Faculty of Humanities Alessio Cioli Rethinking Early Antitrust History: From the Sherman Act to Theodore Roosevelt The “Trust Problem” as a Fundamental Issue in Modern History, or the Historical Reasons for the Re-articulation of the Power Relationship between “Big Business”, Society and the State in the Nascent Industrial Mass Civilization Final dissertation for the Advanced Master of American Studies Academic Year 2016-2017 Promotor: Prof. Ken Kennard Table of Contents Abstract ......................................................................................................... 2 Foreword A Case Study on Trade Policy ....................................................................... 4 Introduction .................................................................................................. 9 Chapter 1 The Press’s Big Antitrust Campaign,1888-1890 ......................................... 14 Chapter 2 The Rise of the Industrial Society: New Ethical-Economic Dilemmas ....... 27 Chapter 3 The “Trust Problem” as a Legal Dilemma ................................................... 39 Chapter 4 Theodore Roosevelt’s Attempt to Reconcile Liberty and Justice ................ 50 Conclusion ................................................................................................... 60 Bibliography ............................................................................................... 63 1 Abstract By the turn of the 19th century, the US had become an industrial power- house and a world power. However, massive economic inequality threat- ened to rip apart American society. The US market had been monopolized by huge companies known as “the Trusts”. While the likes of Rockefeller and Carnegie amassed incredible fortunes, the average American suffered high prices for commodities and consumer goods. Consequently, in 1888 progressive newspapers initiated a vehement antitrust campaign, eventually prompting Congress to approve the Sherman antitrust law. However, the “trust problem” could not be solved at a stroke. By the 1890’s “big business” had become indispensable in the US. Technological development and advancements in transportation and telecommunications had created a fast-paced and interconnected market where family-owned companies could not thrive. In a laissez-fair regime such as in late 19th cen- tury US, the inherent complexity of the industrial production processes and “cut-throat” competition seemed to “naturally” encourage business consoli- dation. Legally, the Sherman Act was difficult to apply in the real world and the Supreme Court struggled to harmonize it “into” the American law. The American law primarily protected individual freedom and private property, which left the federal government little room to regulate the American economy and restrain the trusts’ excessive power. Theodore Roosevelt tried to offer a remedy towards injustice and ine- quality, advocating a more flexible interpretation of the Sherman Act. Alt- 2 hough he went down in history as the “trust buster”, he strived to find a “fair” compromise with the trusts: a compromise between justice and liber- ty, governmental “supervision” of big business and right to free enterprise. He knew that big business was necessary in modern industrial society, and he wished only “bad trusts” to be banned. However, Roosevelt’s project of a moral regeneration of American business ultimately failed. Roosevelt wanted the President to be the final ar- biter of antitrust cases, but this would have created an imbalance in the American “checks and balances system”, which Congress did not accept. 3 Foreword A Case Study on Trade Policy During the second half of 2016 the debate surrounding the Transatlantic Trade and Investment Partnership – or TTIP, the (in)famous treaty which should have created a common Euro-American market – became increasing- ly desperate. Washington urged Brussel to have the treaty signed before the Christmas. Trade liberalization, that is to say the removal of tariff and bu- reaucratic barriers to ensure the free circulation of goods and services, has always been a leitmotif in US foreign policy, from the Open Door Policy in the Far East to the post-Cold War age of neo liberal economics.1 Both Re- publican as well as Democrat administrations have pursued this understand- ing. Reagan declared in 1986, that “The freer the flow of world trade, the stronger the tides of human progress and peace among nations.” Subse- quently, Clinton founded the WTO and duly signed the first modern trade agreement (NAFTA, North American Free Trade Agreement). Moreover, the Obama administration saw TTIP as their strategic goal. However, Don- ald Trump’s unforeseen victory changed the game, as the new President seems keener on pursuing a more protectionist policy. Time will tell. Consequently, the TTIP project now seems to have been shelved. But if the age of comprehensive trade agreements appears to have suddenly shuddered to a halt, it is not only because of this change in the White House. In Europe, treaties such as TTIP have always raised strong opposition, espe- cially from large sectors of the civil society and leftist grass-root move- 1 A. Bacevich, The American Empire, Harvard, Harvard University Press, 2002. 4 ments. Such an instinctive distrust of trade agreements developed into a po- litical fait accompli by October 2016. CETA, the Canadian-European Trade Agreement, was on its way to ratification, when unexpectedly the regional Belgium government of Wallonia voted against acceptance, basically due to the Socialists’ strong opposition. This rejection set off a political chain reac- tion. Belgium’s federal government could not approve the treaty because it needed the consent of all the regional parliaments. But as the implementa- tion of CETA needed the unanimous approval of every EU member state, the European Commission could not ratify the treaty either. As a result, the representatives of a scanty 1% of the European population stopped a treaty that the European Commission had been negotiating for years. What was the origin of this unexpected resistance to trade liberaliza- tion? Much has been written, stressing the TTIP’s inherent risks, and espe- cially those related to the relaxation of the provisions concerning food safe- ty. The “new frontier” of trade policy is indeed focused on the “harmoniza- tion” of those rules determining the criteria a certain product or service for it to be sold into a foreign market (tariffs between the EU and the US are al- ready almost non-existent). This has always been a major obstacle in the creation of a common Euro-American market, because many American and European products are just incompatible. European standards are usually higher than in the US, and the European Commission had to lobby hard to try and convince the European civil society that the agreement would not ac- tually lower them. Hence, “harmonizing” European and American standards would have had a far-reaching impact on society as a whole, not just on the 5 business world. In Europe, such a process could have triggered a “race to the bottom” in terms of product quality and safety in production.2 Apart from single content issues, there was another topic that raised fierce opposition, i.e. the legal “correlative” of the harmonization doctrine: the Investor-State Dispute Settlement proviso, or ISDS. The ISDS would have effectively been an international court where disputes were settled be- tween private corporations and nation states. The ISDS proviso could have given private companies the right to sue sovereign states if nation-states had enforced laws restricting “freedom to trade” after the treaty ratification. In other words, the nation-states’ legislative action aiming to enhance quality standards, hygiene or safety on the workplace etc. could have been legally stopped. Civic protections risked thus being surrendered to corporate inter- ests, sacrificing the “common good” on the altar of “freedom to trade” – or “of private profit”, would critics contend. The “freedom to trade” argument is key to understanding the issues that were in play during the TTIP debate. “Freedom to trade” is usually con- sidered a value in Western societies. Why, then, did it come to be seen as a “bogus” by the TTIP critics? To answer this question, an often underesti- mated factor should be taken into account: the sheer size of the players in- volved in this “treaty game”. Generally, it is the big multinational compa- nies that are expected to gain the most from this trade liberalization. But these companies hold huge bargaining power, because they often operate in 2 F. De Ville - G. Siles-Brügge, The Truth About TTIP, London-Malden MA, Polity Press, 2015, pp. 51-62. 6 a quasi-monopolistic regime.3 Moreover, the global service they offer is simply unrepeatable: no one else has facilities or abilities to develop the same expertise and technology. Who could ever compete against Google or Apple or AT&T or General Electric? Hence, what would have happened if “big business” had been entrusted with the legal power to confront nation states, in addition to the real economic power they already possess? Therefore, the real issue of the debate surrounding the TTIP was a question far more fundamental than trade policy technicalities. It was the clash between two opposite values: the need for justice for the sake of peaceful sociability, and free enterprise (or liberty). Liberty is a key value in Western democracies, but what happens when that sense of freedom is com- promised