Progressives have been masterful at weaponizing antitrust law to push their agenda during Joe Biden’s presidency.
In response, some on the right want to use antitrust to limit corporate America’s influence in our political and cultural affairs by abandoning the consumer welfare standard that has anchored antitrust for five decades. This would be a massive mistake that will only play into the left’s hands.
Antitrust law – which gives the government the power to police various harms to competition – has been in force since the 1890s. In the early aughts, antitrust enforcers and courts exploited the vague language of the antitrust laws to impose their own preferred outcomes over market forces. Instead of allowing private businesses to compete on the merits, the government used antitrust to pick winners and losers.
In his seminal 1978 book The Antitrust Paradox, conservative judge Robert Bork sought to reintroduce some objectiveness to antitrust enforcement by reminding the courts that Congress intended the laws to protect consumers. Bork’s consumer welfare standard – which stipulates that business activity only violates antitrust law when it is harming consumers through higher prices, reduced output, lower innovation, or shoddy product quality – has anchored antitrust for over five decades.
One only needs to look to the European Union, which favors a command-and-control approach to antitrust regulation, as evidence of the consumer welfare standard’s role in driving American innovation and prosperity.
In 1980, the EU’s gross domestic product was $3.3 trillion, dwarfing the U.S.’s $2.8 trillion GDP. Since then, the EU’s share of world GDP has halved. In 2023, U.S. GDP stood at $27.3 trillion, well above the EU’s $18.3 trillion GDP. Only 13 of Europe’s largest 100 companies were founded in the last 40 years. The world’s largest technology companies reside in America, not Europe, in part because consumer-based antitrust law does not punish companies for success.
Progressives want to shred the consumer welfare standard for two reasons. First, they oppose any effort to restrain government power. Second, they fear any economic power center that competes with the government. Their solution, as self-described “Neo-Brandeisian” antitrust hipsters, is a return to the “big is bad” antitrust vision espoused by late Supreme Court Justice Louis Brandeis. Instead of targeting business activity that harms consumers, Neo-Brandeisians want the government to break up companies that dare to grow larger than unelected bureaucrats prefer.
Neo-Brandeisians have reached their apex during the Biden presidency. Progressive activist Lina Khan, a key architect of the hipster antitrust movement, runs the Federal Trade Commission. Khan and Jonathan Kanter, her counterpart at the Department of Justice Antitrust Division, have launched multiple antitrust lawsuits designed to break up America’s crown jewel companies. Khan and Kanter brag that their aggressive antitrust agenda has chilled mergers and acquisitions, as if deterring any and all corporate combinations that do not harm consumers is a legitimate use of antitrust power.
Some on the right see how successful Neo-Brandeisians have been at using antitrust to expand government control over the economy and want to harness that power for their own ends.
Right-wing hipsters dislike when companies weigh in on issues of the day in progressive fashion. Because a company’s political power is downstream from its economic power, right-wing hipsters want to limit corporate America’s political power by restraining its growth through mergers and acquisitions. Under this regime, antitrust enforcers would consider whether a proposed merger would enhance an entity’s cultural or political influence in ways that conservatives dislike, blocking those that might even if they would otherwise benefit consumers.
Embracing this purely subjective approach will backfire on conservatives. If enforcers can block a merger because they believe it will harm nebulous notions like “republican virtue” or “human flourishing,” they can block a merger for impacting “climate justice” or any number of progressive hobby horses.
The left will beat the right at this game every time because they have no principles beyond authoritarian control. While right-wing hipsters have more modest goals, progressives want to regulate the entire economy through antitrust. By giving aid and comfort to the left-wing Neo-Brandeisians, conservatives are letting the proverbial Trojan Horse through the gates because they think it will help them reach their more limited goal.
Instead of linking arms with progressives, conservatives should advocate for codifying the consumer welfare standard into law, which would ensure that the government enforces antitrust law based on objective factors we can measure instead of amorphous values we cannot. While this may prevent the right from pushing back against corporate America’s progressive political speech, this also prevents the left from weaponizing antitrust to push a progressive agenda.
Any weapon you can wield can also be wielded against you. The possibility of using government power to achieve conservative ends is always tempting, but the left will beat us at their own game every time.
Instead of wanting the government to push back on progressive political speech through antitrust, conservatives should recognize that the best way to keep progressives from using antitrust to damage society is through enshrining the consumer welfare standard as the central goal of antitrust policy.
