Joint Legislative Activities and Codes of Ethics

• Published date: 01 December 1974
• Date: 01 December 1974
• DOI: 10.1177/0003603X7401900402
• Subject Matter: Article

JOINT

LEGISLATIVE

ACTIVITIES

AND

CODES

O'F

ETHICS

by

JOHN

HENRY

BREBBIA·

The subject

matter

of my address,

Joint

Legislative :Activ-

ities and Codes of Ethics, is divided into two parts. The first

deals with the permissible limits of lobbying activities en-

gaged in by associations within the framework of the anti-

trust

laws. The second deals with codes of ethics

of

associa-

tions as they apply to industry self-regulation.

JOINT

LEGISLATIVE

ACTIVITIES

The principal attack under the

antitrust

laws upon various

lobbying activities

has

come under Sections 1and 2 of the

Sherman Act.

In

considering the application of these provi-

sions to lobbying activities, the interpretation given the stat-

ute by the Supreme Court is of prime importance.

In

a decision rendered in 1910 involving Standard OiP

the Court held

that

the Sherman Act forbids only those re-

straints

or attempts

at

monopolization

that

are undertaken

by the acts of "individuals or combinations of individuals

or

corporations." 2

In

subsequent decisions, the Court expanded

on this holding,

stating

that

where monopolization or re-

straints of

trade

were the result of valid governmental action,

as opposed to private action, no violation of the Act was

established,"

In

one such case, Parker v, Brown,4' the issue

•Alston, Miller &Gaines, Washington, D. C.

1Standard Oil 00. v. United States, 221 U.S. 1 (1910).

2Id. at 57.

aUnited States v. Rock

RoyaZ

Co-op,

Inc., 307 U.S. 533 (1939);

Parker v. Brown, 317 U.S. 341 (1943).

.. 317 U.S. 341 (1943).

681

682

THE

ANTITRUST

BULLETIN

under

examination was the operation of the

State

of Califor-

nia's agricultural marketing system. The object of the system

was to eliminate ruinous competition by placing

certain

per-

centages of every grower's crop

under

the control of a grow-

ers'

and

packers' committee which could sell or withhold the

produce as

market

conditions indicated. The

Court

said

that

if

this system

had

been the product of

private

agreement

it

would have been in violation

of

the Sherman Act. However,

since the system was established

under

state

legislation

and

administered by a group appointed by the Governor, the

Court

found

it

to be valid

state

action

not

subject to the Sherman

Act.s

These cases

laid

the foundation

for

the Supreme Court's

landmark decision in the N oerr case," which

set

forth

the first

part

of

what

is now known as the Noerr-Pennington doctrine.

The

"lobbying" activity complained of in N oerr consisted of a

publicity campaign mounted by the railroads

against

the

trucking

industry

designed to foster the adoption

and

reten-

tion of laws detrimental to the trucking industry.

The

rail-

roads employed both direct

and

third

party

propaganda

activities in

their

efforts

against

the trucking industry.

In

an action

for

damages and

for

an injunction

against

further

activity by the railroads, the truckers charged

that

this ac-

tivity constituted aconspiracy to

restrain

trade

in

and

monopolize the long distance

freight

business in violation of

the

Sherman Act.

In

aunanimous decision, the

Court

held

that

the Sherman Act did

not

apply to the activities of the

railroads

insofar

as those activities comprised the mere

solicitation

of

governmental action

with

respect

to the pas-

sage and enforcement of laws, even though the railroad's sole

purpose was to destroy the truckers as competitors.

As

its

basic consideration, the

Court

found

that

"no viola-

tion of the [Sherman] Act can be predicted upon mere

at-

5317 U.S. at 350-51.

6Eastern Railroad President's Conference v. Noerr Motor

Freight, Inc., 365 U.S. 127 (1961).