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Updating Antitrust for a Free People

Can it change with the times — and save the country from corporate, anti-constitutional vandals?

The past has its charms, but it’s still the past. Andy Kessler of the Wall Street Journal (and no doubt thousands of others) seems mesmerized by an antitrust theory developed in the 1960s. In case you haven’t been paying attention, a lot has changed since then.

In a recent column, Kessler decried a return of the “Big is bad” theory of antitrust. That theory, he says, was developed by Supreme Court Justice Louis Brandeis (1916–39) “who disliked big business, especially railroads.” The Brandeis understanding of antitrust was superseded by Judge Bork’s thinking, compellingly set forth in his brilliant book The Antitrust Paradox. That book was published in 1978, but the first draft was finished in 1969.

In the 1980s, Bork’s theory became the policy of the Reagan administration’s antitrust enforcers. But even 1980 is now a long time ago, closer to the age of radio, even crystal radios, than to the internet age we live in today, and it is surely a mistake to trap the thinking of as brilliant a man as Bork in the amber of his time.

A major change in the country now as compared to 1969, 1978, or 1980 is the raging culture war, which Bork commented on in his book Slouching Towards Gomorrah, published in 1996. Hostilities have escalated dramatically since then, and most of big-corporate America is not only not on the side Bork would be on but is using its market power to hasten the country’s arrival at Gomorrah. Slouching, Hell; now it’s sprinting towards Gomorrah.

Would Bork stick to the position he first staked out in 1969? That seems unlikely.

Antitrust is part of the real world. It’s not a laboratory experiment. What is the purpose of law? What is the purpose of public policy? What is the purpose of antitrust? That debate is the one “conservatives” in this country are now embroiled in.

There are the libertarians who seem unconcerned about the blatant attacks on our liberties as long as that attack is perpetrated by private companies (even if those companies achieved their dominance through government regulations that disadvantaged their competitors).

That is not the position of traditional, cultural conservatives. They value societal, and constitutional, arrangements as much as they value economic efficiency. They know there’s a culture war going on, and they know they’re losing it.

One reason they’re losing is that corporate America is against them. Four of the biggest information companies in the country (Apple, Amazon, Google, and Facebook) put their hands on the scales of democracy in 2020 to swing the election to Joe Biden. (Please note: that is different from saying the election was stolen, and that comment is different from saying it was not stolen.) The Hunter Biden laptop scandal was buried by almost every major news outlet in the country. Pfizer’s CEO delayed the announcement of the efficacy of his company’s vaccine until after the election. And most of big-corporate America (Coca-Cola, Delta Airlines, JPMorgan Chase, ViacomCBS, Citigroup, Cisco, UPS, and Merck, among others) is currently engaged in promoting anti-American woke ideas like critical race theory and the 1619 Project.

As an economic theory, big may not necessarily be bad. But what happens if big always, or often, or even only sometimes, turns out to be bad? Bad for what?

That’s the question.

Which is “better”: a system that lets big corporations do whatever they want — even if those actions are designed to undermine our democratic institutions, suppress dissent, and marginalize those who hold differing values, including traditional American ones like individual responsibility and the “racist” presumption that people should be judged by the content of their character, not the color of their skin? Or is it better to have a system that safeguards our democratic institutions — even from powerful private interests — and promotes traditional American values, or at least protects those that hold them from reprisal?

And here’s a question for the assorted libertarians and “economic conservatives” whose exclusive focus is maximizing economic efficiency: how long do you think those efficiencies will be maximized once our individual liberties are extinguished? How’s that working out for people in China?

Kessler devoted his column to the concept of consumer harm, by which he means only the economic harm caused to consumers by bad (and illegal) corporate practices. But even if we were to grant, for the sake of argument, that consumer prices have any real probative value in an economy awash in subsidies and skewed by regulation (does anyone really think the price of solar panels, wind turbines, and electric cars; primary, secondary, and post-secondary education; double bypass operations; or pretty much any prescription drug sold in the U.S. — to name just a few consumer items — is determined by market forces?), we still have to ask: is economics all we care about? Did we fight a revolution to save five cents on undershirts?

What about suppressing the news? What about changing the election laws in ways that make cheating easier? What about firing people who voted for Donald Trump or attended the rally at the Capitol on Jan. 6? The mega-companies listed above employ more than a million people, which means they have the power to silence a million people and suppress the views and activities of millions of others. The New York Times ran an article three years ago headlined, “How Banks Could Control Gun Sales if Washington Won’t.” Did the Times reject the headline “How Banks Can Repeal the Second Amendment if the Supreme Court Won’t”?

James Damore, a Harvard graduate and software engineer at Google, was fired for writing in a memo that there were differences between men and women. If there had been four other, if smaller, competing Googles, he might not have been let go.

JPMorgan Chase supports Planned Parenthood. If you worked at JP, would you dare say Planned Parenthood is involved in killing babies? When they fired you, could you get a comparable job at a comparable bank? Name one. How many comparable banks are there?

Sen. Josh Hawley (R–Mo.) has introduced an antitrust bill that would, inter alia, ban all mergers and acquisitions by companies with a market capitalization exceeding $100 billion. That’s one way to deal with the antitrust problem, but of course it doesn’t address the cultural and constitutional threat big business presents.

On June 11, House Democrats and Republicans introduced bills intended to check the power of Silicon Valley mega-corporations. But the bills seek to outlaw only certain economic activities of the companies (e.g., giving their own products and services preference over rivals) and don’t address the broader, and central, issue: too much power by mega-corporations over citizens’ lives.

Are there other ways to deal with excessive corporate power? Perhaps. The attorney general of Ohio, Dave Yost, has filed a suit against Google, claiming that Google should be regulated as a public utility due to its “discriminatory and anti-competitive” practices. Yost is not seeking monetary damages but instead asks that Google be declared a “common carrier” that could be regulated by a body such as the state’s Public Utilities Commission.

“Google uses its dominance of internet search to steer Ohioans to Google’s own products — that’s discriminatory and anti-competitive,” Yost said in a prepared statement. “When you own the railroad or the electric company or the cell phone tower, you have to treat everyone the same and give everybody access.” Fair enough.

But while using existing concepts and laws may be faster and easier than enacting new antitrust legislation, it won’t solve the problem. Many Americans might believe their constitutional liberties would be more secure if we were to move back toward a more Jeffersonian concept of size (updated for the 21st century), not small perhaps, but at least smaller than gargantuan — and small enough not to be able to dictate what we think and how we live our lives.

In many, and perhaps most, antitrust cases, we can stick with Bork’s analysis because the firms involved won’t have the power wielded by the mega-corporations (however we eventually decide to define them). They’re the problem, and they should be “urged” to stick to their business or be broken up into smaller companies.

Would that be popular? When Americans were asked recently by the Gallup organization how they felt about the size and influence of major corporations, 73 percent said somewhat dissatisfied or very dissatisfied. That looks like a majority — you can already hear the mega-corporations demanding a recount.

Would Americans pay a price at the store if, as Bork’s book tells us, the mega-corporations were broken up and the smaller companies were marginally less efficient? Yes. But they also pay a price for having a military, and a highway department, and a municipal water inspector, and national cemeteries. Why not pay a price for keeping mega-corporations from fixing elections? And banning books? And firing people who think men and women are different? And trashing the anti-cheating protections of election laws?

If you think the maintenance of democracy and constitutional government is free, you may want to take a visit to a national cemetery (there are 155 of them) or one of the thousands of war memorials across our country — and you’d best hurry, before they’re all torn down or desecrated by woke mobs spurred on and financed by our leading corporate and other “private sector” interests.

The past is gone. Times change. Americans shouldn’t be, and probably are not, afraid to change with them. It turns out, big can be bad after all. It’s time to update antitrust.

Note: For further discussion of this issue by this author, see the current issue of the Claremont Review of Books.


June 28, 2021
The American Spectator

What Follows Coming Apart? Revolution?

The center isn’t holding—if there still is a center. Now approximately 39 percent of Americans believe the election was rigged. The belief is held by 67 percent of Republicans, 17 percent of Democrats, and 31 percent of Independents.

Peter Navarro, assistant to the president, director of Trade and Manufacturing Policy, and national Defense Production Act policy coordinator, has produced a 35-page report assessing the fairness and integrity of the election. The findings are distressing to believers in democracy and the American tradition of fair elections. The report examines six dimensions of alleged election irregularities in six key states, usefully compiling in one place the truly massive evidence we’re constantly being told doesn’t exist.

Numbers from around the country just don’t add up and Navarro’s not the only one to question the integrity of the election results. Patrick Basham, the director of the Democracy Institute, gave some specifics on the December 6 “Mark Levin Show.”

Basham pointed out that Trump improved his national performance over 2016 by almost 20 percent, and that no incumbent president has ever lost a re-election bid if he has increased his votes. President Obama’s vote total in 2012 was 3.5 million fewer than his 2008 total, but he still won comfortably.

Trump got even more votes from the white working class than he received in 2016. And he held his own among women and suburban voters against most of the polling expectations.

He did very well among Catholics. He improved his total from Jewish voters. He had the best minority performance for a Republican since Richard Nixon in 1960, doing well with African Americans, and importantly, with Hispanics. Biden actually received less than 90 percent of the African American vote.

So why didn’t Trump win? Why did he suddenly start losing in the middle of the night?

Basham concedes that that could have happened legitimately, but that it is most unlikely. And if that unlikely happening was legitimate, it should have shown up generally across the country and “not just in key precincts, in key cities, in key swing states, and nowhere else.” Basham said that even though Biden was the challenger, he allegedly received more votes than any candidate for president in American history. He did very, very poorly in most of the country, except where it absolutely mattered.

So in an election in which Republicans at all levels throughout the country did extremely well, and against all polling expectations, Trump lost. Not. Bloody. Likely.

In addition to the innumerable claims of fraud, there are technicalities—and technicalities count if we are a nation of laws. Georgia entered into an illegal Consent Decree, effectively gutting the signature-match requirements for millions of mail-in ballots.

Under the constitution of Pennsylvania, any changes to the election law have to be made by amending the state constitution. But the changes that were made in the last year and a half to allow mail-in ballots (of which there were millions) were not made by amending the constitution. Pennsylvania’s Democrat Secretary of State issued illegal guidance on the acceptance of naked ballots, ignored the direction from the Pennsylvania Supreme Court to fix the problem, then allowed ballots to be illegally cured in contravention of state law.

Wisconsin’s Election Committee illegally placed five hundred drop boxes for absentee ballots, largely in urban Democratic strongholds, when by statute, any use of a drop box is illegal.

And those are just some of the problems. Navarro itemizes numerous others, including instances of official law-breaking in Michigan, Arizona, and Nevada.

Not surprisingly, Navarro’s report was treated with disdain by the usual suspects in the mainstream media. But they, along with so many formerly esteemed institutions, a short list including the FBI, Justice Department, and the intelligence community, lost all credibility years ago.

It is useful to remember that fifty former senior intelligence officials, including John Brennan, a former director of the Central Intelligence Agency; James Clapper, former director of National Intelligence; and Michael Hayden, former director of the National Security Agency, signed a letter shortly before the election stating that the Hunter Biden laptop emails had “all the classic earmarks of a Russian information operation.” Now we’ve learned that the Justice Department has been conducting a criminal investigation into Hunter Biden’s tax affairs since late 2018!

And we have been told unequivocally that the voting machines in six key states were essentially unhackable—or at least not hacked. Yet we read on the front page of the December 18 edition of The Wall Street Journal a story on Russian hacking titled “U.S. Cyberattack Suggests More Sophisticated Hack.” If Russia, a gas station run by a drunk, can hack into the big stuff, it seems likely that crooked Democrats, perhaps with the aid of their Chinese friends, can fix a few voting machines.

But even if the voting machines weren’t hacked, even if every single witness is lying and every single one of their affidavits amounts to perjury; even if SCOTUS has suddenly become supremely disinterested in the equal protection clause they found so compelling when the rights of Bush voters were being violated, the patently illegal actions by officials in Pennsylvania, Georgia, and Wisconsin could well have been enough in themselves to give the election to Biden. There doesn’t need to be any fact-finding or, to quote the former Attorney General, “fraud on a scale that could have effected a different outcome” to invalidate the election in those states.

What should people who are losing or have lost faith in the integrity of the democratic process do?

Seventeen state attorneys general and 106 Republican members of Congress joined an unsuccessful suit brought in the US Supreme Court by the state of Texas to block Georgia, Pennsylvania, Michigan, and Wisconsin from voting in the Electoral College because changes their legislatures made concerning mail-in ballots violated their own state laws and thereby the US Constitution.

It is true that courts have not been receptive to any of the lawsuits charging election irregularities, but claims by the woke media that no court has found even a single instance of fraud are—this will surprise you—misleading. The court’s rulings have been based mostly, or entirely, on procedural grounds, not merit—which means they haven’t considered the evidence. Some of the courts have been controlled by partisan Democrats. And a court may be an imperfect forum for discovering the truth of election fraud claims in the time allowed. And, we should always remember, even Abraham Lincoln expressed concern about a free people being ruled by the Supreme Court.

And so we find ourselves with a large segment of the population convinced, with justification, that the election was stolen. And yet the FBI and Justice are acting deaf, dumb, and blind, and the courts have apparently decided that the Constitution is optional when it comes to Trump.

There’s one last chance to right the election wrong before things go far enough to get ugly. Congress could intervene, throwing the election of the President into the House of Representatives, where Trump might win, and of the vice president to the Senate, where Pence might win.

Twelve senators and perhaps as many as 140 representatives plan to challenge the electoral votes during the January 6 joint session of Congress. But if the effort fails, what happens next? Revolution?

Millions of Americans might well approve of … some effort to demonstrate their outrage. For the last four years, they have suffered through what it seems fair to describe as an attempted coup mounted by corrupt deep state officials at the FBI, Department of Justice, Department of State, Department of Defense, and the intelligence agencies, among others, together with eager congressional accomplices. That crowd promoted the Russia-collusion hoax and, when that ploy failed to remove the president, the impeachment hoax—all of it supported by a dishonest, left-wing, woke media.

Who among the lefties would have the standing to complain about Republicans engaging in their own, let’s call it civil disobedience—or to put it less euphemistically, massive civil unrest? Those who manage “sanctuary cities” and their supporters? They are perfectly happy to flout the nation’s laws and protect illegal immigrants. Those who refused to stop or condemn the BLMing chaos last spring and summer following the death of George Floyd? People killed. Businesses destroyed. Billions of dollars lost. Those people like violence.

How could they reasonably object to any expedient the nation’s disenfranchised voters think up—such as a little martial law, perhaps? We The People Convention, a non-profit Tea Party-affiliated organization based in Ohio, has published a petition calling for just that—a very partial martial law in order to supervise a re-do election and make sure it’s conducted fairly this time. The most prominent person to join them so far is General Michael Flynn, which is not surprising given how he was mauled by the “intelligence” agencies, the deep state, and the Democrats—when they were out of (official) power.

Even a limited martial law lasting only a short period of time might seem un-American to most people—other than students of Abraham Lincoln’s actions during the Civil War—but they should contemplate what the Democrats have in store for us. Senate majority leader Charles Schumer (D-NY) has already issued the call to arms: “Now we take Georgia, then we change America!” Republicans are right to worry about what that means.

Trump voters and Republicans in general aren’t usually of the activist, disgruntled type that normally takes to the streets. Their few demonstrations are made up largely of middle-aged, middle-class citizens who hold down steady jobs and start small, sometimes large, businesses. They believe in the rule of law and treat the police with deference and respect. There are no hoods. No baseball bats. No “commercial grade firecrackers,” no broken windows or broken heads; no looting or attempts to seal the doors of a police precinct and burn people alive, as happened in Seattle. For all the talk of “right-wing violence,” when the media reported on November 4 that Trump had lost, all the plywood boarding came down. Apparently, it wasn’t marauding Trump voters the shopkeepers were worried about.

But all the Deep State operatives, election officials, editors, columnists, and talking heads who think they can disenfranchise a large segment of the American people, and all the judges and lawyers and professors who think the usual legal mumbo jumbo will convince the American people simply to accept this patently corrupt election and return to business as usual, are playing with fire—and playing loose with American history.

There are different types of revolution. The American Revolution was led and fought by shopkeepers, small businessmen, and farmers, a demographic not dissimilar to modern-day Trump voters. Here’s the tragedy: much as everyone may deploy the thought, a revolution seems not out of the question. Perhaps, but only perhaps, not this week, or this month.

But a feeling of contempt for the political class is likely to grow, as well as contempt for US institutions and the rule of law. If violence does come in the future it may be triggered by some seemingly new or separate event. But in reality, it will be a direct result of a large portion of the country’s being disenfranchised, disrespected, and having their small businesses closed down, while the oligarchs got filthy rich, and congressional staffers, whose salaries were been paid in full and on time, got the vaccine before the taxpayers.

If Republicans lose both Senate seats in the coming Georgia election, this much seems certain: a revolution we will have. The only questions are, which one will it be? And when?


January 5, 2021