Monopolies and the People

by Charles Whiting Baker

Discarding, therefore, direct action by the state to fix prices as inexpedient, for the present, at least, let us see what we can effect by means of "potential" competition, which term we will use to signify that competition which may be established in any monopolized industry if the inducements offered are sufficiently great. It must be remembered that nowadays men of capital and enterprise are always on the look-out for every opportunity to invest money and expend their industry where it will bring the greatest returns. If any monopoly seems to be making large returns, people are generally ready to believe that it is making twice as great profits as it really is; and some one is quite likely to start in as a competitor, if there is a prospect of large profits. Now we wish to do two things. We wish to make it so easy for new competitors to enter the field against a monopoly that its managers will keep their profits down in order not to call in any new competitors. We also wish to so modify the intensity of competition between the monopoly and the new competitor that the latter may have a chance at least of being repaid for its expenditure in entering the field. The simplest and best of the legal provisions which we may enforce to this end is the one already stated of non-discrimination. The monopoly can no longer reduce its price to apply to only the limited field in which the new competitor works, but must reduce its prices everywhere to meet those made by the rival. In the case of monopolies in trade and all monopolies in manufacturing in which the fixed capital required is but small, this is all that would be needed to encourage the establishment of new competitors and discourage the monopoly from grasping after undue profits from the public.

In the case of those manufacturing monopolies in which a large fixed capital must be invested at the start by any new competitor, we have a much more difficult problem. It is true that in this case the monopoly itself has more at stake; and this may induce the starting up of new competitors simply to be bought out by the trust,—a sort of blackmailing operation which is certainly repugnant in its character. It might be possible to provide that rates charged by the monopoly must be so stable that a competitor would have a chance to establish itself before the monopoly could bring its own rates down. It might be possible to force the monopoly to keep all its factories in operation, and thus oblige it to keep down its price in order to dispose of its products; but there are evident practical difficulties in the way of enforcing such laws. It seems a great pity that just now, when to find some employment of prison convicts in some manner that will not "compete with free labor," and thus displease the labor interests, seems an impossibility, we cannot set the convicts at work to compete with the trusts and bring down their profits to a reasonable point. Surely the labor party would find no fault with this use of convict competition.

There is one step, however, which we can take, and whose effect would certainly be very great; in its desirability, apart from questions of monopoly, all honest men are practically united. We can reform our laws regarding corporate management. It is a mild arraignment compared to what is deserved, to say that our present laws regarding the formation and management of corporations, taking the country as a whole, are a shame to the people and a disgrace to the men who made them. They seem designed to place a premium on fraud and knavery, and to assist the professional projector and stock manipulator in reaping gains from innocent—generally very innocent—stockholders. Now a real reform in our corporation laws would greatly simplify our work in controlling monopolies. Let us have no more stock-watering of any sort at any time in a corporation's life. Let us have no more "income bonds" which yield no income, and "preferred stock" in which another is preferred after all. Two classes of securities are enough for an honest corporation, and the public interest requires the charter of no other class of companies. Let us have done, too, with the iniquitous custom of one corporation holding another's stock or bonds. With a few such simple reforms as these effected, the holders of stock in our corporations would have some idea where they stand and what their securities represent, and would take some interest in the control of their property.

With these reforms, in the case of every corporation making a contract to restrict competition, it would be required that the company make public annually a full statement of its receipts, expenditures, and profits. Every monopoly would stand before the public then in its true position, and every one would know if it were making 50 per cent. per annum on the actual capital invested, or only 5 per cent. With these facts made public, if any monopoly ventured to raise its price till it reaped unusual profits, some of the heaviest consumers of the monopolized product would be very apt to start a factory of their own in opposition. It is to be remembered that under the law of non-discrimination the monopolies would be prevented from currying favor with the large consumers by giving them specially favorable prices. It is now common to do this, as it removes the danger of combination among these important customers to compete with the monopoly.

To sum up, the chief features of the plan proposed for the control of monopolies in manufacture and trade are as follows: Make contracts to restrict competition, legal and binding, instead of illegal and void as now. But; provide that every such contract shall be filed for public inspection; that prices charged by the combination shall be public, stable, and absolutely unvarying to all; that the affairs of the combination shall be managed according to a consistent and stringent corporation law; and that an annual report of the operations of the combination be made to a public commission.

Contrast this with the existing law upon this important subject. In Judge Barrett's decision in the Sugar Trust case he said:

"The development of judicial thought, in regard to contracts in restraint of trade, has been especially marked. The ancient doctrine upon that head has been weakened and modified to such a degree that but little if any of it is left. Indeed, excessive competition may sometimes result in actual injury to the public; and anti-competitive contracts, to avert personal ruin, may be perfectly reasonable. It is only when such contracts are publicly oppressive that they become unreasonable, and are condemned as against public policy."

This is probably the best statement of the present status of the common law upon this subject now extant. But what a path to endless litigation does it open! Who shall draw the line where a contract to restrain competition ceases to be beneficial and lawful, and becomes an injury to the public welfare? Must this be left to judge and jury? If so, the responsibilities of our already overburdened Courts are vastly increased.

In contrast with such a policy as this, the plan before presented certainly promises definiteness in the place of uncertainty; and treats all contracts in restraint of competition with impartiality. It is believed that the effect of its enforcement would be a great reduction in the tax now levied on us by monopolies.

There is yet one way, however, in which all these monopolies that we have found it so difficult to devise a plan to deal with—the manufacturers' trusts—may be quickly and certainly reduced. Our heavy tariff on imported goods, by protecting manufacturers from foreign competition, and thus reducing the number of possible competitors, has undeniably been a chief reason why trusts have appeared and grown wealthy in this country before any other. The author has purposely refrained, as far as possible, from reference to the relation of the tariff to monopolies; for the question has been so hotly fought over, and the real facts concerning it have been so garbled and distorted, that people are not yet ready to consider it in an unprejudiced way. This much, however, no one can gainsay. We hold in our hands the means to at any time reduce the prices and profits of practically all our monopolies in manufacturing to a reasonable basis, by simply cutting down the duty on the products of foreign manufactories. Now, if after our plan just described is in force, the managers of any monopoly choose to be so reckless as to raise its prices to a point where its published reports will show it to be making enormous profits, thus tempting new competitors to enter the field and breeding public hostility, all honest protectionists and free-traders will be quite apt to unite in a demand that the "protection" under which this monopoly is permitted to tax the public be taken away.