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State Regulators and Pragmatic Federalism in the United States, 1889–1945

Published online by Cambridge University Press:  13 December 2011

William R. Childs
William R. Childs
Affiliation:
WILLIAM R. CHILDS is associate professor of history atThe Ohio State University.I would like to thank Mansel G. Blackford, Walter A. Friedman, and Thomas K. McCraw for their assistance with this article.
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Extract

State regulators played a large part in constructing the American regulatory system from the late nineteenth century to the midtwentieth. They faced an adversary relationship not only with businesses but also, beginning with passage of the Interstate Commerce Act in 1887, with national regulators. Shaping a process of “pragmatic federalism,” the state regulators forged a cooperative regulatory regime in which they and national regulators controlled the nations's railroads. In the 1930s and 1940s, state regulators extended the cooperative approach to numerous other regulated industries. These findings challenge the argument that the Shreveport case ended meaningful state regulation and suggest that the rise of big government included a continued commitment to the federalist framework of the U.S. Constitution, at least to the mid-twentieth century.

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Articles
Information
Business History Review , Volume 75 , Issue 4 , Winter 2001 , pp. 701 - 738
Copyright
Copyright © The President and Fellows of Harvard College 2001

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References

1 Skowronek, Stephen, Building A New American State: The Expansion of National Administrative Capacities, 1877–1920 (New York, 1982)CrossRefGoogle Scholar; Balogh, Brian, “Reorganizing the Organizational Synthesis: Federal-Professional Relations in Modern America,” Studies in American Political Development 5 (Spring 1991): 119–72CrossRefGoogle Scholar; Leuchtenburg, William E., “The Pertinence of Political History: Reflections on the Significance of the State in America,” Journal of American History 73 (1986): 585–600CrossRefGoogle Scholar; Skocpol, Theda, “Bringing the State Back In: Strategies of Analysis in Current Research,” reprinted in Approaches to the Study of Politics, ed. Susser, Bernard (New York, 1992), 457–97.Google Scholar

2 For a contrasting lament, see William Safire, “Federalism: The Political Word that Means its Opposite,” in his column, “On Language,” The New York Times Magazine, 30 Jan. 2000, 20, 21. See also Jeffreys-Jones, Rhodri, “A Summing Up,” in The Growth of Federal Power in American History, ed. Jeffreys-Jones, Rhodri and Collins, Bruce (Edinburgh, 1983), 157–63.Google Scholar Jeffreys-Jones equates “federal” with “national” power.

3 Harry Seheiber is the leading scholar of American federalism, yet most of his work, and that of others, focuses on the period before 1910. Seheiber emphasizes the importance of state policy-making throughout American history in his article, “State Law and ‘Industrial Policy’ in American Development, 1790–1987,” California Law Review 75 (Jan. 1987): 415–44, but he does not focus on federalism or commission-style economic regulation. See also his “Federalism and the American Economic Order, 1789–1910,” Law and Society Review 10 (Fall 1975): 57–118, and especially p. 59 n. 4. In his book, Regulating a New Economy. Public Policy and Economic Change in America, 1900–1933 (Cambridge, Mass., 1990), Morton Keller also attacks the notion of centralization of power in the political economy during the first third of the twentieth century. He argues for the persistence of reform structures from the nineteenth century and mentions the role of the states in reform; yet, he does not emphasize the “federalist” nature of economic regulation of utilities (chap. 3) or of the “new technologies” (chap. 4). For an interesting mix of approaches to federalism, see the essays in Jeffreys Jones and Collins, eds., The Growth of Federal Power in American History. In that volume, Badger, Anthony J., “The New Deal and the Localities,” 102–15, reminds the readers of James T. Patterson's path breaking book, The New Deal and the States (Princeton, 1969)Google Scholar and of recent scholarship, which in general notes that the New Deal did not centralize power in Washington to the extent that many believed it had.

4 David Brian Robertson, “The Bias of American Federalism: The Limits of Welfare-State Development in the Progressive Era,” 261–91, and Synnott, Mareia G., “Federalism Vindicated: University Desegregation in South Carolina and Alabama, 1962–1963,” 292–318, both in Journal of Policy History 1 (1989).CrossRefGoogle Scholar

5 There are two usable treatments of NARUC. See Smykay, Edward Walter, “The National Association of Railroad and Utility Commissioners as the Originators and Promoters of Public Policy for Public Utilities”(Ph.D. diss., Univ. of Wisconsin, 1955), [hereafter cited as Smykay, “NARUC”]. I have surveyed much of the same material that Smykay did, along with materials relating to the Texas Railroad Commission that he did not. I emphasize more than he does the defensive character of NARUC activities. See also the in-house publicationGoogle ScholarRodgers, Paul, NARUC Was There: A History of the National Association of Regulatory Utility Commissioners (Washington, D.C., 1979).Google Scholar

6 McCraw, Thomas K., “Business & Government: The Origins of the Adversary Relationship,” California Management Review 26 (Winter 1984): 33–52CrossRefGoogle Scholar; McCraw, Thomas K., Prophets of Regulation (Cambridge, Mass., 1985)Google Scholar, while noting state efforts to regulate railways and securities, does not emphasize the federalist nature of regulation except to note that there was a general state-to-federal (“federal” here being “national”) movement of regulatory power.

7 By pragmatic, I do not mean “practical” or even “pluralistic,” although both of these terms identify parts of the processes described below. In his book. The New Deal (Chicago, 1967; 3rd ed., 1992), 10–12, Paul K. Conkin presents an accessible differentiation between pragmatic and practical. This kind of thinking infuses the materials I have been studying in American regulation; alas, the political process often denied the intense, detailed, and dispassionate work of the pragmatic process envisioned by C. S. Pierce and John Dewey. Political and economic self-interests rather than dispassionate forces often prevailed. Nonetheless, from my study of state and national regulators, it is clear that many believed they were following a pragmatic approach. They often lamented the messiness of the political process, of course, for politics often prevented them from installing the best regulatory program they had discovered through the process of consultation and analysis. For more material on pragmatism, see Livingston, James, Pragmatism and the Political Economy of Cultural Revolution, 1850–1940 (Chapel Hill, 1994).Google Scholar For an accessible overview, see Phelps, Christopher, “Pragmatism and Its Critics,” in Encyclopedia of American Cultural and Intellectual History, vol. 1, ed. Cayton, Mark Kupiee and Williams, Peter W. (New York, 2001), 679–88Google Scholar; “Another view has interpreted Dewey as the philosopher par excellence of the new political-managerial capitalism of the twentieth century, dominated by large-scale bureaucratic organization” (684).

8 Hyman, Harold M., “Is American Federalism Still a Fundamental Value? Scholars' Views in Transition,” in The Growth of Federal Power in American History, ed. Jeffreys-Jones and Collins, 143–56, traces the complex and changing views on the idea of federalism. I am not supporting, in Hyman's categorization (quoting Michael Reagan), the notion of “intergovernmental relations [as] … a political and pragmatic concept stressing the actual interdependence and sharing of functions between Washington and the states” (153). This view tends to negate entirely the power of centralization, which I do not. In “Summing Up,” in the same volume, Jeffrey-Jones notes: “Peering through the welter of qualifications and exceptions, one might suggest that very often pragmatism and war have been at the root of union and the expanding scope of federal government” (160).Google Scholar

9 For reasons of space, I have omitted discussion of the professionalization of regulation. For context, see Louis Galambos, “Technology, Political Economy and Professionalization: Central Themes of the Organizational Synthesis,” 471–93; and Lipartite, Kenneth J. and Miranti, Paul J. Jr., “The Professions,” in Encyclopedia of the United States in the Twentieth Century, ed. Kutler, Stanley I. (New York, 1996), 1407–30.Google Scholar This argument, which will appear in a forthcoming book, challenges Brian Balogh's thesis that the co-evolution of Federal institutions and the professional experts that staffed them converged in the early Cold War years. See Balogli, “Reorganizing the Organizational Synthesis,” 121, passim.

10 “There are numerous ways in which to interpret the state commissioners” responses. Two of the most often mentioned theoretical approaches include the rational actor model, where the maximization of agency self-interest (through maintaining budgets and power) is emphasized. and the capture theory, where it is alleged that the regulatory agency works more for the interests of the regulated than for the public interest. I am interested here in the importance of the ideas of states' rights and federalism, for the state regulators invoked these conceptions to support their arguments for continuation of their agencies. For convenient summaries of possible explanations for agency behavior, see Katzmann, Robert A., “Federal Trade Commission,” 157–8, nn. 22–5, in The Politics of Regulation, ed. Wilson, James Q. (New York, 1980)Google Scholar, and Brown, Anthony E., The Politics of Deregulation (Knoxville, Tenn., 1987), chap. 7.Google Scholar

11 McCraw, Prophets of Regulation, argues that more than any other factor, the structure of the industry being controlled shaped the regulations. I am arguing here, and will do so in much more detail in a forthcoming book, that legal and constitutional issues played, at times, as important a role in regulation as did the economic structures.

12 In 1923, “Railway” was changed to “Railroad.”

13 For the above three paragraphs, see McCraw, Prophets of Regulation, chap. 1, 57–65; Proceedings of the 22nd Annual Convention of NARUC (1910), 9–15, for overview of NARUC activity; Sharfman, I. L., The Interstate Commerce Commission: A Study in Administrative Law anil Procedure, part 2 (New York, 1931), 307Google Scholar, n. 243; Smykay, “NARUC,” especially 1–11. See also Childs, William R., Trucking and the Public Interest (Knoxville, Tenn., 1985), 49–51.Google Scholar By the early 1920s, as antagonism between the ICC and state regulators intensified, the state members seized more control of the organization. They held the annual meetings around the country, rather than in Washington, and did not elect Federal members as officers of the association. In 1967, the organization changed its name to National Association of Regulatory Utility Commissioners. See Rodgers, NARUC Was There, 14, 54.

14 Proceedings of the 22nd Annual Convention of NARUC (1910), 7–8, 9–15, for summary of NARUC activities, 74–5; see also Proceedings volumes for 1900 to 1910 and ICC Commissioner C. A. Prouty's address, Proceedings of the 24th Annual Convention of NARUC (1912), 1–6; Smykay, “NARUC.”

15 Ferguson, Maxwell, State Regulation of Railroads in the South (London, 1916), 51–4Google Scholar; Ripley, William Z., Railroads: Rates and Regulation (New York, 1916), 628–31ffGoogle Scholar; Caine, Stanley P., The Myth of a Progressive Reform: Railroad Regulation in Wisconsin, 1903–1910 (Madison, 1970)Google Scholar; Gould, Lewis L., The Presidency of Theodore Roosevelt (Lawrence, Kan., 1991).Google Scholar For a summary of the consolidation process in railroading, see Chandler, Alfred D. Jr., The Visible Hand: The Managerial Revolution in American Business (Cambridge, Mass., 1977), chap. 5.Google Scholar

16 Ripley, Rates and Regulation, 629–30; McCraw, Prophets of Regulation, 58–9; Cain, Myth of Progressive Reform; Proceedings of the 18th Annual Convention of NARUC (1906), 51–3.

17 I am extending the argument made for the Gilded Age by Brock, William R., Investigation and Responsibility: Public Responsibility in the United States, 1865–1900 (Cambridge, 1984).CrossRefGoogle Scholar See any copy of the Proceedings of the annual conventions of NARUC for insight into the broad range of issues beyond rate regulation. See particularly Proceedings of the 17th Annual Convention of NARUC (1905), 78–84, for an overview of state railway commission powers. The expansion of state reforms was not restricted to railroads and the emerging public utilities. Laws proliferated across the country and encompassed social areas such as workman's compensation and child labor. See Graebner, William, “Federalism in the Progressive Era: A Structural Interpretation of Reform,” Journal of American History 64 (Sept. 1977): 331–57.CrossRefGoogle Scholar

18 Berk, Gerald, Alternative Tracks: The Constitution of American Industrial Order, 1865–1917 (Baltimore, 1994)Google Scholar, especially chap. 6. Some railway executives had supported the idea of centralizing power in the ICC in the 1890s; after 1900, more and more Federal judges and national law makers became attracted to it; by the second decade of the century, a majority of railway executives supported the concept of enhanced national controls through the ICC. See Doezema, William R., “Railroad Management and the Interplay of Federal and State Regulation, 188.5–1916,” Business History Review 50 (Summer 1976): 153–78.CrossRefGoogle Scholar

19 Keller, Regulating a New Economy, 45, 243, n. 5.

20 Proceedings of the 16th Annual Convention of NARUC (1904), 26–29; Proceedings of the 17th Annual Convention of NARUC (1905), 41–6 (discussion on resolution to encourage Congress to act to speed up Federal court considerations of state cases includes comments on state-ICC relationships), 118–27 (shipper representatives' views); Proceedings of the 20th Annual Convention of NARUC (1908), 10–16, 14 (quotation).

21 Sharfman, ICC (Part 1), 35–52. Sharfman did not highlight the states' efforts that preceded the acts of 1903 and 1906. For information on state regulations, many of which antedated the powers conferred on the ICC in 1903 and 1906, see Brock, Investigation and Responsibility, chap. 7; Clark, Ira G., “State Legislation and Railroads of the Gulf Southwest,” Southwestern Social Science Quarterly 51 (1960): 268–82Google Scholar; Ferguson, Maxwell, State Regulation of Railroads in the South (London, 1916).Google Scholar For an interesting comparative overview of states' regulatory powers, which unfortunately contains some errors, see “Railways in the United States in 1902,” compiled by the ICC (Washington, 1903). For an example of how comprehensive one state's approach to regulation was, see Chapter 51, General Laics of the State of Texas Passed at the Regular Session of the Twenty-Second Legislature Convened at the City of Austin, January 13, 1891 and Adjourned April 13, 1891 (Austin, 1891), 55–65. Regulations of securities, consolidation of railway operations, and attempts to forge an effective approach to valuation were three of the other programs shaping the regulatory story. See Childs, Trucking and the Public Interest, 91–2.

22 Sharfman, ICC (Part 1), 71–2, 71, n. I; Proceedings of the 22nd Annual Convention of NARUC (1910), 9–15, 74–90; Proceedings of the 23rd Annual Convention of NARUC (1911), 159–72, 1801; Proceedings of the 24th Annual Convention of NARUC(1912), 1–6 (welcoming address of Charles A. Prouty, chair of the ICC).

23 Kerr, K.Austin, American Railroad Politics, 1914–1920: Rates, Wages, and Efficiency (Pittsburgh, 1965), 14–22Google Scholar; Martin, Albro, Enterprise Denied: The Origins of the Decline of American Railroads, 1897–1917 (New York, 1971)Google Scholar; McCraw, Prophets of Regulation, 91–4.

24 Sharfman, ICC (Part 2), 225ff; Minnesota Rate Cases, 230 U.S. 352 (1913). In this case, Minnesota had established intrastate rates lower than the existing interstate rates; but, because the ICC had not made an order sanctioning those interstate rates, the Supreme Court decided that Minnesota could establish rates lower than related interstate rates in the absence of ICC action. For a railway-oriented view of rate-making, see Mather, Robert, “How the States Make Interstate Rates,” Annals of the American Academy 32 (1908); 102–19.Google Scholar

25 Thompson, Alan S., “The Shreveport Rate Case,” in Grassroots Constitutionalism: Shreveport, the South and the Supreme Laic of the Land, ed. Provizer, Norman W. and Pederson, William D. (New York, 1988), 111–24Google Scholar, furnishes an overview from the point of view of Louisiana; see especially 111–14 for the background to the case. J. C. Dillard to Pat M. Neff, 28 Nov. 1930, Box 2–10/563, wallet 1930, Record Group 455, Texas Railroad Commission Records, Texas State Archives, Austin, Texas. In this letter Dillard alleged that the railways orchestrated the attack in the Shreveport case.

26 No. 3918.Meredith, J. J., Shelby Taylor, and Henry B. Schreiber, Constituting the Railroad Commission of Louisiana v. St. Louis Southwestern Railway Company et al. in Interstate Commission Reports (23 I.C.C.), 31–63, especially 31–3 (hereafter cited as ICC Xo. 3918).Google Scholar

27 Texas & P. Ry. Co. v. United States (Interstate Commerce Commission et al, Intervenes). No. 68. Commerce Court, 25 Apr. 1913. 205 Federal Reporter, 380–91 ff.

28 Houston, East and West Texas Railway Company v. United States. Texas and Pacific Railway Company v. United States. 234 U.S. (1913) 342, 350; Allison Mayfield to A. G. Pritchett, 12 Sept. 1914, Railroad Commission of Texas Letter Press, Texas State Archives, Austin, Texas [hereafter cited as RCTLP].

29 For two contrasting views of the jurisdictional issue in the 1910s, see, Coleman, William C., “The Evolution of Federal Regulation of Intrastate Rates: The Shreveport Rate Cases,” Harvard Law Review 28 (Nov. 1914): 1, 34–81CrossRefGoogle Scholar and Biklé, Henry Wolf, “Federal Control of Intrastate Railroad Rates,” University of Pennsylvania Law Review 63 (Dec. 1914): 2, 69–83.CrossRefGoogle Scholar Coleman argued that by 1913 the Court had not departed all that much from its earliest decisions on the commerce clause: states could regulate purely intrastate commerce and Congress could regulate interstate commerce. With the Minnesota rate case and the Shreveport case, however, the court, according to Coleman, ignored its own precedents and amended the Constitution when it argued that Congress could control intrastate commerce. In contrast, Biklé argued that both the Minnesota and Shreveport cases reflected the very conflicts that had given rise to the Constitution in the late 1780s, namely the need to ensure free flow of commerce among the several states. Biklé noted that the court identified the congressional power to control intrastate rates only when those rates conflicted with interstate rates; the court did not say that Congress could control all intrastate rates, but rather that it had the implied power (Biklé's term; the Court did not employ it here) that it could control intrastate rates when they conflicted with interstate rates.

30 No. 8418. Railroad Commission of Louisiana v. Arkansas Harbor Terminal Railway Company et al. Submitted April 12, 1916. Decided July 7, 1916. In ICC Reports 41 (July-Nov. 1916): 83–177. See also, for a review of the ease from the Texas perspective, 25th Annual Report of the Railroad Commission of Texas (1916), iv–ix; and for final disposition, 31st Annual Report of the RCT (1922), 3–6. For references in the TRC records to subsequent discussions on the Shreveport case, see Allison Mayfield to G. S. Maxwell, 22 July 1915, O. D. Hundall to J. Prince Webster, 31 Jan. 1916; Earle B. Mayfield to W. H. Stutsman, 13 Nov. 1916; Mayfield and Clarence Gilmore to W. P. Hobby, 9 Apr. 1919; Gilmore to ICC, 5 Oct. 1920; all RCTLP. In a forthcoming book, I shall go into more detail on Shreveport. Essentially, while the TRC did in fact establish intrastate rates to match or beat interstate rates, the Texas regulators also took into account many other factors when establishing rates. Their focus on the reasonableness of the rates, and their pioneering work in valuation, led the Texans to stay out of the initial stages of Shreveport because they believed their rates to be reasonable ones. That the railways and ultimately the ICC agreed with the Texans was lost in the contemporary and later analyses of the case.

31 Proceedings of the 26th Annual Convention of NARUC (1914), 188–98.

32 Ibid., 199–325. Ironically, in 1932, the U.S. Supreme Court, in two cases from Texas, upheld Texas laws regulating motor carriers, despite the fact that the motivation of the legislature was clearly to help railways compete with the new motor carriers. See Childs, Trucking and the Public Interest, chap. 4.

33 Proceedings of the 28th Annual Convention of NARUC (1916), 1–8, 7 (quotations); Proceedings of the 29th Annual Convention of NARUC (1917), 347–86, especially 354–5, 362–4, 368–79.

34 For an overview, see Lindahl, Martin L., “Cooperation Between the Interstate Commerce Commission and the State Commissions in Railroad Regulation,” Michigan Law Review 33 (Jan. 1935): 338–97CrossRefGoogle Scholar, especially 341–4 for the pre-World War 1 era.

35 Kerr, American Railroad Politics, 39–44, 54–71; Proceedings of the 29th Annual Convention of NARUC (1917), 3–8, 279–91, 294, 126–33. This volume furnishes an excellent overview of the positions of the various railway interest groups—executives, labor, and government in 1917 and the continuing attempts of the ICC and state commissioners to foster cooperation. Secretary of the Interior Franklin K. Lane, formerly a member of the ICC, devised the railways' cooperative plan.

36 Proceedings of the 30th Annual Convention of NARUC (1918), 23–94; Kerr, American Railroad Politics, chap. 5.

37 Proceedings of the 31st Annual Convention of NARUC (1919), 6–8, 171–7, 177–95, 11.5–61, 286–97.

38 Other programs NARUC supported included consolidations of railway operations and construction of new interstate lines under the supervision of the ICC; consolidation of terminal facilities and construction of local spur lines under the supervision of the states; coordinated regulation of waterways and railways; and shipper authority to route traffic, except in times of emergency. For the above two paragraphs, see Proceedings of the 31st Annual Convention of NARUC (1919), 31–45, 177–211. especially 186–7, 193–5, 197–8, 257–72, 286–97, 297–307, 312–15; Kerr, American Railroad Politics, especially chaps. 6–9; Martin, Enterprise Denied.

39 Kerr, American Railroad Politics, 222–7; Doezema, “Railroad Management and the Interplay of Federal and State Regulation,” 176; Ari Hoogenboom and Olive Hoogenboom, A History of the ICC: From Panacea to Palliative (New York, 1976), 96–8ff.Google Scholar “Address of Welcome by Hon. Edgar E. Clark” (chair of ICC), Proceedings of the 32nd Annual Convention of NARUC (1920), 3–9, 8–9, especially 21–31.

40 Childs, Trucking and the Public Interest, 86–93. The compromises, not surprisingly, also resulted in one other notable contradiction. On the one hand, the ICC was to coordinate transportation modes into an efficient system, relying on pooling and consolidation when possible. On the other hand, the ICC was to enhance competition whenever possible. Such a contradiction, coupled with other congressional assignments and rapidly changing transportation conditions in the 1920s, made the ICC less effective than it might have been otherwise.

41 Proceedings of the 33rd Annual Convention of NARUC (1921), 5–11, 24–8, 30, 31–2, 208–18, 247–56, 271–5, 289–313; Lindahl, “Cooperation in Railroad Regulation,” 344–50.

42 For the above two paragraphs: Proceedings of the 34th Annual Convention of NARUC (1922), 425–31, 426 (quotation), 63–6 and 428–31 for text of agreement; 66ff for examples of joint hearings already held; and Proceedings of the 37th Annual Convention of NARUC (1925), 244–59, for the revised agreement.

43 “Address of Hon. Max Thelen, Director of Public Service, United States Railroad Administration,” Proceedings of the 37st Annual Convention of NARUC (1919),320–1(quotation). At the time Thelen spoke, there was a vacancy on the ICC. The six state commission members on the ICC during this time were (with their state commission and years of service on the ICC indicated in parentheses): Charles C. McChord (Ken., 31 Dec.1910–1 Jan. 1926); Balthasar Henry Meyer (Wis., 31 Dec. 1910–30 Apr. 1939); Winthrop Moore Daniels (N.J., 6 Apr. 1914–1 July 1923); Clyde Bruce Aitchison (Ore.,5 Oct. 1914–52); George W.Anderson (Mass., 15 Oct. 1917–5 Nov.1918),succeeded by Joseph B.Eastman (Mass., 17 Feb. 1919–15 Mar. 1944); Ernest I.Lewis (Ind., 5 May 1921–31 Dec.1932).See Clarence A. Miller, “The Lives of the ICCommissioners and the Commission's Secretaries,” ICC. Practitioners' journal 13 (June 1946), sect. 2: 1–175; Inventory, Clyde Bruce Aitchison Papers, Special Collections Division, The Library, University of Oregon, Eugene.

44 Proceedings of the 33rd Annual Convention of NARUC (1921), 37, 245–6; 31st Annual Report RCT (1922), 3–8; Clarence E. Gilmore to F.A.Leffingwell,7 Jan., to O. D.Hudnall, 24 Jan., to Carl D.Jackson (president NARUC), 22 Apr., to C. C.McChord (Chair ICC), 10 May, to W. A.Nabors, 27 Nov. 1922, RCTLP.

45 In 1937, after years of experience, the ICC and NARUC institutionalized the process of assigning “cooperators” to cases before the ICC when more than eight states were involved. Lindahl, “Cooperation in Railroad Regulation,” 350–68ff; Sharfman, ICC (part 2), 307ff. Consult each volume of Proceedings of the annual NARUC conventions in the 1920s and 1930s for numerous examples of successes and setbacks in the cooperative process. See especially Proceedings of the 47th Annual Convention of NARUC (1935), 311–52, for an overview of the history of cooperation between the states and the ICC in railway regulation. Curiously, the ICC did not employ cooperative hearings in Shreveport-type cases as much as the states expected (342–44ff). As for the southern differential, not until the 1940s did Southern political leaders persuade the ICC that the differentials were discriminatory. See Potter, David M., “Historical Development of Eastern Southern Freight Rate Relationships,” Law and Contemporary Problems 12 (Summer 1947): 416–48CrossRefGoogle Scholar and Lively, Robert A., “The South and Freight Rates: Political Settlement of an Economic Argument,” Journal of Southern History 14 (1948): 357–84CrossRefGoogle Scholar; Childs, Trucking and the Public Interest, 148–9; Proceedings of the 55th Annual Convention of NARUC (1943), 11–15, reviews the procedure and history of the NARUC president assigning cooperators.

46 Smykay,“NARUC,”labels the era of NARUC from 1889 to 1920 as a period of cooperation; from 1920 to 1940 as a period of conflict; and 1940 to 1950 as a period of regionalism (411–423). Yet he equivocates (418): “Although this period (1920–1940) is labeled the period of conflict, nevertheless, this conflict was limited to the proper definition of authority of the states and the federal governments. In all actions which were designed to generally improve regulatory theory and practice there was still a considerable area of cooperation between the federal and state commissions.”

47 Lindahl, “Cooperation in Railroad Regulation,” 339–40; Smykay, “NARUC,” 47–57.

48 Childs, Trucking and the Public Interest, 50–4, 137–41, 148–9; Proceedings of the 51st Annual Convention of NARUC (1939), 139–41.

49 Smykay, “NARUC,” 51–5. For another view of the establishment of the FCC as it pertained to telecommunications, see McChesney, Robert W., Telecommunications, Mass Media, & Democracy (New York, 1993).Google Scholar McChesney does not include the state commissions or NARUC in his version. See also Proceedings of the 46th Annual Convention of NARUC (1934), 92, 95–6; Proceedings of the 47th Annual Convention of NARUC (1935), 358–62; Proceedings of the 52nd Annual Convention of NARUC (1940), 186–8.

50 Smykay, “NARUC,” 230–48, 260–4.

51 Proceedings of the 47th Annual Convention of NARUC (1935), 362–70; Proceedings of the 48th Annual Convention of NARUC (1936), 268–72, 266.

52 Smykay, “NARUC,” ch. 5; Vietor, Richard H. K., Contrived Competition: Regulation and Deregulation in America (Cambridge, Mass., 1994), 100–7CrossRefGoogle Scholar; Sanders, M.Elizabeth, The Regulation of Natural Gas: Policy and Politics, 1938–1978 (Philadelphia, 1981), 17–42.Google Scholar Many of the so-called consumer states did not recognize that many of the producer states were also consuming states.

53 “Remarks of Commissioner Claude L. Draper, of the FPC,” Proceedings of the 50th Annual Convention of NARUC (1938), 46–55, 49 (quotation); 234–6; Sanders, Regulation of Natural Gas, 42–5.

54 Federal Utility Regulation Annotated Supplement A to Volume 2: Federal Power Act and Natural Gas Act (Washington, D.C.,1953), 166–72. “The State Viewpoint of the Lea Bill on Gas Rate Regulation By Ernest O.Thompson Texas Railroad Commission Chairman Interstate Oil Compact,” 10 Sept. 1938, Box 4–3/327, folder Apr.-Oct. 1938, Ernest O.Thompson Records, Texas State Archives, Austin, Texas (quotation). Commissioner Thompson praised the innovation of the joint boards, believing that joint boards would work better in natural gas than in oil production, which after 1935 was regulated in part through an interstate compact.

55 Proceedings of the 46th Annual Convention of NARUC (1934), 308–17.

56 McCraw, Prophets of Regulation, 173–6, 181; Steinberg, Alfred, Sam Rayburn: A Biography (New York, 1975), 111–14, 116–18Google Scholar; Proceedings of the 53rd Annual Convention of NARUC (1941), 231–49ff, 240–4 for Holding Company Act of 1935; Proceedings of the 57th Annual Convention of NARUC (1945), 74–5; Proceedings of the 53rd Annual Convention of NARUC (1941), 238–9.

57 Proceedings of the 52nd Annual Convention of NARUC (1940), 174–5, 177–86, 225–6. The new provision now allowed joint boards to continue even in the absence of some of the participants.

58 Proceedings of the 54th Annual Convention of NARUC (1942), 8–15, 36–47; xiv, 166–81 (some debate over whether the special committee on telephone matters should be continued during the war took place); Proceedings of the 58th Annual Convention of NARUC(1946), xiv, 166–78, 441–3, 99–122.

59 Childs, Trucking and the Public Interest, 168–71; Proceedings of the 54th Annual Convention of NARUC (1942), 37ff.

60 Proceedings of the 54th Annual Convention of NARUC (1942), 109–16, 140–2; Proceedings of the 57th Annual Convention of NARUC (1945), 58–72, 66–8 (the Texas story); Smykay, “NARUC,” 358–60ff.

61 Proceedings of the 52nd Annual Convention of NARUC (1940), 222–3; Proceedings of the 53rd Annual Convention of NARUC (1941), 142–6; Proceedings of the 57th Annual Convention of NARUC (1945), 73–4; Smykay, “NARUC,” 310–18ff.

62 Proceedings of the 52nd Annual Convention of NARUC (1940), 189–93; Proceedings of the 53rd Annual Convention of NARUC (1941), 148–9; Proceedings of the 54th Annual Meeting of NARUC (1942), 120–30; Proceedings of the 57th Annual Convention of NARUC (1945), 78–92, 91–2 especially.

63 Proceedings of the 58th Annual Convention of NARUC (1946), 12–16 (NARUC president John D. Biggs in his address to the convention noted the emerging problems with the 1938 Act); Vietor, Contrived Competition, 100–7; Sanders, The Regulation of Natural Gas, chap. 4; Alan D. Anderson and Mary Beth Walker, “The Texas Natural Gas Transmission Industry” (prepared for Texas Energy and Natural Resources Advisory Council, Energy Development Act, Project #1189), chap. 2, especially 52–4 (copy in author's possession).

64 Proceedings of the 52nd Annual Convention of NARUC (1940), 193–5; Proceedings of the 54th Annual Convention of NARUC (1942), 130–9; Proceedings of the 57th Annual Convention of NARUC (1945), 74–8, 75 (quotation).

65 Proceedings of the 55th Annual Convention of NARUC (1943), 15–21, 64–70 (CAB position), 71–6; Caves, Richard E., Air Transport and its Regulators: An Industry Study (Cambridge, Mass., 1962), 133–6.Google Scholar

66 Proceedings of the 58th Annual Convention of NARUC (1946), 9–25, 12–20 especially, 17 for reference to Munn.

67 For more discussion on the cooperative aspects of federalism, see the following in The Growth of Federal Power in American History, ed., Jeffreys-Jones and Collins: Jeffrey-Jones, “A Summing Up,” 157–63, and Harold M. Hyman, “Is American Federalism Still a Fundamental Value? Scholars' Views in Transition,” 143–56.

68 For a later analysis of the potential effectiveness of regionally divided units in the American political economy, see Lodge, George C., The New American Ideology (New York, 1976).Google Scholar Other factors contributed, of course, including the reluctance of national regulators.

69 Seely, Bruce E., Building the American Highway System: Engineers as Policy Makers (Philadelphia, 1987)Google Scholar; Rose, Mark H., nterstate: Express Highway Politics, 1941–1956 (Lawrence, Kans., 1979).Google Scholar

70 Constant, Edward W. II, “Science in Society: Petroleum Engineers and the Oil Fraternity in Texas, 1925–1965,” Social Studies of Science 19 (1989): 439–72CrossRefGoogle Scholar; Childs, William R., “The Transformation of the Railroad Commission of Texas, 1917–1940: Business-Government Relations and the Importance of Personality, Agency Culture, and Regional Differences,” Business History Review 65 (Summer 1991): 285–344CrossRefGoogle Scholar, and “Texas, the Interstate Oil Compact Commission, and State Control of Oil Production: Regionalism, States' Rights, and Federalism during World War II,” Pacific Historical Review 64 (Nov. 1995): 567–98; Donovan, William J., “State Compacts as a Method of Settling Problems Common to Several States,” University of Pennsylvania IMIC Review (Nov. 1931): 5–16.CrossRefGoogle Scholar

71 McCraw, Prophets of Regulation, chap. 6, labels the post-1945 period as one of decline, but Rodgers, NARUC Was There, labels the period from 1945 to 1978 as “The Golden Age of Regulation” (see chap. 5). Breyer, Stephen, Regulation and Its Reform (Cambridge, Mass., 1982), 378–81Google Scholar, discusses “administrative law,” which, given its complexity, surely contributed to the inability of regulators to respond to changes in the economy in an effective manner; yet, ironically, the movement to codify administrative law came in part from efforts to professionalize the regulatory process. For an interesting analysis of one industry's regulatory problems, see Sanders, Regulation of Natural Gas, chap. 4, passim.

72 None of the following studies of deregulation emphasizes the roles of the states in the story: McCraw, Prophets of Regulation, ch. 7; Felton, John Richard and Anderson, Dale G., eds., Regulation and Deregulation of the Motor Carrier Industry (Ames, Iowa, 1989)Google Scholar; Teske, Paul, Best, Samuel, and Mintrom, Michael, Deregulating Freight Transportation: Delivering the Goods (Washington, D.C., 1995)Google Scholar; Brown, The Politics of Deregulation. See the essays by Foote, Susan Bartlett and Jorde, Thomas M., and comments by Derthick, Martha and Abrams, Richard M., in Perspectives on Federalism: Papers from the First Berkeley Seminar on Federalism, ed. Scheiber, Harry N. (Berkeley, 1987), 41–114Google Scholar, for some interesting approaches to understanding deregulation within a federalist framework. None of these takes the point of view of the states, however.

73 Freyer, Tony, Regulating Big Business: Antitrust in Great Britain and America, 1880–1990 (Cambridge, 1992)CrossRefGoogle Scholar; Armstrong, Christopher and Nelles, H. V., Monopoly's Moment: The Organization and Regulation of Canadian Utilities, 1830–1930 (Philadelphia, 1986)Google Scholar; Cruikshank, Ken, Close Ties: Railways, Government, and the Board of Railway Commissioners, 1851–1933 (Montreal, 1991).Google Scholar