VIEWPOINTS : If Confirmed, Bork Could Become Business’s Hero : Senate Questioning Should Reveal His Ideas on Commerce

What are Robert H. Bork’s views on business? That question has been drowned out by the talk about the Supreme Court nominee’s positions on abortion, capital punishment and the like. Next month when the Senate examines President Reagan’s choice for the high court, however, it also should press Bork for his thoughts on property rights, deregulation, antitrust and on commercial rights in general.

Since at least 1954, the talk about the Supreme Court has focused on individual rights. Little wonder then that nearly everything presented to the public about Bork zeroes in on his opinions on the Bill of Rights and the 14th Amendment. This focus assumes that tomorrow’s banner issues will mirror today’s. If history teaches anything, it counsels against such parochial thinking.

Look for a future Supreme Court docket to include major political power issues such as conflicts between the three branches of government as well as between the federal government and the states. But disputes concerning Congress’ power to regulate commerce also are likely to come up. Thus, the Senate should put a number of business-related questions to Bork, including:

-How broad a reading should the court assign to the Fifth Amendment’s “taking” clause?

In principle, when the government takes your property for public use, it is obligated by the Fifth Amendment to compensate you. Except for a handful of cases, during the past several decades that principle has been applied to allow local officials, state administrators and federal regulators broad powers to promote the general welfare.

In two California land-use cases decided just this year, however, the Rehnquist Court has prepared itself to change the Fifth Amendment’s course. The Court, possibly backed by Bork, could revive the long-dashed hopes of those who scream “taking” when a rent control commissioner refuses a rent hike or when a federal agency denies an electric utility a rate increase.

-What are your constitutional views concerning the existence of independent administrative agencies and what responsibility should the federal courts have in overseeing them?

Try as it may, the Reagan Administration has been unable to win a total and lasting victory over the regulatory armies. In the future, however, deregulators may find a new ally in the Supreme Court.

The most likely first targets of the deregulators would be the so-called “anti-business” agency, also known as the Federal Trade Commission, followed by the Federal Communications Commission. Both agencies are, some say, “independent” in that they are in certain respects neither answerable to the President nor to Congress. That, at least, is the argument of the deregulators who argue that such agencies are unconstitutional because they stand outside of the executive and legislative structures of government.

Would Bork, the one-time Franklin Delano Roosevelt supporter, join with Justice Antonin Scalia (who has already raised the constitutional argument) and others in junking independent agencies such as the FTC, the FCC and perhaps the Federal Reserve Board?

If the federal judiciary were to pull back somewhat from the regulatory arena, a pro-business administration could significantly weaken the remaining controls over the food, airline, mining and manufacturing industries as well as government control over worker safety.

By one method or another, Bork might let that happen. For example, in a 1987 case, Bork set aside a Federal Energy Regulatory Commission decision denying a rate increase to an electric utility.

-Are there grounds other than economic efficiency to justify enforcement of antitrust laws?

When it comes to regulatory issues, economic efficiency is the Bork gospel. That is particularly true in the case of antitrust laws. In his much-touted 1978 book, “The Antitrust Paradox,” the one-time Yale law professor argues that the antitrust laws are meant solely to promote economic efficiency and that the market usually works better when left to its own devices. According to Georgetown Law School Dean Robert Pitofsky, if Bork’s writings “are a fair guide,” he would vote to overrule “about 90%” of the Supreme Court’s antitrust decisions.

Though the Bork view surely delights the Chicago School economists, it is a highly problematic proposition. First, it encourages judges and public officials to ride roughshod over other intentions of the lawmakers who enacted antitrust legislation. Second, as Brookings Institution antitrust expert Robert Katzmann has observed, the Bork position ignores “the deep-rooted and persistent American fear that concentrated power could undermine democratic government.” In other words, what is at stake is “not simply economic growth, but the very nature of American society.”

If either Reagan’s policy-makers or his judges affirm their first allegiance to the creed of economic efficiency, this could very well lead to a showdown between Congress and the executive branch’s antitrust deregulators. If called upon to resolve this power conflict, could Bork restrain his pro-executive and “pro-trust” tendencies?

-To what extent, if any, should heavily regulated businesses be protected by the Fourth Amendment’s warrant requirement?

Typically, the Fourth Amendment’s limitations on the government’s power to search or seize one’s belongings are associated with the rights of murderers, rapists and drug dealers. But when Occupational Safety and Health Administration inspectors come snooping around without a warrant, businessmen protest with all the fervor of “crack house” operators.

What Fourth Amendment concessions the Warren Court and its successors made to garden variety criminal suspects they denied to heavily regulated businesses faced with surprise government inspections. Does Bork agree with these different standards of treatment?

-Are your views on the First Amendment and the protection of commercial speech the same in principle as those expressed in a 1974 brief you submitted to the Supreme Court as Solicitor General?

In a 1971 article, then-professor Bork maintained that the First Amendment protects only political speech. Since then, he has taken a slightly broader, though still unclear, position. Back in 1974, Bork (aided by Frank Easterbrook, now a federal circuit judge) submitted a brief in favor of First Amendment protection of commercial speech. As a judge, he expressed a similar view in a 1985 FTC case.

Does the 60-year-old jurist now think the First Amendment should protect all or most kinds of truthful advertising such as cigarette and alcohol advertising or one-sided food labeling puffery? In 1986, the Supreme Court, by a one-vote margin, sent chills down advertisers’ spines when it reined in the generous protection previously accorded commercial speech. The fifth vote against the advertisers was Justice Lewis F. Powell Jr.’s, the man Bork hopes to replace. And broadcasters can take further comfort in the fact that in 1986 and again in 1987 Bork expressed his aversion toward the fairness doctrine, which until recently required broadcasters to air differing sides of controversial issues.

So is Bork good for business? According to a just-released report by the Washington-based Public Citizen Litigation Group, the answer is plainly yes. “In split cases where the government was a party,” the report notes, “Judge Bork voted against consumers, environmental groups and workers almost 100% of the time and for business in every such case.”

One judge does not a Supreme Court majority make. Still, in the right environment and under the right circumstances, the power of 1 can multiply. That was the case with the all-time nemesis of Big Business, Louis Brandeis. Bork could, by contrast, prove to be its long-awaited hero.