A Conservative's Antitrust Vision Part 2: Policy and Practice
After reviewing Commissioner Meador's philosophical anchors, I wrestle with his policy prescriptions and outlook
A few weeks ago, I wrote about the new FTC Commissioner Mark Meador and his paper on how conservatives should engage antitrust policy. Part 1 was a primer on the philosophical underpinnings that build a conservative perspective on antitrust. From Edmund Burke and Thomas Jefferson to Sen. Mike Lee there is a conservative tradition that is being engaged and revived. There’s a focus on limiting private power’s ability to govern the common man or his enterprise. There’s a clear sense that concentrated private power would produce autocracy in trade just as concentrated public power would produce autocracy in governance. In these matters, I fully agree. As I said, most leftists came to those conclusions after reading a wee bit of Marx; it is often the liberal who thinks that you can have benevolent corporate autocracy. Just make Amazon “woke,” and it’s cool that they dominate e-commerce, right? Commissioner Meador and I would say that is dangerously wrong. The liberal and the libertarian have both lost the historical and political plots. Unfortunately for Mr. Meador, his political party is made of a coalition that includes Big Business and libertarians which makes it much harder for his anti-consolidation politics to take root. That creates a series of policy problems and intra-party strife that I’d like to focus on here, starting first with judges.
Who Watches the Watchmen Judges?
Like me, Commissioner Meador believes that judges should be far more textual in their understanding of our antitrust laws.
Not only is the original Sherman Act quite clear, as the Commissioner notes, but also all of the antitrust laws passed after the Sherman Act were “clearly written to strengthen antitrust enforcement in places where Congress believed the Court’s interpretations had diverged from legislators’ intentions.” It’s then rather strange, if I’m being generous, when judges and intellectual schools come up with understandings of the antitrust laws that permit restraints of trade and further consolidate the economy. The text is quite clear, and Congress has had decades to rewrite the laws in favor of “efficiencies” or exceptions for “national champions”, if it so desired.
Meador’s desire here is to restrict judges from “legislating from the bench” and trying to contort antitrust laws to facilitate anticompetitive mergers based on their own desires and interest. I think that principle sounds reasonable to me but the more I think about it the more I find it both hypocritical and impractical.
To the former, I just refuse to take seriously a Republican lawyer who wants judges to stop “legislating from the bench” while decisions like Dobbs are current case law. Conservative judges, not always alone, have made sweeping political decisions that are both unpopular and strange, still being generous, in their legal reasoning. Meador believes that “the solution [to the problem of concentrated economic power] is not to put more power in the hands of unelected judges” even though his party has consistently done exactly that and created an academic and professional network to curate the judiciary to their unpopular political aims. He is, after all, a member of the Federalist Society.
Even in the realm of antitrust, Big Business went judge-shopping to find a right-wing judge that would reject the Federal Trade Commission’s ban on noncompetes. The regulatory power that Chair Khan and the Commission cited is in the statute, even though often dormant, yet conservatives judges said, at the behest of concentrated economic power, “no, because we don’t like that.” If Meador rebuked the naked politicization of the Judiciary by the Republican Party, including endorsing the noncompete ban, I would find his hostility to resting power with judges more digestible but alas. Once again, his stated views are in tension with his party and, frankly, his professional network.
There’s also something impractical about “de-politicizing” the Judiciary. It’s the kind of CNN-style talking point that doesn’t really have much merit when thought about deeply. Federal judges are appointed and then confirmed by elected politicians, as are the antitrust enforcers. If a senator runs on an anti-monopoly platform and confirms a judge that will enact that vision, that is politics; it’s a political choice. Furthermore, the actions of judges in cases from Brown v Board of Education, US v Standard Oil, US v Google, to god awful Dred Scott all had/have massive political ramifications.
Suing an oil or tech monopoly and restructuring those markets is a political act. It opens markets to free enterprise, reduces the political power of the former monopolists, and creates competitive markets for labor. Entire local, regional, and national economies are opened up. That directly affects the “kitchen table issues” we hear about all the time. To me, that is politics in a very material sense. Relegating economic issues or market structure to ivory towers, away from retail politics, divorces politics from material concerns and makes politics some distant sport like golf. The PGA tournament can continue with little ramifications on my life; selecting judges or enforcers who will stop RealPage from inflating rent prices in DC shouldn’t be treated the same way.
Ignoring the Judiciary as a lever of political power means ceding it to people, almost always Republicans, who would like to craft it to their own ends. I’ve said before that Democrats in Congress and aspiring to the White House should take “Judicial Craft” seriously by both passing bills to enshrine ethical norms into law and in appointments to orient the courts to our political aims. That’s not “politicizing the courts” because they’re already politicized. Ask women harmed by Dobbs, same-sex couples granted more rights by Obergefell, or search companies that see US v Google as their best hope for a competitive market.
Burke > Bork
We’ve discussed Burke so now let’s get to Bork. Robert Bork was probably the most influential antitrust lawyer in the last half century and popularized the consumer welfare standard and a libertarian view of antitrust law. These were crystallized in his 1978 book The Antitrust Paradox.
What Meador does that is so daring is not just challenge Bork but outright rebuke him. It’s quite rare to read a policy paper where someone so remorselessly dunks on a central architect of their party’s economic policy with a section title like “Robert Borke: Brilliant Lawyer, Failed Historian.” As if that wasn’t enough, here comes Commissioner Meador with the chair, stating:
“The problem for Bork is that the legislative and historical records yield almost no evidence that the drafters or supporters of the Sherman Act were concerned with the efficient allocation of resources across the national economy, let alone that they wanted or expected judges to declare by judicial fiat what practices maximize total economic welfare”.
This was honestly delightful to me. It also resonates with what Biden antitrust enforcers Jonathan Kanter and Lina Khan often stated when antagonized in interviews on CNBC or other corporatist outlets. They consistently said that their job is to enforce the laws as written by Congress. Despite how many Wall Street Journal hit pieces were published, this is actually the job of the Assistant Attorney General and an FTC Commissioner, not whatever Bork ahistorical-y decided it was.
So once you’ve professionally dragged the pillar of your party’s economic policy, what’s next? Well, you take what’s useful and upcycle it into something better. Meador attempts to rework Bork’s famed Consumer Welfare Standard into something more practical and tethered to the law and real effects on competition. Ever one to enjoy knifing Bork, Meador declares that:
“Bork’s tortured definition [of consumer welfare] actually requires calculating and offsetting the benefits and harms to all market participants, not just those we colloquially think of as ‘consumers.’ The result is a version of the antitrust laws that can excuse almost any merger or monopolization, so long as the benefits received by some market participants exceed the costs imposed on others–often a wealth transfer from the most economically vulnerable consumers to big business and their shareholders.
This is absurd on its face, and conservatives should not hesitate to reject it as an insult to our intelligence.”
Meador noting that Bork’s framework is functionally a wealth transfer to the wealthy and powerful gave me a Grinch-like smile because it’s exactly what a progressive would say. His remedy is for conservatives to “adopt consumer surplus, the net benefits to real consumers, as the definition of consumer welfare.” The concept of the “consumer” may change depending on context like labor markets or monopsonistic practices, so he defines it generally as “that class of persons whose business is courted by the alleged monopolist, their trading partners.” I think this is an attempt to not entirely destroy consumer welfare as an antitrust concept because most judges and scholars will reject that act as insane. However, Meador is stretching the notion of consumer quite a bit. I agree with this expanded definition, but it’s definitely further away from one that consumes.
This new framework moves away from an obsession with economists as the final arbiters of what are legal questions and with efficiencies as the highest maxim of statutes focused on competition and “trading partner” welfare. Once again, efficiencies and the tests economists have manufactured in antitrust are not contained within the statutes. They can be useful to help demonstrate anti-competitive harms or practices but at a certain point they are divorced from the spirit and history of the laws. Furthermore, just as there’s always a lawyer for even the worst of clients, there’s always an economist that will construct an analysis that permits market dominance or monopolization. Someone at McKinsey will produce a Powerpoint showing that Google’s purchase of DoubleClick was procompetitive.
What I really respect about Commissioner Meador’s thinking on antitrust is that he sees laws as moral statements, and he rejects the Borkian “science-ified,” economist-dominated approach to antitrust because it obfuscates the moral and philosophical propositions and questions within antitrust law. Sen. Sherman rejected autocrats of trade as antithetical to democracy and human flourishing. That is a moral statement and a philosophical point of view, not something an economist’s models produced. The injuries of monopolies and consolidation crush the potential for human flourishing and that should be taken more seriously than “efficiencies,” in my opinion.
The Borkian revolution in antitrust is problematic both for its lack of grounding in legislative and political history but also for its usage of undemocratic means to assert itself. Borkian antitrust is an extra-legislative and extra-judicial rewrite of our statutes and sits in contrast to the laws “clearly written to strengthen antitrust enforcement in places where Congress believed the Court’s interpretations had diverged from legislators’ intentions” like the Clayton, Federal Trade Commission, Celler-Kefauver, and Robinson-Patman Acts. To me, it seems that Meador is once again asking conservatives and the Republican Party to stand up from Democracy and either legislate these changes or deal with the statutes as is. Once again, he is in tension with a party that is anti-democratic and a political philosophy, Conservatism, that is often overtly hostile to Democracy.
Once again, I am left frustrated with the paradoxical calls for democracy while working for the destructively anti-democratic Trump Administration. Meador cites statute while his President attempts to end the Department of Education despite it being promulgated by statute. For all of his criticisms of Bork’s ahistorical and extra-judicial shenanigans, his boss fired Commissioners Bedoya and Kelly-Slaughter illegally. This is sort of the eternal problem with Republicans and conservatives: Many of them can write a great paper or treatise that I agree with but the professional and political follow-up isn’t there.
In the specific antitrust and anti-monopoly space, it makes for unreliable coalition partners. That’s the focus of Part 3 of this series. I’ll be covering what Meador thinks of the Democratic coalition (leftists, progressives, and liberals) in the antitrust space. I generally find his reading of us to be uncharitable and untethered from reality. I will have to rework my conclusion to this series because since I started this we now have some of Meador’s and the broader FTC’s receipts to pull. I won’t go into all of that now, but know that he is Republican first and an antitrust conservative second.
As always, thank you for reading.
Recommendations:
- of Abundance by Ezra Klein and Derek Thompson fame recently did an interview with Democratic Mayoral Nominee Zohran Mamdani. It was clear that they have some fundamentally different visions and structural critiques, but I thought this was a great interview that helped demonstrate Mamdani’s policy chops. Also, the Sewer Socialists were mentioned. We love them.
I recently found out that Derek Thompson went to my high school so that’s interesting.
Brendan Benedict closed out his coverage of the FTC case against Meta this week. He has dropped his final post on
, and you can read that here.Addison Rae’s album Addison is the album of the summer. I never thought the girl who got famous for doing dances on TikTok created by Black people would ever really deliver more than that, however this album is fantastic. Her vocals are subdued and airy in a way that is just alluring. The lyrics really engage modern fame, especially in the influencer era which is different than a sort of 2000s or earlier fame. Shocker: Her song “Fame is Gun” has been on repeat lately. Highly recommend.
Thinkpiece Tribe is a Youtuber I’ve recently become aware of. They are a One Piece fan, always a good sign, and produced a video on the politics of One Piece. There’s a very clear left-wing politics in One Piece: The main character is an anarcho-socialist gathering a found family of different species, different races, and survivors of genocide to travel the world and, in doing so, liberates nations from oppressive regimes. Ultimately this brings them into closer conflict with the totalitarian government and aristocracy ruling their planet. Hasan Piker has spoken about this a lot as well. The problem is that a fair amount of readers think that story is apolitical or can’t be political because it’s a shounen/battle manga. There’s a political literacy problem, and that is what Thinkpiece Tribe’s latest video is about.