486 U. S. 492
June 13, 1988
The National Fire Protective Association is a professional group dedicated to publishing expert quality electrical codes. Indeed, almost all states adopt the Association’s code into law wholesale. When polyvinyl electrical conduits were developed in 1980, the steel industry worried that polyvinyl would overtake steel as the standard conduit material. Thus, the steel industry packed the membership of the Association, for the sole purpose of determining that polyvinyl was unsafe in the 1981 electrical code. The polyvinyl industry charged that this brazen act of ballot stuffing violated antitrust law. The steel industry replied that quasi-legislative bodies were immune from antitrust liability.
Brennan rejected claims of immunity in a 7-2 decision. Because the Association had no official government capacity, and was in no way answerable to the American public, it was not a quasi-legislative body. The steel industry, undaunted, insisted that it still had immunity because its ultimate aim in overrunning the Association was to influence the state legislatures when they passed the legal electrical codes. Brennan would have none of this. Traditional political advocacy, like direct appeals to legislatures, public interest advertising, and boycotts were still immune. Cynical attempts to take over respected, non-partisan, and expert standard setting associations were not.
White, joined by O’Connor, charged in dissent that the actual holdings of the immunity precedents had been ignored. White could not get around the fact that the steel industry’s ultimate goal was to influence state legislatures by means of the Association code. It was no less intrinsically political at heart than direct lobbying of legislators. While the steel industry’s actions within the Association were scurrilous, they were also a rare aberration, and White did not wish to see rare aberrations warping antitrust immunity doctrine.
I’m not certain, but White may be correct. The old saying ‘hard cases make bad law’ applies well to this one. The steel industry acted unethically, and I’m glad they got punished for it. At the same time, making professional organizations which publish industry standards liable to antitrust suits is a rather slippery slope.