The Clayton Antitrust Act of 1914 (, codified at , ), is a part of United States antitrust law with the goal of adding further substance to the U.S. antitrust law regime; the Clayton Act seeks to prevent anticompetitive practices in their incipiency. That regime started with the Sherman Antitrust Act of 1890, the first Federal law outlawing practices that were harmful to consumers (monopolies, cartels, and trusts). The Clayton Act specified particular prohibited conduct, the three-level enforcement scheme, the exemptions, and the remedial measures.
Like the Sherman Act, much of the substance of the Clayton Act has been developed and animated by the U.S. courts, particularly the Supreme Court.
Background
Since the Sherman Antitrust Act of 1890, courts in the United States had interpreted the law on cartels as applying against trade unions. This had created a problem for workers, who needed to organize to balance the equal bargaining power against their employers. The Sherman Act had also triggered the largest wave of mergers in US history, as businesses realized that instead of creating a cartel they could simply fuse into a single corporation, and have all the benefits of market power that a cartel could bring. At the end of the Taft administration, and the start of the Woodrow Wilson administration, a Commission on Industrial Relations was established. During its proceedings, and in anticipation of its first report on October 23, 1914, legislation was introduced by Alabama Democrat Henry De Lamar Clayton Jr. in the U.S. House of Representatives. The Clayton Act passed by a vote of 277 to 54 on June 5, 1914. Though the Senate passed its own version on September 2, 1914, by a vote of 46–16, the final version of the law (written after deliberation between Senate and the House), did not pass the Senate until October 6 and the House until October 8 of 1914.
Contents
The Clayton Act made both substantive and procedural modifications to federal antitrust law. Substantively, the act seeks to capture anticompetitive practices in their incipiency by prohibiting particular types of conduct, not deemed in the best interest of a competitive market. There are 4 sections of the bill that proposed substantive changes in the antitrust laws by way of supplementing the Sherman Antitrust Act of 1890. In those sections, the Act thoroughly discusses the following four principles of economic trade and business:
price discrimination between different purchasers if such a discrimination substantially lessens competition or tends to create a monopoly in any line of commerce (Act Section 2, codified at ); sales on the condition that (A) the buyer or lessee not deal with the competitors of the seller or lessor ("exclusive dealings") or (B) the buyer also purchase another different product ("tying") but only when these acts substantially lessen competition (Act Section 3, codified at ); mergers and acquisitions where the effect may substantially lessen competition (Act Section 7, codified at ) or where the voting securities and assets threshold is met (Act Section 7a, codified at ); any person from being a director of two or more competing corporations, if those corporations would violate the antitrust criteria by merging (Act Section 8; codified 1200 at ).
Comparisons to other acts
Unilateral price discrimination is clearly outside the reach of Section 1 of the Sherman Act, which only extended to "concerted activities" (agreements). Exclusive dealing, tying, and mergers are all agreements, and theoretically, within the reach of Section 1 of the Sherman Act. Likewise, mergers that create monopolies would be actionable under Sherman Act Section 2.
Section 7 of the Clayton Act allows greater regulation of mergers than just Sherman Act Section 2, since it does not require a merger-to-monopoly before there is a violation. It allows the Federal Trade Commission and Department of Justice to regulate all mergers, and gives the government discretion whether to give approval to a merger or not, which it still commonly does today. The government often employs the Herfindahl-Hirschman Index (HHI) test for market concentration to determine whether the merger is presumptively anticompetitive; if the HHI level for a particular merger exceeds a certain level, the government will investigate further to determine its probable competitive impact.