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Thurman Arnold, Antitrust, and the New Deal

  • Gene M. Gressley (a1)

The pragmatism and experimentation permitted policy-makers by the American antitrust statutes is well illustrated in this analysis of federal attitudes toward business concentrations in the late 1930's.

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1 Thorelli, Hans B., The Federal Antitrust Policy (Baltimore, 1955), provides the best analysis of the origins of antitrust legislation.

2 Statement to the Press, Homer Cummings, July 6, 1933, Franklin D. Roosevelt Papers, Franklin Delano Roosevelt Library, Hyde Park, New York. Hereafter cited, Roosevelt Papers.

3 Harry M. Stephens, Assistant Attorney General in charge of the Antitrust Division, vigorously protested against the approval of a marketing agreement by the Petroleum Administrator of several Pacific Coast oil companies, led by Standard Oil Company of California. Stephens claimed that the agreement constituted a cartel, the same agreement for which the companies had already been defendants under an antitrust decree of 1930. Harry M. Stephens to Franklin D. Roosevelt, February 24, 1934, Roosevelt Papers.

4 A graphic description of oil marketing in the Rockies during the NRA period is given in the testimony of Pierre LaFleiche and W. H. Ferguson before the TNEC committee. Investigation of the Concentration of Economic Power, Senate Reports, 76 Cong., 2 Sess., No. 35, Pt. 20, pp. 9376–98; 10897–10916.

5 For the impact of the trade-association movement on Roosevelt, note Fusfeld, Daniel R., The Economic Thought of Franklin D. Roosevelt and the Origins of the New Deal (New York, 1956), pp. 5657, 101. For a different interpretation see Freidel, Frank, Franklin D. Roosevelt: The Ordeal (Boston, 1954), pp. 138–59.

6 Western senators recognized the political implications of the monopoly issue, but were divided as to what legislative measures should be taken. Joseph C. O'Mahoney to Burton K. Wheeler, September 9, 1937, Joseph C. O'Mahoney Papers, University of Wyoming Library. Hereafter cited, O'Mahoney Papers.

7 Among the more influential volumes were: Berle, Adolph and Means, Gardner C., The Modern Corporation and Private Property (New York, 1933); Chamberlain, Edward, The Theory of Monopolistic Competition (Cambridge, 1938); Mouton, Harold G., The Formation of Capital (Washington, 1935); Keynes, John Maynard, General Theory of Employment, Interest, and Money (New York, 1936).

8 Joseph C. O'Mahoney to Franklin D. Roosevelt, June 19, 1939, Roosevelt Papers.

9 In a brilliant essay on the New Deal, Frank Freidel has written, “There are some indications, however, that the anti-monopoly program that he launched in the Department of Justice through the urbane Thurman Arnold was intended less to bust trusts than to forestall too drastic legislation in the Congress.” Freidel, Franie, The New Deal in Historical Perspective (Washington, 1959), pp. 1819.

10 Franklin D. Roosevelt to Robert Jackson, October 22, 1937, Roosevelt Papers.

11 The text of Roosevelt's address is in Rosenman, Samuel I. (ed.), The Public Papers and Addresses of Franklin D. Roosevelt: The Continuing Struggle for Liberalism, 1938 (New York, 1941), pp. 305320.

12 Arnold, Thurman W., The Folklore of Capitalism (New Haven, 1937); The Symbols of Government (New Haven, 1935).

13 Considering the historical complexity of the New Deal period, it is readily under standable why historians have yet to investigate intensively Arnold's role. Professor Freidel noted in a recent bibliographical article that, “There is a surprising lack of scholarly monographs on the history of the New Deal agencies.” Frank Freidel, “The New Deal, 1929–1941,” Interpreting and Teaching American History (Washington, 1961), p. 275. Monographic studies are numerous on the broad topic of monopoly.

14 Aisop, Joseph and Kinter, Robert D., “Trust Buster — The Folklore of Thurman Arnold,” Saturday Evening Post, vol. CCXII (August 12, 1939), p. 5.

15 The Nomination of Thurman Arnold to be Assistant Attorney General, March 11, 1938: Hearings before a Subcommittee of the Committee on the Judiciary, U. S. Senate, 75th Congress, 3rd Sess.

16 Shelby Cullom Davis related the reaction of the Republican nominee for President in 1940 to Arnold's most quoted work: “Several years ago Wendell Willkie was introducing Thurman Arnold to a dinner audience of industrialists and financiers in New York City. ‘I have read this man's book. The Folklore of Capitalism, three times,’ he began. The distinguished diners looked surprised. The happy author was ablaze with satisfaction. Then the deluge, ‘But I have yet to understand what Mr. Arnold is driving at.’” The Bottlenecks of Business,” Atlantic Monthly, vol. CLXVI (November, 1940), p. 560.

17 Arnold thought that there were three reasons why antitrust laws were disregarded by the business community: (1) they were ignorant of the laws; (2) the laws were obsolete; (3) in a competitive situation if one turns “buccaneer,” all must fight fire with fire. To have competition without adequate antitrust enforcement was like having a boxing match without a referee, said Arnold. “The Enforcement of the Sherman Act,” Address before the Missouri Bar Association, St. Louis, October 1, 1938, unpublished manuscript in the Arnold Papers, University of Wyoming Library. Hereafter cited, Arnold Papers.

18 Arnold was perpetually perturbed about the lack of communication with businessmen. In a strongly phrased speech before the National Petroleum Association at Atlantic City, he said, “No one should interpret the application of these principles as an attack on business. They are the opposite of an attack. They are defense of business. Our complaints come from business men. We represent almost exclusively the interest of competitive business. America today needs competitive prices as a balance wheel, in a war market.” “The Antitrust Laws as the First Line of Defense Against War Profiteering,” unpublished manuscript, Arnold Papers. Arnold voiced these same sentiments many times, see, The Policy of Government Toward Big Business,” Proceedings of the Academy of Political Science, vol. XVIII (January, 1939), pp. 180–87; Folklore of Capitalism, pp. 104, 207.

19 Frances Perkins, in her remarkable memoir of the New Deal years, described an unforgettable scene between the President of the American Federation of Labor and a group of steel executives whom she had brought together for a conference in her office, “When the heads of the big steel companies – Eugene Grace, Myron Taylor, William Irwin, Emest Weir, Thomas Girdler – and the executives of smaller steel companies came into my office, Green was sitting there. I started the introductions.

Most of them did not permit themselves to be introduced to Mr. Green. They backed away into a corner, like frightened boys. It was the most embarrassing social experience of my life. … I still could not see why anybody would be afraid of William Green, mildest and most polite of men. The steel executives explained to me privately that if it were known that they had sat down in the same room with William Green and talked with him, it would ruin their long-time position against labor organization to their industry.” Perkins, Frances, The Roosevelt I Knew (New York, 1946), pp. 221–22.

20 The rumor that there was a conflict between Frankfurter, Cohen, Corcoran, Jackson, and Arnold on one hand and Berle, Henderson, Frank, and Wallace on the ether band was fallacious, stated Arnold. “In view of the attitudes in the past it is natural enough to suppose such a conflict exists. Actually, however, there is no conflict between these two groups nor is there any reason for such a conflict.” “What is Monopoly?” Address before the Advertising Federation of America, Detroit, June 15, 1938, unpublished manuscript, Arnold Papers.

21 Donald R. Richberg to Franklin D. Roosevelt, April 23, 1938, Roosevelt Papers.

22 United States News, June 6, 1938; Professor Freidel concludes that the antitrust program was more of a negative NRA than it was in direct disagreement. America in the Twentieth Century (New York, 1960), pp. 348–49.

23 Two years after Richberg wrote to Roosevelt, he sent a cordial note to Arnold, which has more than casual interest in the light of his previous comments to the President. “You are certainly a persuasive cussi I have just been reading your address to the American Farm Bureau Federation, and I agree with so much of your purpose and efforts that I wish I could be enthusiastic about the whole program. What holds me back is a feeling that a distinction must be made between cooperation in gauging the public and cooperation which is actually in the public interest. The plain need is for the setting of standards and creation of administrative machinery for their enforcement. In a way you are trying to act as law maker, administrator and prosecutor, which is not only a tough assignment, but one which should not be entrusted to that abstract individual, a ‘public official,’ who, in the concrete, may be as smart and well-meaning as you or as dumb and devious as — (you fill in any name that occurs to you).” Donald Richberg to Thurman Arnold, December 14, 1940, Arnold Papers.

24 On “preachers” Arnold wrote, “The chief difficulty is that there are too many people who believe that economic distress can be cured by preaching and too few who are willing to take practical measures industry by industry.” The Bottlenecks of Business (New York, 1940), p. 282.

25 Thurman Arnold to Charles Seymour, July 4, 1939, Arnold Papers.

26 An excellent summary of the legal evolution of the Sherman Act is in Handler, Milton, Antitrust in Perspective: The Complementary Roles of Rule and Discretion (New York, 1957).

27 “Free Trade Within the Borders of the United States,” Address before the South Carolina Bar Association, Columbia, April 11, 1940, unpublished manuscript, Arnold Papers.

28 In the Annual Report of the Assistant Attorney General it was noted that the work of the Antitrust Division was usually regarded as devoted to three major acts: the Sherman Act, the Clayton Act, and the Federal Trade Commission Act. Less appreciated was the fact that the Division was responsible for the enforcement of thirty-one other acts. Attorney General, Annual Report (Washington, 1940), pp. 54–55.

29 “Fair and Effective Use of our Present Antitrust Procedure,” Address before the Trade and Commerce Bar Association of New York, New York City, April 28, 1938, unpublished manuscript, Arnold Papers.

30 Baldwin, William L., “Changing Concepts of the Large Firm and Antitrust Enforcement” (Ph.D. dissertation, Princeton University, 1958).

31 H. L. Mencken to Thurman Arnold, August 24, 1938, Arnold Papers.

32 An excellent description of the use and abuse of the consent decree is in Bottlenecks of Business, pp. 144–62.

33 “How Far Should Government Control Business,” Address before the Economic Club of New York, February 2, 1939, unpublished manuscript, Arnold Papers.

34 Ibid.

35 In etching the borders of the consent decree Arnold said, “I have not changed the consent decree (I don't like the word ‘consent’ decree; I prefer ‘civil’ decree) I have not changed the civil decree policy of the Department in any other way, I think, except to bring it out in the open so that business men can openly come in with their problems instead of in a subrosa manner as they have been doing since 1890.” “Business and the Antitrust Laws,” Address before the American Trade Association Executives, Washington, D. C, May 1, 1939, unpublished manuscript, Arnold Papers.

36 “Statement of Thurman W. Arnold before the Temporary National Economic Committee,” Washington, D. C, July 7, 1939, p. 20.

37 Joseph C. O'Mahoney to Thurman Arnold, July 9, 1939, O'Mahoney Papers.

38 “What is Monopoly?” Address before the Advertising Federation of America, Detroit, June 15, 1938, unpublished manuscript, Arnold Papers.

39 Alsop, Joseph and Kinter, Robert D., “Trust Buster – The Folklore of Thurman Arnold,” Saturday Evening Post, vol. CCXII (August 12, 1939), p. 7.

40 Regarding the merits of the case by case approach, Arnold wrote the editor of the Saturday Evening Post, “I contend that the case by case method of handling present problems when they arise and not before is the essence of a free economy. Instances where the antitrust laws are inadequate I contend we had better legislate case by case rather than attempt to pass sweeping generalities that only end in confusion.” Actually, Arnold never did achieve a legal staff of the size sufficient to prosecute on a “case by case” approach. However, he did amass a sizeable enough legal force to initiate prototype cases aimed specifically at the distribution level in the economic structure. Thurman W. Arnold to Wesley Stout, August 25, 1939, Arnold Papers.

41 “National Defense and Restraints of Trade,” manuscript draft of an article in New Republic, May 19, 1941, Arnold Papers.

42 The Antitrust Division during Arnold's regime was primarily interested in monopoly in business. However, Arnold was not unmindful of the problems in agriculture. In a letter to Colonel Knox, Arnold stated, “At the outset I wish to emphasize that in my opinion there is no basic inconsistency between this special agricultural legislation and the antitrust laws. Whatever privileges may be conferred upon farmers by this legislation, the Department of Justice stands ready to prevent those privileges from being abused in the special interest of a small and aggressive group. Far from being inconsistent with this legislation the antitrust laws are absolutely necessary if the privileges conferred are not to be pushed far beyond their proper limitation and the real purpose of Congress defeated.” Thurman W. Arnold to Frank Knox, December 19, 1939, Arnold Papers.

43 The pressure for the TNEC proceedings issued from diverse sources. Emmanuel Cellar, Congressman from New York, wrote Roosevelt on March 31, 1938, advocating a revision of antitrust laws. Emmanuel Cellar to Franklin D. Roosevelt, March 31, 1938, Roosevelt Papers. The President of the American Federation of Labor wrote Roosevelt a year to the day before the monopoly message endorsing the Attorney General's recommendations for an overhauling of the legislation on antitrust. William Green to Franklin D. Roosevelt, April 29, 1937, Roosevelt Papers.

44 Leon Henderson to Franklin D. Roosevelt, September 3, 1939, Roosevelt Papers.

45 David Lynch presents an adequate account of the history of the Temporary National Economic Committee in The Concentration of Economic Power (New York, 1946).

46 In response to a request from the President for data to incorporate in his monopoly message, Arnold drew up a memorandum suggesting changes in the antitrust legislation. This memorandum was forwarded by the Attorney General with the accompanying remarks, “In connection with the proposed message to Congress dealing with the Antitrust situation, I enclose you herewith a memorandum drafted by Mr. Arnold. I am sending it to you in its complete form but have taken the liberty of indicating, by pencilled marks on the margin those portions of the document which I would regard as hardly suitable for a message.” Cummings' disagreement was with Arnold's expression rather than substance. Homer Cumrnings to Franklin D. Roosevelt, April 21, 1938, Roosevelt Papers.

47 “The Policies of the Antitrust Division,” Address before the Independent Bankers Association, St. Paul, September 3, 1938, unpublished manuscript, Arnold Papers.

48 Arnold, in an article in the New York Times Magazine, presented his position most cogently. “The Antitrust Division is attempting to outline a consistent policy for the use of the tools which Congress has given it. Whether this policy is liked by business or not, it will at least be understood. This is the first step toward a sensible amendment. The other step toward the amendment is to survey the whole problem of various laws, many of them express inconsistent policies and philosophies. The effect of this total mass of legislation, decision and practices must be studied. That is the function of the Temporary National Economic Committee set up by President Roosevelt to study the entire monopoly problem.” New York Times Magazine, August 21, 1938, p. 15.

49 Thurman Arnold to John T. Flynn, July 6, 1940, Arnold Papers.

50 Francis Biddle to Franklin D. Roosevelt, March 20, 1942, Roosevelt Papers.

51 Published as Democracy and Free Enterprise (Norman, 1942).

52 Arnold, Thurman, “Must 1929 Repeat Itself?Harvard Business Review, vol. XXVI (January, 1948), p. 43.

53 A vivid protest against Arnold's forays was made by Morris Ernst in a letter to the President: “Thurman Arnold is threatening to start a perfectly absurd proceeding against all of the book publishers and retail book dealers. I am involved professionally but my real concern is with the fact that Thurman's fantastic proceedings are being directed against the sole remaining group in the United States which is concerned with the distribution of the printed word and which still have liberal tendencies. I have talked with Bob Jackson about the matter and I would not bother you about it if I did not think it of real significance at this time. I told Bob that I was going to try to see you. I will be in Washington Tuesday and Wednesday of next week. Is there any possibility of getting in for five minutes?” Morris L. Ernst to Franklin D. Roosevelt, September 7, 1940, Roosevelt Papers.

54 “Arnold on Conspiracy,” Business Week, May 21, 1949, p. 76.

55 Thurman Arnold to Benjamin Hibbs, October 1, 1942, Arnold Papers.

56 Arnold never arrived at the place the venerable Progressive partisan, Amos Pinchot, did in 1937. Pinchot in a letter to Harry Elmer Barnes asserted, “I am trying to do what seems to be right. I think the President has enough power for all legitimate purposes already, and I really fear we are in great danger of losing our democratic standing — which has been pretty amateur anyhow during the last few years.”

“I don't feel that everything that is labeled ‘labor’ is necessarily in the interest of labor. Nor that things called ‘Progressive’ or ‘Left’ necessarily make for progress.”

“Also, I do not believe in collectivism. I do believe in the profit system as a means of increasing production and raising the standard of living. I think we ought to have our natural monopolies all owned by the Government, and I don't see any tendency in in the present Administration to fight monopoly or privilege or to go much beyond a very surface kind of reform.” Amos R. E. Pinchot to Harry E. Barnes, April 1, 1937, Harry Elmer Barnes Papers, University of Wyoming Library.

57 Thurman Arnold to William Allen White, September 9, 1943, Arnold Papers. The writer is indebted to Robert O'Neil, Harvard University, for bringing to his attention this sismificant letter.

58 “The War on Monopoly,” Address before the Oregon Bar Association, Gearhart, Oregon, September 29, 1939, unpublished manuscript, Arnold Papers.

59 The newspapers were strangely silent in reporting Arnold's emphasis on the consumer, In the extensive clipping file in the Arnold Papers, a search of thirty notebooks revealed only eight clippings devoted to Arnold's interest in the consumer.

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