Abstract

The Capper-Volstead Act at 100: Farmers, Monopolies, and Corporate Power in America, 1922-2022

This paper offers a retrospective on a landmark piece of legislation, the Capper-Volstead Act of 1922. Capper-Volstead put a period at the end of what can be considered the classical era of antitrust regulation and enforcement, yet it has been almost entirely overlooked by antitrust lawyers and historians concerned with the legacy of the antitrust movement. Capper-Volstead recognizes the right of farm commodity producers to organize cooperatives as corporations under state law and to control production and prices, as long as 51 percent of their members are actual farmers, without becoming liable under federal antitrust law. Since the Reagan administration, antitrust enforcement has been practically moribund (although indications are that the Biden administration is beginning a resuscitation effort). So it may come as a surprise to hear that despite the herculean efforts of agricultural processors and food corporations, Capper-Volstead has remained unamended in the century since its enactment. The ironies here abound, but I will discuss two: 1) today, “agribusiness,” broadly defined as the centralization of economic power within agriculture resulting in the control of most food commodities by approximately four distinct corporate entities, has been unable to get the government to strip antitrust immunity from producers; and 2) despite the fact that Capper-Volstead protects farmers’ cooperatives from antitrust liability, cooperatives have relatively little power in the marketplace and have proven to provide little bulwark against the corporate concentrations that dictate how food commodities are produced and how much consumers pay for what they eat.