FEATURES Antitrust, Vol. 25, No. 3, Summer 2011. © 2011 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. the former president turned insurgent, thought combination and cooperation were essential to efficiency, so he wanted instead for government to regulate large companies through an administra- tive agency like the Interstate Commerce Commission, rather than prosecute them. Wilson, the Democratic challenger, adopt- ed a third approach urged on him by Louis Brandeis—namely, to prevent monopolies from forming by “regulating competi- tion,” rather than regulating the monopolies after they formed as Roosevelt urged or prosecuting them as Taft was doing. With Taft and Roosevelt splitting the Republican vote, Wilson would emerge the victor. His election would result in changes to TRUST BUSTERS antitrust policy the reverberations of which we are still feeling— and debating—one hundred years later. The Election of 1912: Roosevelt and Taft The last article in this series examined the growing tension A Pivotal Moment in between Roosevelt and Taft over antitrust policy, culminating in Taft’s decisions to challenge two trusts affiliated with the House Antitrust History of Morgan—U.S. Steel and International Harvester—whose for- mation and growth Roosevelt had blessed.5 This disagreement between the two presidents over the proper shape of antitrust BYWILLIAMKOLASKY policy was just part of a broader estrangement between the two former friends. “Teddy” Roosevelt, the youngest man ever to serve as presi- dent, had just turned fifty when he relinquished the office to his good friend “Will” Taft in 1909. In the first year and a half after HE ELECTION OF 1912 HAS BEEN CALLED he left office, Roosevelt spent most of his time in Europe and “one of the great campaigns in American history.”1 It Africa. While Roosevelt was in England preparing to return to the was, according to one historian, “the decisive battle of United States, he received a long letter from Taft complaining the Progressive era,”2 and to another, “a defining about his “hard luck” since becoming president, especially his T 3 moment in American history.” It was also the only presidential wife’s stroke and the “storm of abuse” he had suffered from the election in which antitrust policy was a major issue. press. Roosevelt was disgusted by Taft’s “whining,” which he saw The three main candidates—William Howard Taft, Theodore as unmanly.6 On his return in June 1910, Roosevelt visited Taft Roosevelt, and Woodrow Wilson—had sharply divergent views on at his summer White House on the North Shore near Boston. At how government should regulate a modern industrial economy.4 this meeting, the strain between the two men was already “pal- Taft, the incumbent, supported the law enforcement model as pable.”7 Later, at home in Sagamore Hill, Roosevelt put his hands embodied in the Sherman Act, under which companies would be on the shoulders of two old friends and said, “I could cry over prosecuted or even broken up if they violated the law. Roosevelt, Taft.”8 “Political pilgrims” began calling on Roosevelt almost imme- 9 William Kolasky is a Partner, WilmerHale, Washington, DC, and an diately, seeking to re-engage him in Republican politics. That Associate Editor of this magazine. There are a wealth of books about the summer and fall, Roosevelt responded by campaigning vigor- Progressive Era that highlight the decisive importance of the election of ously to help the Republican Party retain control of both the 1912. This account is drawn largely from the following secondary sources, House and Senate. The energy Roosevelt threw into this cam- which contain overlapping narratives of many of the events it describes: paign sparked reports that he might oppose Taft in 1912, a JAMES CHACE, 1912: WILSON,ROOSEVELT,TAFT &DEBS—THE ELECTION THAT rumor he neither confirmed nor denied. Roosevelt did, however, CHANGEDTHE COUNTRY (2004); SIDNEY M. MILKIS,THEODORE ROOSEVELT, THE begin to lay out his vision for a progressive platform, which he PROGRESSIVE PARTY, ANDTHE TRANSFORMATION OF AMERICAN DEMOCRACY (2009); called the “New Nationalism.” As part of this program, Roosevelt JOHN MILTON COOPER,JR.,WOODROW WILSON:ABIOGRAPHY (2009); EDMUND MORRIS,COLONEL ROOSEVELT (2010); MARTIN I. UROWSKI,LOUIS D. BRANDEIS:A urged that the Bureau of Corporations, which he had created, be LIFE (2009); THOMAS K. MCCRAW,PROPHETS OF REGULATION (1984); LEWIS L. given more authority to regulate trusts, instead of relying on the GOULD,THE WILLIAM HOWARD TAFT PRESIDENCY (2009); JOHN A. GARRATY,RIGHT- Sherman Act to do the job. HAND MAN:THE LIFEOF GEORGE W. PERKINS (1957); GABRIEL KOLKO,THE TRIUMPH Despite Roosevelt’s efforts, the Republican Party lost control OF CONSERVATISM (1963); and MARTIN J. SKLAR,THE CORPORATE RECONSTRUCTION of the House in the 1910 mid-term election and nearly lost OF AMERICAN CAPITALISM, 1890–1916 (1988). I have supplemented these control of the Senate as well. The election’s outcome fueled excellent secondary sources with a number of primary sources, which are identified in the endnotes attached to the material drawn from them. Roosevelt’s growing disenchantment with Taft. The strain between the two men grew deeper in the summer of 1911, when Roosevelt 82 · ANTITRUST was summoned to appear before the congressional Stanley Steel The Republican Primaries Investigating Committee to defend his approval of U.S. Steel’s pur- Roosevelt’s strategy was to win the nomination by defeating Taft chase of Tennessee Coal & Iron (TCI). Taft urged Roosevelt not to in those states with direct primaries. Initially, both Roosevelt testify, saying that doing so would demean the office of the pres- and Taft honored the tradition of not campaigning personally. idency, but Roosevelt ignored him. Taft quickly solidified his support in those states without pri- The Stanley Committee delivered a mixed verdict in August maries, collecting nearly half the delegates needed to win. 1911, with the Democratic majority sharply critical of Roosevelt’s Sensing the need to change the rules, Roosevelt broke with tra- action.10 But this was nothing compared to the blow Taft and his dition. Protesting that “[t]hey are stealing the primary elections attorney general, George Wickersham, delivered three months from us,”20 he embarked on “one of the most grueling cam- later when they filed suit accusing U.S. Steel of monopolizing the paigns in American political history,” crisscrossing the country U.S. steel industry. Citing the TCI acquisition as a part of U.S. and speaking as often as ten times a day, until “his voice almost Steel’s pattern of monopolistic conduct, their complaint alleged gave out as the spring wore on.”21 that Roosevelt had not been “fully acquainted with” the relevant Roosevelt quickly ran up a string of victories, forcing Taft to facts when he signed off on the merger, directly contradicting join him on the campaign trail, something no sitting president had what Roosevelt had told the committee.11 Furious, Roosevelt ever done. Speaking in Boston, on the eve of the Massachusetts penned an article for the Outlook entitled The Trusts, the People, primary, Taft justified his decision by explaining that “[t]he ordi- and the Square Deal.12 In it, he not only defended his action in nary rules of propriety that restrict a President in his public approving the TCI merger, but went on to praise his own antitrust addresses must be laid aside, and the cold, naked truth must be enforcement record, while sharply criticizing Taft for being too stated.”22 Back on his train, Taft told a reporter, “Roosevelt was aggressive in enforcing the Sherman Act. my closest friend,” put his hands on his head, and began to Roosevelt’s article almost immediately triggered new specu- weep. Roosevelt struck back the next day in Worchester, accus- lation that he would challenge Taft for the presidency. The Boston ing Taft of “the grossest and most astounding hypocrisy” for Globe described it as an “editorial explosion,” and the New York claiming he had been loyal to Roosevelt’s progressive policies.23 World asked, “Has Theodore Roosevelt Now Become Mr. Morgan’s The “climactic battle” of the primaries came in May in Taft’s Candidate for President?”13 Over the next month, Roosevelt home state of Ohio.24 Both Roosevelt and Taft hired special “clubs” began to spring up around the country. Just before trains to traverse the state, speaking in nearly all of Ohio’s eighty- Christmas, Roosevelt himself wrote that he saw the Outlook arti- eight counties as their “personal invective grew terser and ugli- cle “as bringing me forward for the Presidential nomination.”14 er.”25 In the end, Ohio was a disaster for Taft, who lost decisive- Thus, while 1911 ended with Roosevelt insisting publicly, “I am ly. Roosevelt ended with more than 250 delegates in states with not and will not be a candidate,” he was privately telling his sup- primaries to just 48 for Taft, leaving the candidates in a virtual porters that, “I do not feel it would be right and proper for me to tie in committed delegates going into the Republican convention. say that under no circumstances would I accept it if it came.”15 With this encouragement, Roosevelt supporters formed a Taft Beats Back Roosevelt’s Challenge at the “Roosevelt National Committee” on January 16, 1912. Two days Convention later, Roosevelt asked the four Republican governors who were The Republican National Committee, dominated by Taft support- championing his candidacy to send him a written appeal on ers, convened in Chicago on June 6.