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Ashcroft and Consumers
April 30, 2002
By Margie Burns

"There is nothing in the bill to prevent a refusal by anybody to buy anything." - Senator John Sherman, discussing his Antitrust Act,1890.

As President Bush's Attorney General, John Ashcroft may become something of a student of American legal history. However, his past job experience as an attorney general indicates disregard of one of the clearer lessons from the history books: antitrust prosecutions should not be used to stifle political speech.

While serving as Missouri's Attorney General, Ashcroft filed a lawsuit in federal court in 1978 alleging that a National Organization for Women-supported consumer boycott of Missouri as a convention location was a "combination and conspiracy in restraint of trade" violating antitrust laws. The background to the case was the proposed Equal Rights Amendment to the Constitution, which had been passed by both houses of Congress and submitted to the states for ratification on March 23, 1972.

At the time of Ashcroft's lawsuit, the ERA had been ratified by 35 states, with three more needed for ratification. In Missouri, ERA ratification legislation had been introduced twice in the state legislature, passing the state's House once but defeated in the Senate both times. In 1975 the National Federation of Business and Professional Women retained a consultancy to advise on strategy. Under advice, the BPW passed a resolution to boycott non-ratifying states as convention locations; similar resolutions followed by other national organizations including NOW. When the boycotts got underway in Missouri, some 200 organizations had joined in the movement by the time Ashcroft's lawsuit was filed (and another 200 after the filing).

Ashcroft pursued his case, if you call it that, with a perseverance worthy of a better cause. He lost in the U. S. court for the Western District of Missouri. Swimming upstream against nineteen detailed pages on background and law by District Judge Elmo B. Hunter, he then appealed to the Eighth Circuit (where an amicus attorney for the other side was Ruth Bader Ginsburg). Losing in the Circuit Court -- which seems to have joined zestily in a historical discussion -- he tried twice to get a hearing from the Supreme Court but was denied.

As Judge Hunter's discussion makes clear, NOW was neither the first initiator nor the sole organizer of boycotts supporting the Equal Rights Amendment. When the Business and Professional Women passed its boycott resolution, it was followed by the League of Women Voters; the National Association of Women Deans, Administrators and Counselors; the National Education Association; the American Association of University Women; and the American Political Science Association. More boycott support followed in the late 70s including that of NOW, the American Nurses Association, the National Council of Senior Citizens and the American Home Economics Association.

Ashcroft sued NOW alone, however, and the District Court noted the selective prosecution. Judge Hunter wrote that "The national NOW organization did not become involved with this movement until 1977" and that ERA boycotts had been coordinated by at least 15 national organizations along with state and local organizations and individuals. It looks as though Ashcroft singled out NOW for reasons not entirely related to the merits of antitrust law.

This was not just opposition to "abortion"; it was a broadside against a raft of prominent women's groups. However, it also targeted NOW specifically, with a targeted singling-out that was probably tactical but fatally undermined the combine/conspire allegation. Thus Ashcroft reinforced NOW's argument, accepted by the district and circuit courts, that the boycott was political, and also threw the case onto First Amendment territory, where letters and phone calls urging that conventions be held only in ERA-ratifying states become protected expression.

An odd conjunction: on February 21, 1979, the St. Louis Post-Dispatch quoted unnamed "state officials" who called the boycott "taking states as economic hostages, with ratification of the Equal Rights Amendment as the ransom." The first takeover of the US embassy in Iran had just occurred on Valentine's Day, 1979, with 70 employees seized and held for over two hours (the previous year, when filing the lawsuit, Ashcroft had characterized the boycott as "economic tyranny)."

Ashcroft might have spared himself and his state the defeat, had he focused on the unsavory historical precedents. There had already been a lineup of attempts to turn antitrust legislation against popular movements rather than against corporations. Early labor union organizing was repeatedly attacked under antitrust law, ultimately unsuccessfully. Segregationists of the fifties and sixties attempted to sue the NAACP in the same guise over civil rights boycotts of local businesses; in NAACP v. Alabama, the court held repeatedly that freedoms of speech and association could not be restricted by sweeping injunctions from the state.

In fact, the Missouri case ended up contributing some legal precedent against such attempts: Missouri v. the National Organization for Women has been cited in opinions protecting other boycotts, notably in Henry v. First National Bank (1979) and the labor boycott in Adolph Coors Co. v. Wallace (1984). Never say Ashcroft hasn't done anything for people's rights, even without bra-burning vixens like Ginsburg around.

Cheerfully the appeals court picks up on this history, enumerating "examples of political boycotts" from "the boycott of Florida citrus products which was to protest against the Miami referendum withdrawing protection for gay civil rights" to the Revolutionary era colonists' boycott of British goods to protest the Stamp Tax.

Getting into the swing, two judges state that "One of the more famous political boycotts occurred in Montgomery, Alabama, to protest the racial segregation and discrimination on city buses. There have been consumer boycotts on meat, supermarkets, grapes, iced tea in cans, sugar or soft drinks, slacks, lettuce, textiles, chocolate, Saran Wrap, Mexico, tuna, animal skins and furs, Russian products and Japanese products."

And that's before the judges even get to the historic conversation among senators passing the Sherman Antitrust Act:

Mr. Sherman: I desire to say distinctly that that [preventing boycotts] is not my idea or the idea of any one of the committee.

Mr. George: I presume it is not.

Mr. Sherman: Nor do I believe it is a fair construction of the bill.

The appeals court rebuff is again unequivocal: "We find Missouri's focus on the facts of this case and not the district court's misleading . . ."

What a loss to American prose it is, that William O. Douglas never got a crack at this Ashcroft case. The record seems clear that Ashcroft's motivation in pursuing the lawsuit, with this kind of encouragement, was his own; neither the St. Louis and Kansas City mayors nor the local convention bureau endorsed it. The record remains to be clarified as to whether the failing lawsuit reflects Ashcroft's stance on women's organizations, on popular movements that use economic tactics successfully, or on the First Amendment, as the St. Louis Post-Dispatch editorialized at the time.

Nothing in the record indicates that Ashcroft felt impelled to move on many antitrust fronts; in other words, his motivation seems not to have been antitrust fervor. Mr. Ashcroft was faced with the Boeing-McDonnell Douglas merger in 1997 and with the failed Sprint-MCI WorldCom merger in 1999, both in Missouri. St. Louis-based Boeing's merger was the largest in aerospace history, but when the European Union objected to the merger on grounds that Boeing could dominate the world's aerospace market - which on the face of it doesn't sound like an off-the-wall accusation - Ashcroft joined in a letter to President Clinton criticizing not the merger but the EU. And when the Justice Department blocked the huge telecommunications merger of Sprint and MCI WorldCom, Ashcroft's response was to call the blocking -- not the proposed merger -- "distressing."

Predictably, the Center for Responsive Politics lists Sprint as Ashcroft's biggest contributor in 2000, and Boeing among his top ten.


You can contact Margie Burns at margie.burns@verizon.net

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