Lowell B. Mason is a former member of the Federal Trade Commission, a lawyer, a vigorous defender of individual liberties, and a colorful author and speaker. He has served in both the legislature and executive branches and at national, state, and local levels of government. He is author of the new book, The Bull on the Bench.
© 1968, Nation’s Business—the Chamber of Commerce of the United States. Reprinted by permission from the February issue.
Millions of law-abiding businessmen are now subject to treatment the U. S. Supreme Court has ruled unlawful when applied to common criminals.
The courts, cheered on by liberals everywhere, have moved dramatically and forcefully in recent years to safeguard individual rights. But the plight of the businessman in his relations with Federal administrative agencies, which regulate most of interstate commerce in America, has been overlooked.
Supreme Court decisions hold that police and prosecutors are not allowed to put defendants to inquisition. The accused also must be advised that they need not confess and that counsel will be provided for them if they want it.
Many other provisions long have been part and parcel of what is generally referred to as due process — such as:
· All men are presumed innocent until proven guilty by a greater weight of the evidence.
· The officer who prosecutes a case cannot be the same man who sits in judgment nor can he impose the punishment, if any.
There is no doubt that the recent Supreme Court interpretations of our Bill of Rights incline many thoughtful citizens to the growing opinion that the rights of law-abiding citizens have been subordinated to those of criminals.
All of this criticism could be avoided if the Supreme Court treated burglars the same way it treats the American businessman. Most of the safeguards to overly speedy justice are avoided when dealing with businessmen charged with violating Federal laws regulating interstate commerce.
Why should burglars and other criminals, who pay no taxes on their estimated $40 billion annual take, get better treatment than businessmen who are the government’s main source of income?
Why should the many businessmen who come under the jurisdiction of administrative law accept the special strictures this law applies exclusively to them?
Certainly they do, with considerable docility.
A successful businessman follows established rules of conduct. He pays his bills, honors his contracts, and obeys the law whether he likes its provisions or not, else he soon finds himself outside the pale. He accepts the fact that for over a half century the established role of administrative law allows the score of Federal regulatory agencies which prosecute him to judge him also.
This may disturb him at first, but he is somewhat reassured when he goes to trial to hear the prosecutors refer to themselves as a quasi-judicial court. It seems to him he is in front of a court. It has all the appearances of one.
The commissioners of Federal regulatory agencies sit on a high bench just like judges. Everybody arises when they enter the room. Witnesses are sworn; decorum and dignity are the order of the day. But the businessman will find out there is a great difference between the quasi-judicial treatment he gets and the real judicial treatment accorded a burglar.
Burglars Get Better Break
To illustrate, take two cases: One involving a businessman and one a burglar. Assume both are guilty or assume both are not guilty. We are not concerned with what they did, but with how and why two widely divergent methods are used in dealing with these two suspects. There is a tender set of laws for burglars and a tough set for businessmen.
In other words, the government practices what it does not preach. It practices discrimination. And in this case, it is against the majority — not the minority. We hear much these days about de facto discrimination — favoritism not recognized by law, but nevertheless practiced. The discrimination against businessmen is not only de facto, it is also de jure. It is recognized and enforced by law.
For businessmen there is no freedom from inquisition, a presumption of innocence until they are proved guilty by a preponderance of evidence, a trial before an impartial judge and a jury.
If a burglar got the same treatment the businessman gets, his house could be searched regularly. The function of prosecutor, judge, and jury could be consolidated in the hands of one agency.
The commissioners of some Federal agencies, who devote their efforts to rooting out bad commercial practices, believe they have become so expert that when a businessman comes to trial before them, it is not necessary to waste time proving his guilt by a greater weight of the evidence. The commissioners, having originally prepared the charges against him, apparently instinctively sense whether or not the man is guilty. All that the administrative law requires is for them to put some evidence in the record or, if there is no evidence, at least some inferences upon which guilt may rest, and the Supreme Court will not interfere with their judgment.
FTC in Action
Let me give an actual case which was tried when I sat on the Federal Trade Commission.
There was a businessman whom the commissioners suspected was injuring some of his customers by giving quantity discounts to others. So a complaint was filed against him. At his trial, testimony was sought from those who were injured. FTC personnel traveled all over the United States and couldn’t get a single customer to say he was injured.
If the agency had been ordinary prosecutors and had to try that case before a judge and jury, it would have lost. But being quasi-judicial, FTC just inferred the customers were injured, and found the man guilty right away. He was mad, of course, and appealed our decision. But when a quasi-judicial commission says a man is hurt — he is hurt.
This conclusion the Supreme Court heartily approved on the grounds that either all the witnesses were too dumb to know they were hurt or were not smart enough to object—and besides, why should the court question the judgment of a bunch of experts like Federal Trade Commissioners? I’ve always been proud of my decision in the case. I voted against the order.
FTC expertise has reached such occult dimensions that even if the defendant had done no wrong at the time we sued him, if we predicted his acts might develop evils later on, we issued an order against him anyway.
Just think of all the robberies and murders that could be prevented if a combination policeman prosecutor-judge were endowed by statute with the same wisdom and authority. Then they could lock up everybody who had “the tendency and capacity” to do evil.
But these plenary powers apply only against businessmen. If a witness is not a businessman but a communist, and his organization is on trial before another quasi-judicial court (the Subversive Activities Control Board), the statute strictly forbids a finding of guilt unless there is a preponderance of evidence to support it.
Legal Counsel Barred
One Supreme Court decision points out that, under the authority of an Ohio statute, a businessman being questioned regarding incidents damaging to the economy in a general administrative inquiry is not even allowed to have his lawyer present.
If this businessman had been accused of a criminal act, an arresting officer would have to caution: “You don’t have to say anything or answer any of my questions if you don’t want to. We’ll let you have a phone so you can call your lawyer or a friend or relative. If you can’t afford a lawyer, one will be furnished to you if you want one.”
And what about inquisition in America?
Federal agencies that regulate businessmen have power to require them to file answers to specific questions, as to their work, business, conduct, and practices.
They have far more power than the courts possess. These Federal policemen can not only investigate, but even snoop and harass.
Here’s what the Supreme Court said about them in the Morton Salt Co. case:
“It [the Federal agency] has a power of inquisition, if one chooses to call it that, which is not derived from the judicial function….
Even if one were to regard the request for information in this case as caused by nothing more than official curiosity, nevertheless, law enforcing agencies have a legitimate right to satisfy themselves that corporate behavior is consistent with the law and the public interest.
“Official curiosity” can cover a lot of territory.
And if conducted by a state official or anyone he designates to do the job, an investigation may be in secret. All friends, relatives, and defendant’s attorneys are strictly excluded, for as the five to four majority of the Supreme Court said: Advisers to a witness might encumber the “proceeding so as to make it unworkable or unwieldy,” and “the presence of lawyers is deemed not conductive to the economical and thorough ascertainment of the facts.”
As students of history remember, there was an alarming rise in the French crime rate before the French Revolution, just as there is here in America today. M. Seguier, a chief prosecutor under Louis XVI, demanded many of the same shortcuts to speedy convictions that are being urged today. He got them. Later on the same sort of instant justice was gleefully applied to send Louis and his cohorts to the guillotine.
Will Court Relent?
But does history have to repeat itself?
While, I predict, we’ll never treat burglars as badly as we do businessmen, what are the chances of government treating businessmen as politely as it does burglars?
I’m not too optimistic about this, though recent decisions indicate the Supreme Court is getting fed up with wearing two faces — one for burglars — one for businessmen.
Here’s what these decisions were all about.
Everybody knows a burglar’s home has always been his castle. If government agents wanted to break in and look under his bed, they first got a warrant to do so. This was because the Constitution says anyone suspected of burglary can’t be forced to convict himself.
But ordinary citizens?
They weren’t suspected of anything, so it was all right for agents to wander through their bedrooms, parlors, and baths without messing around with warrants. All the agent had to do was bang on the door and yell, “Hey, you! Lemme in!”
Now the Supreme Court says, “No more discrimination. When it comes to a man’s home — treat him just as nice as you do burglars.”
But one swallow doesn’t make a summer.
What about the other judicial discriminations against the business community? What about inquisition? What about quasi-judicial officials prosecuting their own cases, then sitting in judgment on their own prosecutions?
Sixty years of legal custom have sanctified it.
For 11 of those years, as a Federal Trade Commissioner, my colleagues and I investigated thousands of charges against businessmen. When we determined there was “reason to believe” the laws of the marketplace were violated, we filed complaints against them.
Then hastily donning our judge’s robes behind the bench (figuratively speaking) we solemnly marched into our courtroom. Seating ourselves on our high bench and looking benignly down on the hapless culprits, we would say, “Now tell us what this case is all about.”
Some bureaucrats (who would have been glad to see me off the Commission) thought I should resign in protest against this direct repudiation of the American concept of separation of powers. Ridiculous — I had no truck with officials who resigned in protest as long as there was any chance to make known their beliefs.
Thanks to President Truman, I had this chance. My dissents, during these 11 years, brought more fruit to freedom than if I had sulked outside the tent.
There’s still a long road to travel. But while there’s life, there’s hope.
Who knows?
Maybe some day government will treat businessmen with the same consideration it gives burglars.
