I maintain that, notwithstanding the greater enforcement activity of the last ten years, we have never broadly applied the Sherman Act to the concentration of economic power in American industry. The tools which have been given the Department of Justice are like slingshots—wholly inadequate as against the Goliaths of American industry. Admitting that the antitrust laws can in some respects be strengthened by legislative action, I do not think that the primary difficulty is with the laws themselves. There are new laws that ought to be passed, such as the Kefauver bill to amend Section 7 of the Clayton Act. I also think there is great merit to the civil penalty proposal that has been advanced from time to time, but I do not think the fundamental trouble is in the law itself.
The real reason, in my judgment, why the Sherman Act has not been more effective is that the annual appropriation for its enforcement has never been anywhere near adequate for the accomplishment of effective economic results. A statute such as the Sherman Act is not selfexecuting. It lives by appropriations. Not unil the fiftieth year of the Sherman Act was as much as one million dollars appropriated annually for its enforcement. Between 1908 and 1935, the appropriation varied between $100,000 and $300,000. In 1936 the figure was increased to $439,000. In 1939 it had increased to about $800,000; and for the fiscal years of 1940 and 1941, to an all time high of about $1,300,000.
Between 1943 and 1946 the appropriation ranged, in round numbers, between $1,500,000 and $1,870,000; in 1947 it went up to a little over $2,000,000; in 1948 it went up to $2,400,000; and the current appropriation is about $3,400,000. Although there has been some increase in the appropriation in recent years, it should be remembered that enforcement costs are now much higher. Whereas in 1938 it was possible to secure good lawyers at from $3,000 to $5,000 per year, and to get satisfactory law clerks at $1800 to $2,000 per year, the government now must pay on the average twice as much for the same type of legal talent. Other enforcement costs are also correspondingly higher. Therefore, the additional funds available for enforcement in the last few years do not accurately measure the additional enforcement effort that has been provided. You will find that the staff today is not much larger in terms of manpower than the prewar staff on a much smaller appropriation. I am informed that the professional staff at present numbers 329 as against an average of 281 for fiscal year 1942.
As a result of our niggardly policy toward appropriations for antitrust enforcement, the resources available against all violators in one year were less than the sums expended by defendants in a single antitrust case. When I was in the Department, the Antitrust Division proceeded against the patent monopoly in the field of glass containers or bottles. That was the now famous Hartford Empire case. There were eight major defendant corporations. I learned at that time that one of these corporations expended approximately $900,000 in the trial of the case in the District Court and an estimated $500,000 more in prosecuting its appeal to the Supreme Court and in the final settlement of the decree. The expenditures of the other seven defendant corporations were not known exactly, but they exceeded a million dollars. These sums should be viewed in the light of the fact that the entire appropriation of the Antitrust Division for the years in which the Hartford Empire case was pending, except for the year 1942, had been less than $2,000,000.
The government willingly expends millions of dollars annually to conserve the fertility of the soil. No one should question the necessity of protecting our basic natural resources. But is it not equally obvious that the fundamental social resource of the American economy—freedom of economic opportunity—merits as much consideration. Neglect in conserving either our physical resources or our free competitive economy can have equally irreparable consequences.
How large an appropriation is needed annually for antitrust enforcement? It is difficult to answer this question in the abstract. I think it should be progressively increased each year until we begin to be satisfied with the results. I suspect that the job requires ultimately an annual appropriation of somewhere between $10,000,000 and $15,000,000. But as one who for several years was charged with the responsibility for antitrust enforcement, I realize that it would not be practical to grant such an increase all at once. The recruiting of qualified lawyers and economists, training them for their work, and organizing them into effective operating units requires planning and careful administration, and it cannot be done overnight. The present head of the Antitrust Division can best tell what are the immediate needs. I should suppose that the amount should be increased substantially each succeeding year until a point is reached where Congress believes the results are adequate.