What is the criterion of adequacy in antitrust enforcement? Today when our criminal laws are violated we have reasonable confidence that in most cases the violators will be apprehended and punished. Our criminal administration is not perfect by any means but we do have the confidence that on the whole our police forces, investigative agencies, and prosecuting attorneys are on top of their job. In the usual case persons who commit fraud or engage in other commercial crimes are apprehended and tried in courts of law. And the same can be said as to crimes of violence.
When the time comes that businessmen recognize the generality of antitrust enforcement to the extent that they refrain from entering into conspiracies, combinations, and agreements in restraint of trade, we will know that the Antitrust Division is attaining the potency that the job requires. When our monopoly-controlled industries have been deconcentrated to a point where new business organizations can form and enter the competitive picture without bucking artificially imposed barriers, we will know that the Sherman Act has been made effective. Technology must be freed from monopoly control. Monopoly control over basic materials, necessary for use in fabricating industries, must be terminated so that small business can get ready access to such materials. We should not seek to prevent efficient operating units from enjoying the advantage that comes from sheer efficiency; but we should deprive large corporate aggregations of any advantage that comes from artificial restraints of trade or from the power to exclude competitors from the market.
I should say that the government ought to seek two general objectives under the antitrust laws: (1) It should attack by divestiture or dissolution actions those corporate structures which in and of themselves have attained the power to exclude competitors from the market. Effective legal actions of this type must be grounded upon thorough economic research and a full comprehension of the various ramifications of the industry involved. The preparation and trial of such suits takes a great deal of time and manpower, but the objective must be accomplished in many of our industries if independent enterprise is to have any future chances of survival. Successful preparation of such cases requires a competent staff of economists and experts as well as lawyers—men with specialized experience and knowledge of the particular industries under scrutiny.
(2) It should provide a broader enforcement against conspiracies and agreements among nominal competitors to fix prices, limit production and otherwise to refuse the public the benefits of real competition. This type of enforcement requires a large organization and many field offices throughout the country. It requires getting down to restraints which often operate only on a local level. A small businessman may be eliminated from the market in his community by the combination of local competitors with manufacturers or wholesalers to monopolize the distribution of a product locally. To the small businessman who is being squeezed out in such a process, the enforcement of the Sherman Act is extremely important even though his operations may be infinitesimal in relation to the national picture. The point is that the accumulation of
thousands of such restraints on the local level throughout the country has tremendous economic significance. Sporadic enforcement on behalf of small business accomplishes very little except for the few beneficiaries in particular cases. I know that the files of the Antitrust Division abound with complaints, many of which are meritorious, that the Division has never been able adequately to investigate. Investigation in many of these would reveal glaring violations of law which should be prosecuted. Moreover, many small businessmen lack the resources to employ counsel or make a trip to Washington to present their complaints. A widespread system of field offices would help. The Antitrust Division has some field offices, but not enough.
There is a good deal of cynical discussion about the ineffectiveness of the antitrust laws. I have always felt that it was out of order to dismiss the Sherman Act as unenforcible before enforcement has been given a fair trial. It may be anomalous to say that enforcement has not had a fair trial when the law has been on the books for fifty-eight years, but that is the fact.
And no one within my knowledge has yet produced a workable alternative to the enforcement of the Sherman Act. The consequences to capitalism and democracy of doing nothing at all about the problem, I have already discussed. If the antitrust laws are not the proper approach, then what is? "Self-regulation" by industry is out. It is simply a gloss for monopoly control. The government cannot escape its responsibility. If that responsibility is not to be exercised through the antitrust laws, then it would have to be performed through bureaucratic regulation of industry by boards or commissions. Without laboring the point, I want to say that I believe that a system of such regulation for all industry would be abhorrent to the American people, and furthermore I do not think it would work. Effective regulation of industry by a board or a commission to prevent monopoly and restraint of trade would require a bureaucracy that would dwarf anything that we have ever contemplated. It probably would not work, and if it did it would be a menace to freedom.
So, I come back to the basic proposition that the premises of the antitrust laws are sound. They contemplate that the vast area of American industry shall be free from bureaucratic regulation, but shall be subject to the prohibitions of the law against restraints of trade and monopolization. So long as business does not offend these prohibitions, it has freedom of choice in making the important decisions regarding production and distribution practices and policies. We must make the antitrust laws work if we are to escape the alternatives—which are socially, economically and politically undesirable. The answer is to be found in strong, undeviating Congressional demand and support for a vigorous antitrust enforcement policy.