By Cohen, Jerry S.; Cuneo, Jonathan W.
The Nation , Vol. 245
Restraint of Trade--Laws, Regulations and Rules
Antitrust Law--Interpretation and Construction
Corporations--Laws, Regulations and Rules
Meese, Edwin--Social policy
Rule, Charles F.--Appointments, resignations and dismissals
United States. Department of Justice. Antitrust Division--Officials and employees
Pulling the Plug On Antitrust Law
The nomination of Robert Bork to be a Justice of the Supreme Court is the latest step by the Administration to reinforce its policy of not enforcing the antitrust laws. Bork is, of course, the author of The Antitrust Paradox, a book that presaged Attorney General Edwin Meese 3d's distaste for antitrust actions. Another recent Administration move was the appointment of Charles Rule to be Assistant Attorney General of the Justice Department's antitrust division.
Bork and Rule are graduates of the University of Chicago and members of the "Chicago school,' a small band of economic zealots who argue that promoting corporate efficiency should be the sole aim of antitrust policy. The Chicago school sees antitrust law not as rules governing and promoting a fair and competitive economy but as an evil form of Federal regulation. Accordingly, the school's advocates see enforcement of the antitrust laws not as a task for lawyers but primarily as an intellectual exercise for its own brand of economist.
The Chicago school also provides the economic rationale for the existence and behavior of the same powerful corporations whose power the Sherman Antitrust Act and other measures were designed to check. Although there is no reason to believe that Meese even vaguely understands the complicated Chicago school theories of Bork and Rule, he instinctively believes that big business should not be the subject of government concern, even if Federal statutes hold to the contrary. Bork's contempt for antitrust is well known; Rule's views, less so.
As chief of the antitrust division, Rule is the appointee to whom the President has delegated his constitutional authority to "take care that the [antitrust] laws be faithfully executed.' The constitutional responsibilities of the job are those of an enforcer, a guardian, a caretaker.
Earlier this year, Rule appeared before the Senate Judiciary Committee (which later approved his appointment) in his role as Acting Assistant Attorney General and asked Congress to cut his staff by 15 percent next fiscal year. The Senators thus faced what has become a familiar dilemma in the Reagan years: Should it approve a nominee to a position of high public trust who will act less like a caretaker than an undertaker? In Rule, Meese chose an undertaker.
It is supreme irony that the Meese Justice Department would adopt anything other than a tough antitrust policy. When it comes to crime--and many antitrust violations are felonies--Meese is a law-and-order man. When it comes to legal interpretation, Meese believes in looking to the original intent of the law. Also, Republican philosophy is to protect free and open markets, one of the prime purposes of the antitrust laws.
Yet, under Meese, the antitrust division has failed to enforce entire portions of the laws against monopoly and restraint of trade and has demonstrated unprecedented leniency to corporate giants. More important for the long term, the Justice Department has worked to weaken the laws themselves, thereby attempting to insure that the lax policy will continue under Meese's successors. The appointment of Rule is notice to Congress that Meese will continue his attitude of contempt for law enforcement where the antitrust laws are involved.
Our nation has a long antimonopoly tradition. The American colonists were extremely resentful of British trading monopolies back home and the mercantilist policies that promoted them. The Boston Tea Party was, in part, an antimonopoly demonstration. Around that time, Adam Smith wrote The Wealth of Nations, the classic attack on mercantilism, which exposed how merchant interests could subvert state power. Thomas Jefferson, the most prominent proponent of dispersion of political power, protested the Constitution's failure to prohibit monopolies.
Congress passed the Sherman Antitrust Act--the basic law prohibiting monopolies and cartels--in 1890 as a response to the rapid growth of trusts after the industrial revolution. …