In January, the Department of Justice (DOJ) sued Google in a landmark antitrust case the likes of which have not been seen since the breakup of telecommunications conglomerate AT&T in the 1980s. The DOJ seeks to end the company’s stranglehold over the digital advertising market, freeing up an essential revenue source for the tottering journalism industry in the process. In announcing the lawsuit, assistant attorney general Jonathan Kanter quoted a Google employee who referred to the company’s ad exchange as an “authoritarian intermediary.”
This recent action is just the latest example of a veritable renaissance of long-dormant antitrust enforcement in the United States. The Biden administration has prioritized the fight against corporate concentration, and the public now widely—and rightly—considers concentrated corporate power a root cause of inequality and a corrosive agent in our political system. Public support has also spurred antitrust enforcement actions by both the DOJ and the Federal Trade Commission (FTC) against dominant corporations that use their power to control vast swaths of the American economy.
Labor is thought to be a primary beneficiary of the antitrust renewal. Antitrust is now regarded by policymakers as a potent tool that can buttress and enhance the power of workers, securing fair wages, improving working conditions, and ultimately fortifying the gains made in the most favorable American labor market in generations. It might be surprising, therefore, that labor groups have been hesitant to fully embrace this philosophical transition. Some labor organizations, for example, have found themselves on the opposite side of antitrust cases initiated by the federal government.
But there are very good historical reasons for labor organizations’ hesitancy to embrace antitrust. Since its inception in 1890, antitrust has, despite its original intention, been deployed as a legal weapon by the government and corporations against collective labor organizing. This distorted form of “antitrust” enforcement has facilitated strike breaking, corporate consolidation, coercive worker contracts, and misclassification of workers as independent contractors. The history of antitrust shows that, despite real progress, more needs to be done by federal enforcers and Congress to convince workers and organizers that antitrust is a friend of labor.
Congress enacted the antitrust laws in the late nineteenth and early twentieth centuries, at a time when large national corporations were threatening every aspect of the public’s economic, political, and social life, upending the very notion of what it meant to be a worker, consumer, entrepreneur, and citizen. Infamous robber baron John Rockefeller’s Standard Oil, to take one prominent example, leveraged its monopoly to obtain highly preferential railroad freight rates, which then allowed the company to engage in predatory pricing to crush smaller rivals. Relentless public outcry—predominantly from farmers, artisans, and workers—erupted over the nefarious conduct of corporations, which increased prices, suppressed workers’ wages, crushed small businesses, squeezed suppliers, and unduly influenced lawmakers for their exclusive benefit. As a result of the scrutiny, members of Congress equated the conduct of these corporations to robbery, dubbed them “a menace” to democratic institutions, and sought to directly regulate their conduct.
Congress had a broad vision for the Sherman Act when it passed the foundational antitrust law in 1890. Acting upon the demands of the public, Congress structured the act to operate, in the words of the Supreme Court, as a “comprehensive charter of economic liberty.” Sen. John Sherman, one of the lead proponents and namesake of the act, forcefully stated, “If [the American people] will not endure a king as a political power, we should not endure a king over the production, transportation, and sale of any of the necessities of life.” By preventing the use of unfair and monopolistic practices across the economy, Congress specifically meant to ensure widespread and equitable economic opportunity and to protect American democracy from the influence of dominant corporations and other undue aggregations of capital and economic power.
A central aspiration of the Sherman Act was to protect workers. By taking aim at unfair practices and the cornering of markets, Congress intended to buttress labor’s collective organizing efforts and counteract the power of dominant corporations. A review of the law’s extensive legislative history reveals that Congress never intended it to be used against worker actions, such as strikes and unionization drives. Notable members of Congress expressed vehement support for labor during the legislative debates over the Sherman Act. As one author forcefully stated, “There is no evidence available in the records of the debates to show that [Congress]…believed that the [law] would apply to labor.”