Regulatory Policy

Conservatives Step into the Left’s Antitrust Trap

FTC Commissioner nominee Lina M. Khan testifies during a Senate committee hearing on Capitol Hill, April 21, 2021. (Graeme Jennings/Pool via Reuters)
The blood-boiling excesses of woke corporations can and should be curbed. But there’s no need to destroy the American free-market system in the bargain.

When Daniel Oliver, the chairman of the Federal Trade Commission under Ronald Reagan, comes out in The American Spectator in favor of realigning antitrust law to break up large corporations — “big can be bad after all” — it should be news. The only thing more counterintuitive would be an Instagram post of current FTC chair Lina Khan engrossed in a copy of Free to Choose.

Oliver’s change of heart, like that of many leading conservatives, is fueled by white-hot anger at woke corporations — social-media giants that cancel posts and stamp warning labels on conservative opinions, online retailers that blacklist books, and other businesses that throw their economic might behind progressive causes. While I am skeptical of Oliver’s claim that the suppression of the Hunter Biden laptop cost Donald Trump the election, he’s not wrong to imagine woke legions in content departments always at work like diabolical elves, suppressing what they see as indefensible points of view. The result is an ideological bowdlerization of social media that ought to — and does — make every conservative’s blood boil.

Things are so bad now, Oliver informs us, that Judge Robert Bork, who saw consumer welfare as the anchor of antitrust law, would today be paddling furiously away from his life’s work. But as Judge Bork’s son, I have to say I doubt it. In The Antitrust Paradox, Judge Bork wrote that he saw four observable trends in antitrust law:

(1) a movement away from political decision by democratic processes toward political choice made by courts: (2) a movement away from the ideal of free markets toward the ideal of regulated markets; (3) a tendency to be concerned with group welfare rather than general welfare; and (4) a movement away from the ideal of liberty and reward according to merit toward an ideal of equality of outcome and reward according to status.

“Common to all of these movements,” he concluded, “is an anticapitalist and authoritarian ethos.” I believe my father would not be surprised to see a return and acceleration of these trends today. I do think he would be gobsmacked to see stalwarts of the free market cheering them on.

Oliver says it is time to retire the almost-50-year-old consumer-welfare standard, despite a quadrupling in the size of our economy over that time. “Did we fight a revolution to save five cents on undershirts?” he asks, bringing to mind G. K. Chesterton’s definition of a puritan as someone “who pours righteous indignation into the wrong things.”

Oliver’s crusade might not be worth remarking upon, if it didn’t threaten to lead other conservatives down a slippery slope to the end of capitalism and the rise of political management of the economy. Don’t believe me? Consider the recent evolution of the FTC.

During the Reagan years, Oliver restrained the powers and ambitions of the FTC. Under Lina Khan, a Democratic majority of commissioners recently replaced the commission’s chief administrative-law judge with a political appointee. They also rescinded a bipartisan commitment to the consumer-welfare standard and changed the rules so that it no longer takes a majority of commissioners to launch the investigation of a company. Any commissioner can now decide to put a company and its executives in the crosshairs.

In short, Khan has transformed the FTC into a predatory power that enforces nebulous standards, granting her total discretion in choosing whom to persecute. In her first week on the job, she even issued a gag order prohibiting FTC staff from speaking publicly at conferences and other events, a move that commission insiders say is meant to force professional staffers to quit so she can pack the agency with loyalists.

Oliver believes that jettisoning the consumer-welfare standard will put the fear of God into woke corporations. But what it will really do is leave them at the mercy of Khan and other unaccountable bureaucrats. On Friday, President Biden signed an executive order to deploy more than a dozen federal agencies to aggressively seek out antitrust actions in almost every major industrial sector. The result will be an insane degree of unpredictability that will have every corporate executive in America looking daily to Washington for ideological guidance and the line of the day.

Companion efforts are already at work on Capitol Hill to give this new predatory antitrust regime statutory force. Senator Amy Klobuchar’s antitrust proposal would enact so many potential ways to prosecute, abuse, and torment companies that government would, in essence, become every major company’s board of directors. And right behind the Minnesota Democrat is Missouri Republican Josh Hawley, who wishes to ban all companies with a market cap over $100 billion from acquiring or merging with other businesses.

Such conservatives — 21 of them in the Senate voted to confirm Khan to the FTC — seem to be in favor of fossilizing American capitalism. If they pass Hawley’s bill, Boeing, Procter & Gamble, ExxonMobil, and Texas Instruments will be hobbled. Is that a reasonable response to the cancellation of Facebook and Twitter posts?

At some point, regulation becomes ownership. With the vassalage of American executives, woke-corporate cancel culture will become more obnoxious than ever before. Conservatives such as Oliver, who applaud the overturning of existing standards and law, would set off an atom bomb to kill a weasel, destroying the American free-market system and those companies that still quietly uphold traditional American values in the bargain.

Bringing balance to social-media conversations need not entail anything so drastic. Senator John Thune (R., S.D.) is cosponsoring bipartisan legislation to change the terms of Section 230 of the Communications Decency Act, which grants social-media platforms immunity from liability for the contents of their users’ posts. Thune’s bill, the PACT Act, would force platforms that accept legal protection from liability to publicly defend the reasons behind their censorship and give users an appeals process. Conservatives would be well advised to switch their attention to a focused solution like that, rather than joining Lina Khan in setting the world on fire.

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