DEFECTS AND POSSIBLE AMENDMENTS. These comments with reference to defects in and possible amendments to the law are made before the organization or appointment of the Commission. 1. Commission Has No Authority to Make Report or to Enter Order When Favorable to Person or Corporation Complained Against. No provision is contained in the Trade Commission or Clayton law requiring the Trade Commission to make a report or finding of facts or to enter any order in the event its conclusions are favorable to the business against which a proceeding has been instituted. It would seem that such report, finding and order might be authorized or even directed to be made by the Commission and be given the same force and effect as an unfavorable report, finding or order. 2. Commission Might Be Empowered to Recommend Rule of Conduct for the Future. The Trade Commission is given no power to establish or enforce any rule of conduct for the future. Section 6 (e) makes it the duty of the Commission "upon the application of the Attorney General to investigate and make recommendations for the readjustment of the business of any corporation alleged to be violating the antitrust Acts in order that the corporation may thereafter maintain its organization, management, and conduct of business in accordance with law." This provision in a limited way looks toward establishing guides for the future conduct of busiThe Commission, however, can do nothing more than "make recommendations," and such recommendations apply only to "readjustment of the ness. business of any corporation alleged to be violating the antitrust Acts." Putting constitutional questions aside and assuming power in Congress to legislate further, it would seem to be helpful in the solution of many difficult problems which are constantly arising in business if the Commission were given at least enough power to enable it to put the stamp of approval upon plans for the conduct of any proposed new business, or combinations or associations of old businesses intending to consolidate or co-operate, if full and complete information concerning the same and the proposed conduct thereof be first given./The power of the Commission in any such case should be limited to the recommendation or approval of such plans for future action as might be agreed upon by the Commission and all parties concerned after full hearing. Such power to make recommendations for or give approval to future conduct, however, should be merely permissive and should have the effect of authorizing the plans to be carried out only so long as the parties desired, or the Commission believed the law was not being violated. All acts done in good faith under such recommendations or approval should be protected against liability under the laws. Wherein would lie the evil in an immunity which would be available as a defense only if the recommendations had been made or approval given after full hearing open to anyone concerned and the plans of operation thereunder had been carried out in the utmost good faith? 3. Commission Might Be Authorized to Permit Combinations for Furtherance of Foreign Trade. The problems now existing in connection with the foreign trade of the United States and empha sized by the European war seem to make it desirable that power be vested in the Trade Commission to authorize associations or combinations of merchants, manufacturers or traders of the United States properly to eliminate competition among the members thereof to the end that they will be thus able to meet the competition of similar bodies now lawfully existing in foreign countries. 4. Federal Reserve Board Lacks Power to Enforce Provisions of Clayton Law, Resulting in Discrimination Against All Member Banks. It is the duty of the Federal Reserve Board to enforce the provisions of the Clayton law wherein applicable to banks. It is directed to enforce the provisions thereof against stock ownership and interlocking, but neither the Trade Commission law, the Clayton law nor the Federal Reserve law makes any provision for the Reserve Board to hold hearings, subpoena witnesses or require the production of documentary evidence. With these limitations on its power it undoubtedly will be difficult, if not impossible, in many cases for the Board to perform its duty in the premises. As the Reserve Board has power to obtain information from banks which are members of the Federal Reserve System,16 but has no jurisdiction over State banks which are not member banks, or over private bankers, the absence of the power suggested is a discrimination in favor of State banks and private bankers who are not members of the Federal Reserve System, and may often result in the existence of known violations of the law, with no power to prevent them. 16. The Federal Reserve Act, section 9. Rush C. Butler, FEDERAL TRADE COMMISSION LAW. [PUBLIC-No. 203-63D CONGRESS.] An Act To create a Federal Trade Commission, to define its powers and duties, and for other purposes. FEDERAL TRADE COMMISSION CREATED. 1. SEC. 1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That a commission is hereby created and established, to be known as the Federal Trade Commission (hereinafter referred to as the commission), which shall be composed of five commissioners, who shall be appointed by the President, by and with the advice and consent of the Senate. Not more than three of the commissioners shall be members of the same political party. The first commissioners appointed shall continue in office for terms of three, four, five, six, and seven years, respectively, from the date of the taking effect of this Act, the term of each to be designated by the President, but their successors shall be appointed for terms of seven years, except that any person chosen to fill a vacancy shall be appointed only for the unexpired term of the commissioner whom he shall succeed. The commission shall choose a chairman from its own membership. No commissioner shall engage in any other business, vocation, or employment. Any commissioner may be removed by the President for inefficiency, neglect of duty, or malfeasance in office. A vacancy in the commission shall not impair the right of the remaining commissioners to exercise all the powers of the commission. The commission shall have an official seal, which shall be judicially noticed. SALARIES-SECRETARY AND EMPLOYEES. 2. SEC. 2. That each commissioner shall receive a salary of $10,000 a year, payable in the same manner as the salaries of the judges of the courts of the United States. The commission shall appoint a secretary, who shall receive a salary of $5,000 a year, payable in like manner, and it shall have authority to employ and fix the compensation of such attorneys, special experts, examiners, clerks, and other employees as it may from time to time find necessary for the proper performance of its duties and as may be from time to time appropriated for by Congress. APPOINTMENTS UNDER CIVIL SERVICE AND EXCEPTIONS. 3. With the exception of the secretary, a clerk to each commissioner, the attorneys, and such special experts and examiners as the commission may from time to time find necessary for the conduct of its work, all employees of the commission shall be a part of the classified civil service, and shall enter the service under such rules and regulations as may be prescribed by the commission and by the Civil Service Commission. All of the expenses of the commission, including all necessary expenses for transportation incurred by the commissioners or by their employees under their orders, in making any investigation, or upon official business in any other places than in the city of Washington, shall be allowed and paid on the presentation of itemized vouchers therefor approved by the commission. Until otherwise provided by law, the commission may rent suitable offices for its use. The Auditor for the State and Other Departments shall receive and examine all accounts of expenditures of the commission. COMMISSION SUCCEEDS BUREAU OF CORPORATIONS. 4. SEC. 3. That upon the organization of the commission and election of its chairman, the Bureau of Corporations and the offices of Commissioner and Deputy Commissioner of Corporations shall cease to exist; and all pending investigations and proceedings of the Bureau of Corporations shall be continued by the commission. |