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Home , Amos Pinchot, August 1912, Bureau of Corporations, Colonel Roosevelt, Governor of New Jersey, Judson Harmon

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Antitrust, Vol. 25, No. 3, Summer 2011. © 2011 by the . 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. , the Democratic challenger, adopt- ed a third approach urged on him by —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 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 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 and “one of the great campaigns in American history.”1 It Africa. While Roosevelt was in preparing to return to the was, according to one historian, “the decisive battle of , he received a long letter from Taft complaining the ,”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—, Theodore as unmanly.6 On his return in , Roosevelt visited Taft Roosevelt, and —had sharply divergent views on at his summer on the North Shore near . 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 , 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 . 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 , 1912: WILSON,ROOSEVELT,TAFT &DEBS—THE ELECTION THAT rumor he neither confirmed nor denied. Roosevelt did, however, CHANGEDTHE COUNTRY (2004); SIDNEY M.MILKIS,, THE begin to lay out his vision for a progressive platform, which he PROGRESSIVE PARTY, ANDTHE TRANSFORMATION OF AMERICAN (2009); called the “New Nationalism.” As part of this program, Roosevelt JOHN MILTON COOPER,JR.,WOODROW WILSON:ABIOGRAPHY (2009); , ROOSEVELT (2010); MARTIN I.UROWSKI,LOUIS D.BRANDEIS:A urged that the , which he had created, be LIFE (2009); THOMAS K.MCCRAW,PROPHETSOF 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); ,THE TRIUMPH Despite Roosevelt’s efforts, the Republican Party lost control OF (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 .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 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 .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 , 1912. Two days Convention later, Roosevelt asked the four Republican who were The Republican National Committee, dominated by Taft support- championing his candidacy to send him a written appeal on ers, convened in on June 6. Its first order of business behalf of the “plain people,” so that he would feel “honor bound” was resolving disputes over the credentials of delegates. to say yes. In public, however, Roosevelt continued to maintain Brushing aside claims by Roosevelt’s supporters that Taft had for another month that he was not a candidate.16 This public cha- acquired many of his delegates by patronage and fraud, the rade ended when Roosevelt, en route to a speech in Columbus, Committee instead disqualified many of Roosevelt’s delegates. Ohio, in late February, told an audience, “My hat is in the ring. The The Committee’s action prompted Roosevelt to break another fight is on and I am stripped to the buff.”17 important tradition and attend the convention in person. On Despite Roosevelt’s efforts to appear as the candidate of the Friday, , after receiving a telegram saying “C.Q.D.— . . . “plain people,” it was widely perceived that his decision to run Come Quickly, Disaster,” he and Mrs. Roosevelt boarded the was in direct response to Taft’s attack on his role in approving the overnight Lake Shore Limited from New York to Chicago.26 When U.S. Steel/TCI merger. The Hearst newspapers even ran a car- they arrived in Chicago, they were greeted by a crowd of more toon that “portrayed Roosevelt as a buxom beauty sauntering than 50,000, with a band playing “There’ll be a hot time in the past the ‘ Club,’ as Morgan, Rockefeller [and other old town tonight.”27 tycoons] ogled ‘her’ appreciatively from the windows, uttering The next evening, speaking to a packed auditorium, Roosevelt such bon mots as ‘Peach,’ ‘Beaut,’ ‘Pippin,’ and ‘Oh you kid.’”18 accused the Committee of “naked robbery.” He promised to carry Feeding this view was the fact that Roosevelt’s two “financial his fight to the floor of the convention, thundering: “We stand at angels” were former Morgan banker and U.S. Steel director Armageddon, and we battle for the Lord.”28 Roosevelt’s effort George Perkins and a wealthy newspaper publisher, Frank failed when the chairman of the convention, —former- Munsey, who was also a major investor in U.S. Steel and other ly a close friend who had served in Roosevelt’s cabinet but now Morgan enterprises.19 supported Taft—refused to overturn the Committee’s action.

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Roosevelt’s supporters then stormed out of the convention, of Ohio; Congressman of shouting, “steamroller, steamroller.”29 The next day, Roosevelt Alabama; and a little known, first-term from , declined to have his name put in nomination, leaving Taft large- Thomas Woodrow Wilson. After seven days and forty-six ballots, ly uncontested. and to almost everyone’s surprise, Wilson emerged as the party’s nominee. Roosevelt Forms a New Party Wilson was born in 1856 in Staunton, , where his That evening, Roosevelt’s advisors gathered in his suite to decide father had been a Presbyterian minister. “Tommy” was a poor stu- whether to bolt from the Republican Party and form a new third dent as a boy and a mediocre one as an undergraduate at party. At nearly 2 a.m., Roosevelt’s financial angels, Perkins and Princeton. After graduating from Princeton in 1879, Wilson briefly Munsey, strode into the middle of the room, put their hands on practiced law, but was unhappy and quickly shifted to academia. Roosevelt’s shoulders, and pledged their financial support, After earning one of the first Ph.D.s in political science from declaring, “Colonel, we will see you through.”30 With this assur- , Wilson taught briefly at Bryn Mawr ance, Roosevelt announced the birth of a new party the next day, before returning to Princeton, where he became an immensely on , in nearby Orchestra Hall. popular teacher and earned a reputation as one of the leading After a month spent organizing the new party, Roosevelt and political scientists in the country. his supporters returned to Chicago in early August for the Pro- Wilson became president of Princeton in 1902. Describing gressive Party’s inaugural convention. With no question as to the the school as little more than “a fine country club, where many of nominee, the only disputes involved the new party’s platform, with the alumni make snobs of their boys,”35 Wilson tried to institute the most contentious being the antitrust plank. One faction, led a wide range of reforms designed to strengthen the school’s aca- by ,31 favored a strong antitrust plank that would demic reputation and model Princeton more after and call for “strengthening the Sherman Law” and list an array of Cambridge. When the board of trustees rejected these reforms, “unfair trade practices” that should be outlawed. Another faction, Wilson—presaging his later unsuccessful battle for ratification of led by Perkins and Munsey, favored a plank that would recognize the after —twice appealed direct- that concentration was “both inevitable and necessary for nation- ly to the alumni in a series of speeches around the country, but al and international efficiency” and endorse Roosevelt’s propos- gained little support for overturning the trustee’s decisions. Twice al to create a “” to regulate trusts that defeated, Wilson resigned the presidency in 1910 to run for gov- behaved badly. Pinchot fired back: “The people will not for a ernor of New Jersey. moment stand for a commission, even of arch-angels, with power When he began his campaign for the gubernatorial nomination, to fix prices of necessaries of life and say which are good trusts Wilson initially presented himself as a so and which are bad trusts.”32 as to appeal to the political bosses. But after winning the nomi- Although he had written “utter folly” next to the plank Pinchot nation, Wilson stunned the 1910 convention with a “rousing had drafted, rather than rejecting it outright in favor of the Perkins/ speech” that endorsed a strongly progressive program, including Munsey version, Roosevelt sought a compromise between the stricter control of business.36 Wilson went on to win by almost a two camps with a plank that endorsed both the creation of a fed- 2-to-1 margin over his Republican opponent. Wilson’s successes eral trade commission and a strengthening of the Sherman Act in carrying out the progressive reforms in New Jersey that he had but omitted Pinchot’s list of specific unfair trade practices. The promised during the campaign opened the way to his nomination platform committee voted to accept Roosevelt’s changes, but for president in 1912 with strong support from the progressive the next day the committee’s chairman mistakenly proposed the wing of the party. original, Pinchot-drafted version of the antitrust plank, not Roosevelt’s revision. A stunned Perkins rushed over to Roosevelt The Candidates Spell Out Their Antitrust and protested that the Sherman Act “statement doesn’t belong Philosophies in the platform. We cut it out last night.”33 Roosevelt immediately Not surprisingly given the important role antitrust policy had ordered his press person to make sure the newspapers were played in the contest of the Republican nomination, Taft, given the platform with the offending language cut out, but they Roosevelt, and Wilson all devoted a substantial portion of their were instead, by mistake, given a version of the platform that acceptance speeches to laying out their competing antitrust pro- omitted the antitrust plank altogether. Pinchot and his faction grams. later claimed that their proposal had thus been “filched” by In his hour-long “Confession of Faith,” delivered at the new Perkins, proving to them the danger of having a “trust magnate” party’s convention on , Roosevelt repeated many of the in the senior leadership of the new party.34 arguments he had advanced in his Outlook article. Criticizing both the Sherman Act and Taft’s antitrust policies, Roosevelt The Democratic Candidate: Woodrow Wilson urged amending the law to recognize that “if we are to compete The Democratic Convention convened in on , with other nations in the markets of the world . . . we must uti- just a week after Roosevelt bolted from the Republican Party. lize those forms of industrial organization that are indispensable Going into the convention, four candidates were vying for the nom- to the highest industrial productivity and efficiency.” He argued ination: Speaker of the House of ; Governor that what the country needed was a “national industrial com-

84 · ANTITRUST mission” that could tell businesses in advance what they could 1875, just as Christopher Langdell was revolutionizing legal edu- legally do if they voluntarily came under its jurisdiction.37 cation by introducing the case method. Brandeis completed the In his acceptance speech one week earlier, on , Taft required two-year course of study with an average grade of 97, likewise repeated the themes he had consistently sounded dur- still the highest average ever compiled at the school.41 Practicing ing the primaries.38 Taft praised the Supreme Court’s decisions law in Boston, Brandeis had by 1912 acquired a reputation as in and American Tobacco, which the Court had hand- one of the nation’s preeminent business lawyers, as well as a ed down the previous year, claiming that they had for the first growing reputation as “the people’s lawyer” for his pro bono time given the Sherman Act “an authoritative construction which work in cases such as Mueller v. , in which his “Brandeis is workable and intelligible.” Countering Roosevelt’s attacks on brief” marshalling strong factual support for his legal arguments those decisions, Taft argued that the decrees in both cases were persuaded the U.S. Supreme Court to uphold an Oregon law lim- “working well” and had “introduced competition” into their indus- iting the hours women could be required to work in factories. tries. Taft also defended his record of vigorous antitrust prose- In , shortly after Wilson’s acceptance speech, cutions, saying they had been carried out “without fear or favor.” Brandeis, a long-time Republican who had earlier supported Because of his aggressive enforcement of the law, he claimed, La Follette for the Republican Party nomination, contact- “a number of these combinations illegally organized and main- ed the governor to offer both his congratulations and his assis- tained are now coming forward admitting their illegality and seek- tance. The two met for lunch at Wilson’s home in Sea Girt on ing a decree of dissolution, injunction, and settlement” in order . By the time Brandeis left three hours later, he had “to avoid the danger of the threats of prosecution and distur- persuaded Wilson to make the issue of monopolies a central bance of their business.” Thus, while paying lip service to the theme of his campaign and had begun to help Wilson formulate Republican platform’s call for a new industrial commission simi- a more substantive policy that would distinguish him from both lar to what Roosevelt was advocating, Taft’s speech left a strong Taft and Roosevelt.42 impression that he did not believe such a commission was nec- Through his law practice, Brandeis had developed consider- essary. able experience with issues relating to antitrust and the regula- Wilson delivered his acceptance speech on at his tion of business generally. He had written and lectured on the seaside summer home in Sea Girt, New Jersey.39 From his subject as early as 1893 in a series of lectures at the Massa- speech, it appears that Wilson did not yet have a distinctive pro- chusetts Institute of Technology.43 In his law practice, Brandeis gram for dealing with the trust problem. Acknowledging that “[u]p had represented and served on the board of the United Shoe to a certain point . . . great combinations effect great economies Machinery Company, a firm notorious for up its customers in administration, and increase efficiency by simplifying and per- through lease-only terms in order to weaken and then acquire fecting organization,” Wilson echoed Roosevelt in saying that smaller rivals. After initially defending this practice against efforts “[b]ig business is not dangerous because it is big,” but only in the Massachusetts state legislature to outlaw it, Brandeis when “its bigness is an unwholesome inflation created by privi- resigned from the company’s board when he became convinced leges and exemptions which it ought not to enjoy.” Wilson argued the practice could not be defended. Brandeis had also unsuc- that “[w]hile competition can not be created by statutory enact- cessfully taken on the House of Morgan in seeking to defeat the ment, it can in large measure be revived by changing the laws and efforts of Morgan’s New Haven & Hartford Railroad to acquire the forbidding the practices that killed it, and by enacting laws that competing Boston & Maine. will give it heart and occasion again.” But Wilson did not identi- In , after the Supreme Court handed down the fy what legislative changes his administration would propose to Standard Oil and American Tobacco antitrust decisions, achieve this objective. In contrast to Roosevelt and Taft, Wilson Senator Robert La Follette, a leader of the progressive Repub- seemed to offer little more than well-meaning rhetoric, devoid of licans, telegrammed Brandeis to ask him to take the next train to any specifics. Washington. Taking the night train from Boston, Brandeis imme- diately closeted himself with La Follette and two other Progressive The Teachings of Isaiah: Brandeis Adds Flesh to senators, Francis Heney of California and Irvine Lenroote of Wilson’s Antitrust Bones Wisconsin. Together, the four men worked out the basic provisions The man responsible for fleshing out Wilson’s antitrust program of an antitrust bill that La Follette introduced in the Senate the was a prominent Boston lawyer and progressive Republican next day. The bill had three main provisions. First, it sought to whom the Democratic had not yet met define what constituted a reasonable as opposed to unreason- when he was nominated, Louis D. Brandeis. Brandeis’s work able restraint of trade by identifying specific conduct that would with Wilson on antitrust and other issues involving the econom- be deemed unreasonable. Second, it proposed to place the bur- ic regulation of big business, and banks in particular, led to den on companies holding 30 percent or more of any market to Wilson appointing Brandeis to the U.S. Supreme Court in 1916, prove the reasonableness of their conduct. Third, it provided that where he would serve as an Associate Justice for twenty-three once a company was found guilty of violating the law in a govern- years and where his clerks would later refer to him as “Isaiah.”40 ment suit, competitors who had been adversely affected by the Brandeis was already something of a legend when he met company’s illegal conduct need only prove they had been harmed Wilson. He had arrived at the in the fall of to recover treble damages.

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At the ensuing hearings on the proposed legislation, Brandeis gernauts are licensed and driven by commissioners of the United sought to counter the arguments of those like George Perkins States.”47 Asking, “What has created these monopolies?,” Wilson who had testified that companies like U.S. Steel and Standard Oil answered: “Unregulated competition.” Therefore, we “can prevent had grown as a result of greater efficiency and had thereby these processes through remedial legislation, and so restructure helped give the American public the highest living standard in the the wrong use of competition [so] that the right use of competi- world. Citing one example after another, Brandeis tried to show tion will destroy monopoly.” Proclaiming “Ours is a program of lib- that trusts were no more efficient than smaller firms and had erty, theirs is a program of regulation,” Wilson made these prin- gained control of their markets not through greater efficiency, but ciples part of his overall platform, which he termed the “New by buying up their smaller competitors or forcing them out of busi- Freedom.” ness. “If we make competition possible,” he argued, “these mon- Wilson worried, however, that he still did not have an answer sters would fall to the ground.”44 to the question of how competition should be regulated. Wilson therefore asked Brandeis urgently to “set forth as explicitly as possible the actual measures by which competition can be reg- ulated.”48 In response, Brandeis wrote Wilson a series of letters, Providing Wilson a slogan he would use throughout parts of which Wilson immediately began weaving into his the campaign, Brandeis argued that the Democrats’ speeches. Thus, in Boston, on September 27, Wilson called for an industrial commission to “Aid in Administering the Sherman policy should be “to regulate competition” to prevent Act,” as Brandeis had suggested in one of his letters. A few days later, in Denver, Wilson listed specific practices that might be out- monopolies from forming, rather than regulating them lawed, such as “price fixing, tying contracts between manufac- turers and retailers, control of . . . raw materials, espionage, [and] after they formed, as Roosevelt proposed. cutthroat competition.”49 Over the remaining months of the cam- paign, Brandeis delivered a series of speeches and articles sup- With the 1912 election approaching, Congress was not yet porting Wilson’s candidacy and elaborating on these themes.50 In ready to take on so important an issue as antitrust and therefore them, Brandeis renewed his call for a statutory presumption that no further action was taken on Senator La Follette’s bill. Senator any combination that contained more than 30 percent of any mar- La Follette sought to rally progressive Republicans behind his ket should be deemed unreasonable unless the parties could own presidential bid in late 1911 and early 1912, but failed prove otherwise, an idea Wilson never embraced. when he suffered a nervous breakdown in the midst of the cam- paign and had to withdraw from the race. Having supported La Denouement: The Fall Campaign Follette, Brandeis turned to Wilson and the Democrats after Taft Taft, dispirited by his bitter fight with Roosevelt for the Republican secured the GOP nomination and Roosevelt deserted the nomination, fell back on the type of front-porch campaign incum- Republican Party. bent presidents had traditionally run, largely staying off the cam- Shortly after their Sea Girt lunch, Brandeis wrote a private paign trail. He spent much of August at his summer home in memo to Wilson reviewing what they had discussed. Brandeis Beverly, Massachusetts, enjoying the breezy golf links there. argued that Roosevelt’s new Progressive Party believed that pri- Back in Washington in the fall, Taft’s weight ballooned to 355 lbs. vate monopoly was inevitable in some branches of industry and by the time of the election. By contrast, Wilson and Roosevelt that existing trusts therefore should not be dismembered but crisscrossed the country, speaking as often as they could. Before “should be made ‘good’ by regulation.”45 To distinguish itself, the campaign was over, Roosevelt would visit 34 states, travel therefore, the Democratic Party should insist that “competition 10,000 miles, and deliver more than 150 speeches. Taft’s can be and should be maintained in every branch of private absence reinforced the sense that the election was a two-man industry; that competition can be and should be restored in race between Roosevelt and Wilson. At one campaign stop, when those branches of industry in which it has been suppressed by someone asked “Tell us about Taft,” Roosevelt shouted back, “I the trusts; and that, if at any future time monopoly should appear never discuss dead issues.”51 to be desirable in any branch of industry, the monopoly should be During the fall campaign, editorialists continued to focus on a public one . . . .”46 Providing Wilson a slogan he would use Roosevelt’s close ties to the House of Morgan, and to George throughout the campaign, Brandeis argued that the Democrats’ Perkins in particular. Roosevelt responded by saying he was policy should be “to regulate competition” to prevent monopolies “proud of having started a progressive movement that can attract from forming, rather than regulating them after they formed, as successful men, and not merely hacks and the failures of other Roosevelt proposed. political parties.”52 But students of the election believe his close- Wilson launched this new anti-monopoly message in a Labor ness to Perkins, coupled with the absence of an antitrust plank Day speech before 10,000 workers in Buffalo. Seeing Roosevelt, in the new party’s platform, did “incalculable damage” to his cam- not Taft, as his principal opponent, Wilson declared that where- paign.53 as Roosevelt proposed “to legalize and to welcome” monopolies, The fall campaign reached a moment of near tragedy when he did “not look forward with pleasure to the time when the jug- Roosevelt arrived in for a speech on October 14. En

86 · ANTITRUST route from his hotel to the auditorium, Roosevelt stood up in his as “one of the most important statutes ever passed in this coun- car to greet his well-wishers. At that moment, a stocky man try,”55 Taft defended the Supreme Court’s interpretation of the pushed forward, pulled out a Colt revolver, and shot at Roosevelt. Act. He argued that “[e]very other important trust . . . haled At first, Roosevelt did not realize he had been hit. The would-be before the Supreme Court in the twenty years which have elapsed assassin was John Shrank, a New Yorker obsessed with the fact since [E.C. Knight] has been condemned.”56 Taft complained that, that Roosevelt was seeking a third term. Even after he knew he despite this record, the Court’s use of the phrase “the rule of rea- had been wounded, Roosevelt insisted on proceeding to the son” in its decisions in Standard Oil and American Tobacco had auditorium to deliver his speech, saying “I will deliver this speech “brought out the condemnation of everybody of demagogic ten- or die, one or the other.”54 As he began his speech, Roosevelt dencies prominent in politics, and evoked from statesmen of lit- asked the crowd: “Friends, I shall have to ask you to be as quiet tle general information and less law, proposals to amend the as possible. I do not know whether you fully understand that I statute, ‘to put teeth’ into it . . . .”57 “,” Taft responded, have been shot. But it takes more than that to kill a Bull Moose.” “is that . . . [n]o man who reads this series of decisions need be He explained that the thick manuscript of his speech had prob- doubtful whether, when he is making a business arrangement, he ably saved his life. “The bullet is in me now, so that I cannot is violating the law or not. [I]f what he is going to do is to reduce make a very long speech. But I will do my best.” Roosevelt then competition and gain control of the business in any particular spoke for over an hour. When he was finally taken to the hospi- branch, if that is his main purpose and reduction of competition tal, doctors found that the bullet had lodged along the fifth rib, is not a mere incidental result . . . then he must know he is vio- less than an inch from his heart, making it too dangerous to lating the law.”58 Taft added that because of these decisions, remove. “[n]ew combinations of large capital are few in number,” and Despite the outpouring of sympathy for Roosevelt following his “[m]any companies, rather than stand the test of litigation, are attempted assassination, Wilson easily won the election three consenting to dissolution by agreement with government author- weeks later, with 6.3 million votes to 4.1 million for Roosevelt ities.”59 Taft argued, therefore, against efforts to amend the Act, and 3.5 million for Taft. With Roosevelt and Taft splitting the urging that “[t]he very value of the statute . . . is its general and Republican vote, Wilson carried 40 states and 435 electoral widely inclusive language, which embraces every form of scheme votes. Roosevelt was second with six states and 88 electoral to suppress competition and control prices and effect monop- votes, while Taft won only two, and Utah, with just eight oly.”60 electoral votes. Wilson’s sweeping victory allowed the Democrats Taft’s arguments failed to carry the day, just as they had dur- to take control of both the House and Senate, as well. ing the 1912 election. Reading a mandate into his victory in that election, Woodrow Wilson implemented the ideas of Louis Epilogue: Taft Continues to Battle for Sound Antitrust Brandeis through the enactment of the Clayton Act, which sought After the election, Roosevelt returned to his foreign adventures, to define more clearly what conduct would be unlawful, and the destroying his health on an expedition to the headwaters of the Federal Trade Commission Act, which created a new administra- Amazon. He died in his sleep in 1919 at the age of sixty, just a tive agency to define and regulate “unfair methods of competi- few months after his youngest son, Quentin, was killed in World tion.” These new statutes supplemented the Sherman Act’s com- War I. Wilson was successful during his first term in enacting mon law model with more of a civil law, administrative system. large parts of his New Freedom program, including two new anti- These two complementary systems have co-existed in the United trust laws, the Clayton Act and the Federal Trade Commission Act. States ever since. How the two models have developed over the In his second term, Wilson was forced to turn his attention to years and the conflicts between them is what we will study in international affairs as America was dragged into World War I. later articles in this series.Ⅵ After helping the allies win the war and being hailed as a hero in Europe, Wilson had both his hopes for world and his health ruined in an unsuccessful effort to secure U.S. ratification 1 SIDNEY M.MILKIS,THEODORE ROOSEVELT,THE PROGRESSIVE PARTY, ANDTHE of the Versailles Treaty and the . Wilson suf- TRANSFORMATION OF AMERICAN DEMOCRACY 1 (2009). fered a massive stroke in , and was a near-invalid 2 Id. until his death in 1924. 3 JAMES CHACE, 1912: WILSON,ROOSEVELT,TAFT &DEBS—THE ELECTION THAT Taft, following his defeat, returned to Yale, where he had been CHANGEDTHE COUNTRY 6 (2004). 4 an undergraduate, to become Professor of Law. He taught The fourth candidate, Eugene Debs, representing the Socialist Party, also made control of big business one of the keynotes of his campaign, but law there until he achieved his life’s grandest ambition when focused more on labor issues. See id. at 7– 8. President Warren Harding appointed him Chief Justice in 1921, 5 See William Kolasky, Theodore Roosevelt and William Howard Taft: Marching an office he held until his death in 1930. (Among his colleagues Toward Armageddon,ANTITRUST, Spring 2011, at 97. was Associate Justice Louis Brandeis, whom Wilson had appoint- 6 EDMUND MORRIS, 88–89 (2010). ed to the Court in 1916.) 7 Id. at 97. While at Yale, Taft wrote a series of articles for the New York 8 Id. at 101. Times, which he published in a treatise entitled Federal Anti- 9 Id. at 90. Trust Act and the Supreme Court. Characterizing the Sherman Act 10 See Diverse Trust Views in Stanley Report; Democrats and Republicans Split

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Hopelessly Over Tennessee Coal and Iron Deal, N.Y. TIMES, July 24, 1912, 50 See, e.g., Louis Brandeis, Trusts and Efficiency,COLLIER’S WKLY, Sept. 14, at 1. 1912, available at http://law.louisville.edu/library/collections/bran- 11 See Kolasky, supra note 5, at 103. deis/node/215; Louis D. Brandeis, The Regulation of Competition Versus the Regulation of Monopoly, An Address to the Economic Club of New York 12 Id. (Nov. 1, 1912), available at http://law.louisville.edu/library/collections/ 13 MORRIS, supra note 6, at 151–52. brandeis/node/260. 14 CHACE, supra note 3, at 100. 51 CHACE, supra note 3, at 199. 15 Id. 52 MILKIS, supra note 1, at 214. 16 EDMUND MORRIS, supra note 6, at 163–65. 53 See KOLKO, supra note 30, at 194. 17 Id. at 170. 54 CHACE, supra note 3, at 230–33. 18 JOHN A.GARRATY,RIGHT-HAND MAN:THE LIFEOF GEORGE W. PERKINS 254–55 55 WILLIAM HOWARD TAFT,THE FEDERAL ANTI-TRUSTANDTHE SUPREME COURT 2 (1957). (1914). 19 CHACE, supra note 3, at 109. 56 Id. at 129–30. 20 MORRIS, supra note 6, at 181. 57 Id. at 94. 21 CHACE, supra note 3, at 110. 58 Id. at 96. 22 MORRIS, supra note 6, at 183–85. 59 Id. at 130. 23 CHACE, supra note 3, at 111. 60 Id. at 133. 24 Id. at 112. 25 MORRIS, supra note 6, at 187. 26 MILKIS, supra note 1, at 110. 27 MORRIS, supra note 6, at 194–95. 28 Id. at 197–98. 29 Id. at 202–06. 2011 30 GABRIEL KOLKO,THE TRIUMPHOF CONSERVATISM 195 (1963). 31 Pinchot was a thirty-nine year old New Yorker and was the son of a wealthy LAW STUDENT wallpaper manufacturer. He lived in a handsome mansion on Park Avenue and had a reputation of being a “clubman” and “society swell.” His broth- WRITING er, , had been Roosevelt’s Chief Forester, whose firing by Taft in a dispute over conservation policy had helped poison Roosevelt’s rela- tionship with Taft. See GARRATY, supra note 18, at 265–66. COMPETITION 32 MILKIS, supra note 1, at 177–78. WINNER 33 Id. at 179. 34 GARRATY, supra note 18, at 288–89. The winner of the ABA Section 35 CHACE, supra note 3, at 47. of Antitrust Law’s Annual Law 36 Id. at 52. Student Writing Competition is 37 Theodore Roosevelt, A Confession of Faith, Speech to Progressive Party Matthew J. Jakobsze, a third- Convention, Chicago (Aug. 6, 1912), available at http://www.teaching americanhistory.org/library/index.asp?document=613. year student at Northern Illinois University College of Law. 38 Speech of William Howard Taft Accepting the Republican Nomination for President of the United States, Delivered at Washington, DC, Aug. 1, 1912, Matt’s winning article is reprinted in Document No. 12, U.S. Senate, 62d Cong., 2d Sess. (Aug. 9, entitled, “Kicking ‘Single-Entity’ 1912). to the Sidelines: Reevaluating the 39 Woodrow Wilson, Speech of Acceptance, Delivered at Sea Girt, N.J., Aug. 7, Competitive Reality of Major League Soccer after American 1912, in THE 1912 CAMPAIGN SPEECHESOF WOODROW WILSON (John Wells Needle and the 2010 Collective Bargaining Agreement.” Davidson ed., 1956). He has two other published articles: “Seriously Considering 40 MARTIN I.UROWSKI,LOUIS D.BRANDEIS:ALIFE 741 (2009). Series LLCs” and “Felony-Murder & Afterthought Felonies 41 Id. at 31; but see Brad Snyder, The Judicial Genealogy (and Mythology) of John in Illinois: Trading Intent for Time and Place.” : Clerkships from Gray to Brandeis to Friendly to Roberts, 70 OHIO ST. After graduation, Matt hopes to explore his interests and L.J. 1149, 1170 & n.106 (2010) (noting that Harvard revised its grading practice in the area of sports law or entertainment law as scale in the making comparisons between Brandeis’s record and those of later graduates questionable). they relate to labor and antitrust matters. In his spare time, Matt enjoys playing and coaching soccer, running, and 42 See Gov. Wilson Agrees with Mr. Brandeis, N.Y. TIMES, Aug. 28, 1912, at 1. reading. 43 UROWSKI, supra note 30, at 304–05. As the prize winner in the competition, Matt received 44 Id. at 318–19. an all-expense paid trip to Washington, D.C., for the ABA 45 MILKIS, supra note 1, at 205. Section of Antitrust Law’s Spring Meeting. 46 Id. 47 CHACE, supra note 3, at 195. For more information on the Writing Competition 48 Id. at 195. and the Section of Antitrust Law, visit 49 Sina Kian, The Emergence of Woodrow Wilson’s Anti-Trust Policy (unpub- http://www.americanbar.org/groups/antitrust_law.html. lished paper 2007), available at http://www.thepresidency.org/storage/ documents/Calkins/Kians.pdf.

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