the Federal Trade commission and Antitrust Division to contemporary phenomena like industrial structure and performance, the ideological tendencies of oversight committee members, and internal personnel characteristics, particularly the career paths of lawyers staffing the agencies. See, for example
9. Bureaucratic Discretion or Congressional Control?: Regulatory Policy Making by the Federal Trade Commission, B.R. Weingast, Barry R. M.J. Moran, Mark J. Journal of Political Economy, 1983, 91, 783-800
10. R.A. Katzman, Robert A. Regulatory Bureaucracy: The FTC and Antitrust Policy, 1980, (Cambridge, Mass.: MIT Press), Because these approaches are, in the main, ahistorical and unconcerned with the more deeply rooted forces that lay behind “ideological” changes in the legislature or public opinion, they cannot account for cycles of antitrust activity, the peculiar content of the laws enacted during those periodic surges, or the comparative anomaly of U.S. antitrust policy in the industrial world
11. Bensel, Sectionalism and American political Development, 62-72, On the tariff, sectionalism, and party coalitions, see
12. Bensel, Sectionalism and American political Development, 22-31, and 368–402
13. Bensel, Sectionalism and American political Development, 415-450
14. H.H. McCarty, Harold Hall, The Geographic Basis of American Economic Life, 1970, See, for example, (New York: Kennikat Press, reissue of 1940 edition), frontispiece; and
15. D. Ward, David, Cities and Immigrants, 1971, 42-43, (New York: Oxford University Press)
16. A.R. Pred, Allan R. Urban Growth and City Systems in the United States, 1840—1860, 1980, (Cambridge, Mass.: Harvard University Press)
17. Pred, Urban Growth and City Systems
18. Emergence of the American Manufacturing Belt: An Interpretation, D.R. Meyer, David R. Journal of Historical Geography, 1983, 9, 145-174, (April)
19. I. Unger, Irwin, The Greenback Era, 1964, (Princeton: Princeton University Press), chaps. 9 and 10 and 202-03
20. S.J. Buck, Solon Justus, The Granger Movement, 1963, 3-10, (Lincoln: University of Nebraska Press), and chap. 3
21. J.D. Hicks, John D. The Populist Revolt, 1961, See also, (Lincoln: University of Nebraska Press)
22. L.W. Koenig, Louis W. Bryan, 1975, (New York: Capricorn Books)
23. A.D. Chandler, Alfred D. The Visible Hand, 1977, (Cambridge, Mass.: Belknap Press), chaps. 9 and 10
24. F.L. Allen, Frederick L. The Lords of Creation, 1935, 5-21, (New York: Harper and Bros.)
25. H.R. Seager, Henry R. C.A. Gulick, Charles A. Jr., Trust and Corporation Problems, 1929, 49-61, (New York: Harper and Bros)
26. Thorelli, The Federal Antitrust Policy, 256-258
27. C.V. Woodward, C. Vann, Origins of the New South, 1971, 314-318, (Baton Rouge: Louisiana State University Press)
28. N.J. Ware, Norman J. The Labor Movement in the United States, 1860–1890, 1964, 362-366, (New York: Vintage)
29. Hicks, The Populist Revolt, 103, 115
30. E.H. Roseboom, Eugene H. A History of Presidential Elections, 1957, 293, (New York: MacMillan)
31. the paramount issues to be solved in the interests of humanity are the abolition of usury, monopoly and trusts, D.B. Johnson, Donald B. National Party Platforms, 1978, 1, 83, The 1888 platform of the Union Labor party (a coalition of farm and labor organizations, including Greenbackers, Knights of Labor, the Farmers Alliance, and several state antimonopoly parties) declared that, 2 vols. (Urbana: University of Illinois Press)
32. S. Skowronek, Stephen, Building a New American State, 1982, 121-147, (New York: Cambridge University Press)
33. O.H. Ari, Olive Hoogenboom, A History of the ICC, 1976, 8-17, (New York: W.W. Norton)
34. G. Kolko, Gabriel, Railroads and Regulation, 1965, 33-34, Congressional Record, 49th Congress, 1st session (henceforth 49–1), 7752. This is the first vote to substitute the Reagan bill for the much weaker Senate version (which did not ban pooling or long-short haul differentials, and relied on a commission to rule on the reasonableness of rates). Kolko's class/interest group approach is misleading here. He states, on the basis of published business group positions, that “large numbers of Midwestern and Southern business organizations” opposed the long-short haul and antipooling provisions of the House (Reagan) bill, and that regional distinctions were “not too important” on the choice between the House and Senate bills, (New York: W.W. Norton), Even if it were true that merchant groups nationwide preferred the Senate to the House bill, it is apparent from House voting patterns that these groups had much less political clout in the southern and plains states than in the manufacturing belt (see map 4)
35. W. Letwin, William, Law and Economic Policy in America: The Evolution of the Sherman Antitrust Act, 1965, 106-142, On Sherman Act enforcement under its first three administrations, see, (Chicago: University of Chicago Press)
36. A Statistical Study of Antitrust Enforcement, R.A. Posner, Richard A. Journal of Law and Economics, 1970, 13, 336, (for a count of cases initiated)
37. Thorelli, The Federal Antitrust Policy, 587-591
38. Letwin, Law and Economic Policy in America, 106-121
39. A Statistical Study of Antitrust Enforcement, Posner, 366, The Justice Department instituted only nine antitrust cases in the first four years, and only seven more by the end of the decade. See
40. Johnson, National Party Platforms, 1, 97-100, The 1896 Democratic platform embraced free silver, a government-issued currency, expanded railroad regulation, a reconstituted income tax, and direct election for the Senate and presidency; it denounced antilabor injunctions and high tariffs
41. Koenig, Bryan, 243
42. Roseboom, History of Presidential Elections, 293
43. J. Moody, John, The Truth about the Trusts, 1904, 133-204, (New York: Moody Publishing Co.)
44. Woodward, Origins of the New South, 315-316, Cong. Rec. 57–2, 1778
45. G.W. Nutter, G. Warren, The Extent of Enterprise Monopoly in the United States, 1899—1939, 1951, (Chicago: University of Chicago Press), table 37
46. Thorelli, The Federal Antitrust Policy, 500-518, lists almost ninety ostensibly strengthening bills introduced by forty-seven House members, of whom at least thirty represented districts in the south, plains, and mountain nonindustrial regions (nineteen were southern Democrats)
47. Seager, Gulick, Trust and Corporation Problems, 341-349, Fourteen states, mostly in the periphery, had constitutional provisions against monopoly, and six of these (Kentucky, North Carolina, North Dakota, South Dakota, Tennessee, and Texas) also had antitrust statutes that predated the Sherman Act)
48. The Petroleum Industry in Transition: Antitrust and the Decline of Monopoly Control in Oil, J.A. Pratt, Joseph A. Journal of Economic History, 1980, 40, 815-837, State antimonopoly penalties were often much more severe than those incorporated in the Sherman Act. North Carolina had the highest absolute fines and longest prison terms. In Iowa, however, the penalty for conviction under the state's antitrust law was twenty percent of capital investment. Texas probably had the strictest enforcement, and it was successful in its drive to keep Standard Oil from dominating the state's petroleum industry. See, (December)
49. Kirkland, Industry Comes of Age, 1961, 396, (New York: Holt, Rinehart and Winston)
50. Thorelli, The Federal Antitrust Policy, 148, 345
51. F.C. Thorne, Florence C. Samuel Gompers: American Statesman, 1951, 127-129, (New York: Philosophical Library)
52. S. Gompers, Samuel, Seventy Years of Life and Labor, 1925, 1, 532, (New York: E.P. Dutton & Co.)
53. New York Times, 1899, August 28, 3; September 14, 1-2; September 15, 3; September 16, 3; September 17, 3
54. Johnson, National Party Platforms, 1, 121-124
55. Johnson, National Party Platforms, 1, 517-524, and 538–49
56. J.D. Clark, John D. The Federal Trust Policy, 115-119, House votes on previous strengthening amendments that reveal the sectional differences on antitrust can be found in Cong. Rec. 56–2, 6494 and 6500. The 1903 bill (which incorporated new penalties, but only for trusts thereafter organized) passed with no dissenting votes after Democratic strengthening amendments were defeated on voice votes. The February 28, 1903, Senate vote against consideration of the Littlefield bill is found in Cong. Rec. 57–2, 2792. Twenty-six of the thirty-one senators voting to take up the bill represented nonindustrial states of the south-plains-mountain periphery
57. A Statistical Study of Antitrust Enforcement, Posner, 366, Two other initiatives marked the institutionalization of antitrust policy in 1903: passage of an Expediting Act, which gave antitrust cases a fast track in the circuit courts, and a $500,000 appropriation devoted to Justice Department antitrust prosecutions—the first instance of an earmarked antitrust appropriation
58. Roosevelt, Law and Economic Policy in America, 245, quoted in Letwin
59. Roosevelt, Law and Economic Policy in America, 240-242
60. Thorelli, The Federal Antitrust Policy, 553, Cong. Rec. 57–2, 928. The bureau's mode of operation was soon revealed in its investigation of the beef trust, initiated by a House resolution. When the bureau issued its report in March 1905, it excluded the information it had gathered about the beef packers' trade-restraining practices (Letwin, Law and Economic Policy in America, 242)
61. R.A. Posner, Richard A. Antitrust Law, 1976, 85-86, Divestitures ordered as a result of Sherman Act prosecutions included (through 1920) Standard Oil, American Tobacco, DuPont (explosives), International Harvester, Corn Products, and Eastman Kodak, (Chicago: University of Chicago Press)
62. Legal Control over Cartels and Monopolization, 1880–1914: A Comparison, W.R. Cornish, William R. Law and the Formation of the Big Enterprises in the 19th and Early 20th Centuries, 1979, 287-303, Most economists (Posner included) grant little significance to changes in industrial structure as a result of the antitrust laws. Alfred Chandler concedes only that the laws discouraged monopoly in markets where concentration was already well advanced, and encouraged the transformation of monopoly into oligopoly (The Visible Hand, 375). Arguing for the primacy of technological and organizational developments, he seems to believe that American firms simply accomplished by merger what, in the absence of strong antitrust laws, European firms achieved by cartel. This argument overlooks the demonstrably higher level of antitrust prosecutions and private suits authorized by American law, as well as the differences in competition that resulted between the United States (even before the merger loophole in the Clayton Act was closed) and Europe. In the latter, particularly in Germany, cartels might legally incorporate all major producers, and cartel sanctions were enforceable at law and could be imposed by the government itself. See, ed. Norbert Horn and Jurgen Kocka (Gottingen, West Germany: Vandenhoeck and Ruprecht)
63. Antitrust Policy in Transition, 1908: Ideal and Reality, A.M. Johnson, Arthur M. Mississippi Valley Historical Review, 1961, 48, 420-431, (December)
64. The Federal Trust Policy, 136, An example of the intellectual/big business consensus can be seen in the proceedings of a 1908 symposium on trusts sponsored by the American Academy of Political and Social Science, which heard speakers denounce the Sherman Act as “absurd and mischevious” and endorsed the Hepburn bill. Clark
65. Koenig, Bryan, 436-439
66. Johnson, National Party Platforms, 1, 146
67. Letwin, Law and Economic Policy in America, 131-178, For a good discussion of the important post-Knight cases, see
68. Letwin, Law and Economic Policy in America, 267, Bill sponsors and identifications are taken from the Cong. Rec. Index 62–1 and
69. K.C. Martis, Kenneth C. The Historical Atlas of Congressional Districts, 1982, (New York: Free Press)
70. Control of Corporations, Persons and Firms Engaged in Interstate Commerce, Committee on Interstate Commerce, 1912, 2, 2534, Report to the U.S. Senate, Pursuant to Senate Resolution 98, 2854, 2836–50
71. M. Mintz, Morton, J.S. Cohen, Jerry S. Power, Inc., 1976, 99-100, The most detailed presentation of the periphery position was rendered by, (New York: Viking Press), 155, 577; and
72. R. Nader, Ralph, Taming the Giant Corporation, 1976, (New York: W.W. Norton), It is evident from the divergent uses anticipated by licensing advocates in the Progressive era that a federal charter mechanism could be made to serve a variety of interests. Thus, despite its broad appeal, disagreement over the component procedures and standards has kept corporate chartering in the hands of the fifty states
73. Harper's Weekly, 1913, 58, 18-19, Brandeis's defense of a “middle ground” approach can be found in (November 8), The legislative product was HR 15926, 62nd Cong., 2d sess., and S 3276, 62nd Cong., 1st sess. (the LaFollette-Lenroot bill)
74. The Rise and Demise of the World Capitalist System: Concepts for Comparative Analysis, Comparative Studies in Society and History, 1974, 16, 405, The diverse area position was most sharply presented in the Senate, where statewide constituencies incorporated both industrial and extensive farm economies. The role of diverse area congressmen in promoting compromise between polar core and periphery positions invites comparison between these regions and Wallerstein's “semi-periphery” in an international capitalist system. The promotion of political stability is, in Wallerstein's scheme, the major function of the “semi-periphery.” Immanuel Wallerstein, (September)
75. A.B. Sagaser, A. Bower, J.A. Bristow, Joseph A. Kansas Progressive, 1968, 128-135, On the periphery Republicans' cultural and policy-based antagonism toward the south, see, (Lawrence: University of Kansas Press)
76. R. Lowitt, Richard, George W. Norris: The Persistence of a Progressive, 1968, 128-135, (Urbana: University of Illinois Press)
77. The Democratic Surge, D. Sarasohn, David, 1976, 158-162, (Ph.D. diss., University of California at Los Angeles), In addition to the tariff, periphery Republicans objected to the agrarian Democrats' strong support for labor organizational rights (a commitment necessary to bind northern Democrats to the southern tariff and other policy positions, but obviously irrelevant to periphery Republicans). Among “progressive” or insurgent Republicans, only a few—like Robert LaFollette, whose “diverse” state constituency had both labor and farm sectors—gave strong and consistent support to labor guarantees. On this subject, see Sarasohn, “The Democratic Surge.”
78. M.I. Urofsky, Melvin I. A Mind of One Piece, 1971, 73-81, (New York: Scribner's)
79. A.S. Link, Arthur S. Wilson, 1956, 2, 34-35, The New Freedom (Princeton: Princeton University Press)
80. Wilson, The Road to the White House, 1947, 1, (Princeton: Princeton University Press), chap. 10
81. Johnson, National Party Platforms, 1, 169
82. P.E. Coletta, Paolo E. William Jennings Bryan, 1969, 2, 62, On Bryan's authorship, see, (Lincoln: University of Nebraska Press)
83. Koenig, Bryan, 487, 496. The northeastern wing of the party had virtually no influence on the content of the platform, except, through Bryan, on the labor plank. In fact, Bryan made a crusade of excluding the northeastern “corporation element” from the convention, a crusade for which he got Wilson's endorsement (Coletta, 69-70; Koenig, 484-95)
84. A.S. Link, Arthur S. The Papers of Woodrow Wilson, 1979, 29, 184, Williams to Wilson, January 13, 1914, Wilson Papers, Library of Congress; Wilson to Williams, January 27, 1914, (Princeton: Princeton University Press), Wilson's trust message was delivered to Congress on January 20, 1914
85. The Sherman Act and the New Antitrust Legislation II, A.A. Young, Allyn A. Journal of Political Economy, 1915, 23, 308-319, First drafted in four separate bills, the original provisions were somewhat softened (in response to strong business opposition) when merged into the omnibus Clayton bill. The major omission was a definitions section opposed by the attorney general and President Wilson. On the drafting of the Clayton Act, see, (April)
86. G.C. Henderson, Gerard C. The Federal Trade Commission, 1925, 24-26, (New Haven: Yale University Press)
87. Wilson: The New Freedom, 425-426, Link, The text of the House-passed bill was printed as House Report #6, 63rd Congress, 2d session
88. Letwin, Law and Economic Policy in America, 115, 123-128, The Supreme Court upheld the interpretation of union boycotts as restraints of trade in the “Danbury Hatters” case, Loewe v. Lawlor, 208 U.S. 274 (1908) and in Gompers v. Bucks Stove and Range, 221 U.S. 418 (1911). At the genesis of the latter case, AFL leaders had been sentenced to prison terms for ignoring a restraint of trade injunction issued against them for merely listing the firm's name in a “we do not patronize” list. Labor cases under the Sherman Act are discussed in, and 157-61; and
89. E. Berman, Edward, Labor and the Sherman Act, 1969, 1930; reprint New York: Russell and Russell)
90. Wilson: The New Freedom, 268, Link, In the 63rd Congress, there were seventy-eight Democrats representing districts in core industrial trade areas. Sixteen northern Democrats were themselves trade union members
91. The Enigma of the Clayton Act, D.L. Jones, Dallas L. Industrial and Labor Relations Review, 1957, 10, 206-211, On the labor provisions, see, (January)
92. The Sherman Act and the New Antitrust Legislation, Young, 321-322
93. The Response of the South to Woodrow Wilson's New Freedom, J.W. Davidson, John Wells, 1954, 228-233, (Ph.D. diss., Yale University)
94. The New York Times, 1914, 8, May 2, and May 27, 1914, 1
95. Cong. Rec., 1916, 64, 71, 7962, Rublee was later appointed by Wilson to serve on the FTC, but Senate opposition by both conservative Republicans and agrarian radicals prevented his confirmation. The Senate vote is found in
96. The Original Plan and Early History of the Federal Trade Commission, G. Rublee, George, Academy of Political Science Proceedings, 1926, 11, 116, (January)
97. The New York Times, 1914, 20, May 2, 1914, 8. A sampling of the business outcry can be found in the Senate Judiciary Committee's Correspondence File 63A-E5, National Archives, June 17
98. Cong. Rec, 63, 72, 9412-9413, and 12736–43
99. Cong. Rec., 63, 72, 9081-9082
100. The Original Plan and Early History of the FTC, Rublee, 116-117
101. Response of the South to Wilson's New Freedom, Davidson, 204-212, Periphery senators objected strongly to the standardless grant of regulatory authority to the new administrative body. Senators Clapp of Minnesota, Borah of Idaho, Reed of Missouri, Shields of Tennessee, Thomas of Colorado, and Fletcher of Florida all expressed strong objections to the bureaucratization of antitrust policy during the FTC debate
102. The Sherman Act and the New Antitrust Legislation II, Young, 315
103. Response of the South to Wilson's New Freedom, Davidson, 213-215, see also
104. B. Schwartz, Bernard, The Economic Regulation of Business and Industry, 1973, 3, 1748-1807, An abridged version of the Senate debate on court review has been published in, (New York: Chelsea House), As can be seen in table 4, the most zealous support for a strong and autonomous trade commission came from diverse area senators, but their number (seven votes in favor) was too small to secure passage. This last was accomplished with the votes of thirteen periphery Democrats who deserted their president and committee leaders to back the Cummins amendment, joined by seven periphery Republicans
105. 1914, 63-72, Senate Report #698, (July 22), The chairman of the Senate Judiciary Committee was Charles Culberson of Texas, a loyal, moderately progressive Democrat. Culberson, who was in bad health, apparently played no significant role in the revisions, other than as a conduit for the new administration line. Senator Cummins, a member of both the Judiciary and Commerce committees and linked to the northern progressives now in Wilson's favor, probably played the pivotal role in revising the Clayton bill to accommodate the new commission emphasis. The committee's rationale for weakening the government's evidence section, striking criminal penalties, or omitting specific prohibitions altogether was more frequently defended on the floor by Cummins than by Chairman Culberson
106. Cotton, War and Mississippi, J.L. McCorckle, James L. Jr., Journal of Mississippi History, 1983, 45, 90-113, On the cotton crisis, see, (May)
107. G.C. Osborn, George C. J.S. Williams, John Sharp, 1964, 248-249, (Gloucester, Mass.: Peter Smith), For the south, the outbreak of war brought economic devastation. As the cotton crop piled up on the docks, much of it unsellable (the German market being effectively closed by the British blockade), rates for scarce shipping services rose 300-1000 percent. In this situation, with mail pouring in from the region's farmers, merchants, and bankers pleading for federal help, cotton belt senators predictably gave less attention to the antitrust debate than they had a few months earlier. Mississippi Senator John S. Williams had devised a plan whereby the government would purchase and operate foreign-built ships to relieve the shipping crisis. The controversial plan could not possibly succeed without the president's strongest efforts. Perhaps for this reason, Williams, whose own preferred antitrust program was so different from that being composed in the Senate, kept publicly silent and generally voted the administration position on Clayton bill amendments, as did most other southern senators
108. Cong. Rec., 13907-14602, The few northern labor-backed Democratic senators—notably Hollis of New Hampshire, Hughes of New Jersey, and Kern of Indiana—also voted loyally with the committee-administration position. I have separately analyzed over twenty Senate Clayton Act amendments, which fall easily into three categories: committee-administration weakening amendments; noncommittee weakening amendments; and strengthening amendments (the bulk of which were offered by Senators Reed and Poindexter). Amendments in the first category were passed by large majorities, with little regional variation; those in the second lost by large majorities, meeting greatest opposition among southern, plains, and western senators; the third group generated unusual patterns, winning support from a small group of Pacific, southern, and northeastern Democrats, a few core Republicans probably casting strategic votes, and dissident midwestern and western Republicans. The major amendments are found in 63–2
109. Cong. Rec., 14464, There were a number of cases in which strengthening amendments were accepted by the committee and passed by voice vote, so that the picture gleaned only from recorded votes is overly bleak. For example, the holding company prohibition was strengthened when the Senate accepted motions by Senators Reed and Shields to change section 8 so that it prohibited intercorporate stock purchases “where the effect of such acquisition may be to … lessen competition” (the House version had said “is to … lessen competition”). In addition, a declaration that “the labor of a human being is not a commodity or article of commerce” was accepted by Culberson and added at the beginning of the labor exemption (section 6) by voice vote on the Senate floor (14591).
110. Original Plan and Early History of the FTC, Rublee, 114-115
111. Herbert Croly, Progressive Ideology, and the FTC Act, D.W. Jaenicke, Douglas W. Political Science Quarterly, 1978, 93, 477-480, (Fall), and 485–86
112. Cong. Rec., 63, 72, 15987, See 16280–85, 16329
113. Cong. Rec., 63, 72, 16322, So argued Rep. Nelson of Wisconsin
114. G. Kolko, Gabriel, The Triumph of Conservatism, 1967, (Chicago: Quadrangle Books), chap. 10
115. The Transformation of the Federal Trade Commission, 1914–1929, G.C. Davis, G. Cullom, Mississippi Valley Historical Review, 1962, 44, 441, (December)
116. M.R. Benedict, Murray R. Farm Policies of the United States, 1790–1950, 1953, 149-150, (New York: Twentieth Century)
117. E. Latham, Earl, The Group Basis of Politics, 1965, 54-58, On the FTC and the basing point case, see, (New York: Octagon Books)
118. The Transformation of the FTC, Davis, 441-442
119. Swift and Co. v. FTC, 1926, 272 U.S. 554
120. Duplex Printing Press Co. v. Deering et al., 1921, 254 U.S. 443
121. Berman, Labor and the Sherman Act, 103-110, On the latter, see
122. Labor, the Clayton Act and the Supreme Court, S.I. Kutler, Stanley I. Labor History, 1962, 3, 19-38, (Winter), Subsequent legislation (the Celler-Kefauver Act of 1950 and the Norris-LaGuardia Act of 1932) repaired the damage caused to the Clayton Act by these two decisions
123. The Sherman Act and the New Antitrust Legislation II, Young, 309
124. Wilson, 2, Link
125. The New Freedom, 426
126. R. Tugwell, Rexford, The Brains Trust, 1968, 227-278, See, for example, (New York: Viking Press)
127. Clark, The Federal Trust Policy, 245, Labor leaders in the 1920s and early 1930s had repeatedly asked for repeal of the Sherman Act. Cf.
128. Berman, Labor and the Sherman Act, 268
129. E. Hawley, Ellis, The New Deal and the Problem of Monopoly, 1966, On the genesis of the NIRA, see, (Princeton: Princeton University Press), chap. 1; and
130. B. Bellush, Bernard, The Failure of the NIRA, 1975, 1-30, (New York: W.W. Norton,)
131. Yale Law Review, 1934, 521-533, Douglas's comments on the 1933 law can be found, (Spring)
132. Comments: Amendments to the Securities Act of 1933, L.K. James, Laylin K. Michigan Law Review, 1934, 32-8, 1130-1138, On the transformation of securities regulation, see
133. D.A. Ritchie, Donald A. James M. Landis: Dean of the Regulators, 1980, 51-67, (Cambridge, Mass.: Harvard University Press)
134. Cong. Rec., 73, 82, 8706, “All I am trying to do,” said Senator Walcott, “is … to protect the business interests of the country by liberalizing the Securities Act, which does not protect business but injures business very seriously.”, Bipartisanship is more impressive in the Senate, since the elections of 1930–32 had decimated periphery Republican representation in the House
135. M. Parrish, Michael, Securities Regulation in the New Deal, 1970, 175-176, The Senate amendment to eliminate the “death sentence,” in favor of Securities Exchange Commission (SEC) discretion to eliminate holding companies where they were “detrimental to the interests of investors, consumers and the general public,” was offered by Senator Dieterich of Illinois, a Democrat. The conference committee bill compromised the issue by outlawing holding companies beyond the second degree and allowing the SEC to order further simplification into single, integrated systems. See, (New Haven: Yale University Press)
136. Cong. Rec., 74, 81, 9053, With southern legislators, the contrast was even more striking. States with significant textile industries—North and South Carolina, Virginia, Georgia, and Tennessee—cast eight of their ten votes for the Dieterich amendment, while the remaining six southern states (Alabama, Arkansas, Mississippi, Florida, Louisiana, and Texas) opposed it nine to one, It will be recalled that a state is here classified as “core,” “diverse,” or “periphery” according to the industrial levels (v.a.p.c.) of the trade area in which a majority of the state's population resided in 1929. Thus, North Carolina and Missouri were “periphery” states in spite of the existence of industrial centers in St. Louis and the Winston-Salem area. (The St. Louis trade area v.a.p.c. was under $200 and only 42 percent of North Carolina's population lived in the Winston-Salem trade area.)
137. Business, Bureaucracy and the Bourgeoisie, A. Stone, Alan, E.J. Harpham, Edward J. The Political Economy of Public Policy, 1982, 115-140, The legislation of the “two New Deals” is discussed in more detail in my essay, (Beverly Hills, Calif.: Sage,), My interpretation of the forces producing the “first” and “second” New Deals differs significantly from that of most historians, and of some participants as well
138. Jackson, Food and Drug Legislation in the New Deal, The legislative histories of the transportation bills are discussed in my article cited in note 90 and my paper “The Roots of Regulation: Economics and Politics before and during the 1970s,” presented at the annual meetings of the American Political Science Association, Denver, Colorado, September 2–5, 1982. The climate of committee reciprocity and executive dominance that marked the New Deal produced few roll calls on post-1935 bills. For example, the 1936 Robinson-Patman Act, which strengthened the Clayton Act's price discrimination section, was passed without a record vote. Designed to protect small businesses against the chain store's advantage with suppliers, the act was strongly supported by smaller grocers and retail druggists, but periphery congressmen concerned about the survival of small business were its major legislative sponsors. New York Democrat Emmanuel Celler was its most vocal congressional opponent. The Wheeler-Lea Act of 1938, which expanded FTC authority to act in cases involving potential injury to consumers (not just competitors) through deceptive advertising, also passed without record votes. It thwarted passage of stronger FDA legislation. See
139. A Statistical Study of Antitrust Enforcement, Posner, 366
140. Thurman Arnold, Antitrust, and the New Deal, G.M. Gressley, Gene M. The New Deal, ed. Bernard Sternsher, 1966, 46, (Boston: Allyn and Bacon,)
141. A Critical Appraisal of the Antitrust Policy of the United States Government from 1933 to 1945, K.A. Boedecker, Karl Adolph, 1947, 192, 205, 321, (Ph.D. diss., University of Wisconsin)
142. Thurman Arnold, Antitrust, and the New Deal, Gressley, 50-51, The power to suspend antitrust laws where prosecution might hamper the war effort was granted in Public Law 603, June 11, 1942
143. R. Moley, Raymond, After Seven Years, 1939, 374-375, This was the interpretation of disaffected brains truster, See his, (Lincoln: University of Nebraska Press)
144. F. Friedel, Frank, The New Deal in Historical Perspective, 1959, 18-19, (Washington, D.C.: American Historical Association Service Center for Teachers)
145. Thurman Arnold, Antitrust, and the New Deal, Gressley, 37
146. Resources Board's Findings and Recommendations, New York Times, 1943, 12, A discussion of this development is beyond the scope of this study, but some of the rudiments can be identified: the end of the unit rule for Democratic presidential nominations; the active involvement of federal employees in the primary and general elections of 1936–38 (a movement later halted by passage of the Hatch Act); and the work of the National Resources Committee, whose final report in 1943 sketched an ambitious and farreaching plan for a postwar welfare state. (On the latter, see, March 11
147. Arnold had made clear in his books, The Symbols of Government, 1935, (New York: Harcourt, Brace and World)
148. The Folklore of Capitalism, 1937, (New Haven: Yale University Press), that he shared neither the ethos nor the preferred (legalistic and combative) method of traditional antitrust activists—sentiments that caused him some difficulty with agrarian senators in his confirmation process
149. Nomination of Thurman W. Arnold, See U.S. Senate, Committee on the Judiciary, The Symbols of Government, 1938, 133-194, March 11, (75th Cong., 3d sess.). Arnold saw as competing symbols the individualistic “trial by combat” enshrined in the traditional antitrust movement (with its reliance on the formal legal system and criminal sanctions) and modern administrative government, “a symbol of efficiency and control.” His preference was clearly with the latter)
150. Thurman Arnold and the Antitrust Laws, C.D. Edwards, Corwin D. Political Science Quarterly, 1943, 58, 340-353
151. Thurman Arnold, Antitrust, and the New Deal, Gressley, 44-45
152. J.M. Blum, John Morton, V Was for Victory, 1976, 130-140, (New York: Harcourt Brace Jovanovich)
153. U.S. v. Hutcheson et al., 1941, Passage of the 1932 Norris-LaGuardia Act and a change in the personnel and philosophy of the Supreme court made possible the landmark decision in, 312 U.S. 219
154. Arnold and the Antitrust Laws, Edwards, 347-348, The case and its consequences are discussed
155. A.D. Neale, D.G. Goyder, The Antitrust Laws of the U.S.A, 1980, 6, 3d ed. (Cambridge: Cambridge University Press)
156. Cong. Rec., 1941, 77, 81, 4204, One indicator of regional sentiment is a Senate vote on a proposed cut of $750,800 in the ATD budget, on May 19, Senators from core industrial states split 10-10; senators from periphery and diverse states, 11-25. Both parties were divided (weakly) on regional lines. Southern textile states accounted for six of the periphery's ten votes to cut appropriations
157. Cong. Rec., 81, 82, 16452, Similar amendments had been proposed by the TNEC and introduced in earlier congresses by Senator O'Mahoney (see)
158. Bensel, Sectionalism and American Political Development, Relevant here are the decentralized character of U.S. labor law, state taxation differentials, national public works and defense expenditures, and the effects of national transportation and communications regulation, all of which have encouraged the geographic decentralization of industry and population. For a discussion of the decline of the core economy in the 1970s and the political repercussions of that decline, see, chap. 7
159. A. Stone, Alan, Economic Regulation and the Public Interest, 1977, See, for example, (Ithaca: Cornell University Press), chap. 10; and
160. M. Pertschuk, Michael, Revolt against Regulation, 1982, (Berkeley and Los Angeles: University of California Press)
161. Pertschuk, Revolt against Regulation, 23
162. Bureaucratic Discretion or Congressional Control?: Regulatory Policy Making by the Federal Trade Commission, B.R. Weingast, Barry R. M.J. Moran, Mark J. Journal of Political Economy, 1983, 91, 783-800, The connection between policy preferences of House and Senate Commerce Committee liberals and FTC activism is documented by
163. Stone, Economic Regulation and the Public Interest, 232-234
164. The Public Interest Movement and the American Reform Tradition, D. Vogel, David, Political Science Quarterly, 1980, 95, 607-627, On the “new class” see also, (Winter, 81), and. my own “Business, Bureaucracy and the Bourgeoisie” (on the 1930s) cited in note 90
165. W.G. Shepherd, William G. C., Wilcox, Clair, Public Policies toward Business, 1979, 171, For a graph of the merger wave in all three aspects, see, 6th ed. (Homewood, Ill.: Richard D. Irwin)
166. Cong. Rec., 1969, 91, 101, 13890-13907, The Neal Report was printed, (May 27)
167. American Bar Association, Report of the ABA Commission to Study the Federal Trade Commission, 1969, (Chicago: ABA)
168. E.C. Cox, Edward C. R.C. Fellmeth, Robert C. J.E. Schultz, John E. The Consumer and the Federal Trade Commission, 1969, (New York: Richard W. Baron Co.)
169. R.A. Katzmann, Robert A. Regulatory Bureaucracy: The FTC and Antitrust Policy, 1980, (Cambridge, Mass.: MIT Press), chap. 8; and FTC Docket #8934, September 1973. The Exxon case was dropped by the Reagan administration. An FTC critic has stated that the petroleum industry case consumed approximately 30 percent of the commission's antitrust enforcement budget in fiscal years 1977 and 1978
170. Bureau of Competition: Antitrust Enforcement Activities, W.J. Liebler, Wesley J. The Federal Trade Commission since 1970, 1981, 86, ed. Kenneth W. Clarkson and Timothy J. Muris (New York: Cambridge University Press)
171. Hearings on the Industrial Reorganization Act, 1973, 93, 101, 1167, U.S. Senate, Committee on the Judiciary, Subcommittee on Antitrust and Monopoly, March 12)
172. The Industrial Reorganization Act: An Antitrust Proposal to Restructure the American Economy, W.K. Jones, William K. Columbia Law Review, 1973, 73, 635-676, The hearings, which continued through early 1975, focused on particular sectors of the economy (automobiles, oil, computers, communications). An analysis of the Hart bill is presented in
173. H.J. Goldschmid, Harvey J. H.M. Mann, H. Michael, J.F. Weston, J. Fred, Industrial Concentration: The New Learning, 1974, 400-407, (Boston: Little Brown), for a study that exemplifies both the new respectability of antitrust among economists and law professors and the significance of the petroleum industry in the revival of antitrust debate. This work includes a discussion of the promise and practical difficulties in the Hart bill's approach. There is a (historically) remarkable exchange on, in which the Michigan senator defends deconcentration in tones strongly reminiscent of the agrarian antitrust movement (“the government would intervene, but only on a one-shot basis. It would restructure industries…[and then] get out of the market”), while Senator Roman Hruska of Nebraska defends largescale enterprise on grounds of efficiency and international competitiveness
174. Congressional Quarterly Almanac, 1974, 327-328
175. Pertschuk, Revolt against Regulation, 53, 54, In the only significant vote on the 1974 Magnuson-Moss bill, the House defeated an amendment by Rep. Eckhardt of Texas to add a consumer redress section similar to that in the Senate bill. Sixty-three percent of core representatives, but only 29 percent of periphery representatives, backed the amendment
176. FTC, Annual Report 1978, (section heading)
177. L.J. White, Lawrence J. Reforming Regulation, 1981, (Englewood Cliffs: Prentice Hall), chap. 15
178. Congressional Quarterly Almanac, 1979, 1980, 361-362, (Washington, D.C.: Congressional Quarterly, Inc.)
179. Johnson, National Party Platforms, 2, 935, Both vertical and horizontal (competing fuel) divestitures of petroleum companies were endorsed by the 1976 Democratic platform. See
180. Cong. Rec., 94, 102, 15870, The significance of the petroleum industry to the antitrust revival of the 1970s is indicated by remarks of Sen. Birch Bayh (D, Indiana) during debate on the 1976 “Parens Patria” bill. While Bayh speculated that earlier enactment of the Parens Patria bill might have made more drastic action unnecessary, he contended that “the energy sector of our economy has become so concentrated and intertwined that greater enforcement of the Sherman and Clayton Acts is not enough.” Hence the necessity, he argued, for passage of the divestiture bill (of which Bayh was a cosponsor)
181. E. Sanders, Elizabeth, The Regulation of Natural Gas: Policy and Politics, 1938–1978, 1981, On the consumer-coal coalition in the House, see, (Philadelphia: Temple University Press), chaps. 6 and 7
182. Sectionalism and American Political Development, 413, Bensel, in fact, suggests that Houston and Miami have achieved a “senior” status among periphery cities and may, in the not too distant future, become core cities), It should be noted, however, that one of the working-class Houston districts—that of Rep. Bob Eckhardt, Texas 8—narrowly defeated the outspoken consumer advocate in the 1980 election.
183. U.S. Department of Justice, Annual Report, 1979, 101, The grant program distributed $25 million to the states between 1976 and 1982. According to the Justice Department, it facilitated the hiring of several hundred new state antitrust personnel, improvement in state antitrust laws, and a doubling of the volume of state antitrust cases, (Washington, D.C.: Government Printing Office)
184. Annual Report, 1982, 141
185. Congressional Quarterly Almanac, 1976, 431-437, The compromise version allowed states to hire outside attorneys but only if a court approved their fees. An amendment by Senator Burdick of North Dakota to limit aggregation of damages in all state antitrust suits lost on a narrow 39-41 vote (with core senators voting 4-14; periphery senators, 31-15); a substitute amendment by Alabama Senator James Allen to prohibit the bill's application to states whose legislatures did not specifically approve it survived on an early 38–36 vote that split both parties along regional lines. The strength and persistence of periphery opposition in the Senate subsequently forced the bill's sponsors to accept significant restrictions. The final Senate version had not only limited state triple damages suits to price fixing and patent violations and banned contingency fee hiring, but also authorized attorneys' fees for prevailing defendants in some cases and permitted states to pass laws negating their own parens patria authority. See, for a synopsis of the debate and provisions of the parens patria bill
186. Congressional Quarterly Almanac, 1977, 552-554, 1978, 28; 1979, 343–45; 1980, 15–18; and
187. Pertschuk, Revolt against Regulation, 97-117
188. Illinois Brick Co. v. State of Illinois, 1977, 431 U.S. 730
189. Neale, Goyder, The Antitrust Laws of the U.S.A., 426-427
190. Congressional Quarterly Weekly Report, 1979, 917-918, May 12
191. Congressional Quarterly Almanac, 1979, 361-362
192. New York Times, 1985, November 10, FI, 26, and January 16, 1986, Dl
193. Newsweek, 1983, 50-52, August 29