Chris Sagers suggests that something significant could be happening in antitrust, though it probably remains academic for now, and it is hidden behind political messaging that in recent times has gotten most of the attention. He argues that the populist or politicizing talk of antitrust leaders during both the present administration and the last one has grown more detached from real-world administration. But he argues that there may be real change going on behind the scenes, as expressed in positions among some conservatives and Republican office-holders. He argues that the libertarian orthodoxy of the Chicago School no longer defines “conservative” antitrust, and that the range of plausible disagreement may genuinely be changing.
This article is part of a symposium that explores the meaning and future of a conservative antitrust based on the writings and policies of the antitrust enforcers in the second Trump administration. You can read the contributions from Rebecca Haw Allensworth, Thomas Lambert, Gus Hurwitz, Christopher Sagers, and Aviv Nevo as they are published here.
I was asked in late spring whether “conservative antitrust” promises anything new. At the time, the question seemed to be whether the eye-catching signals that followed President Donald Trump’s initial antitrust appointments meant that conservatives would finally file antitrust charges against culture-war targets. That would seem very regrettable and a poor use of the law. But it also seemed regrettable as the flip side of a kind of political messaging that accompanied the Biden administration. Some very vocal publicists who had influence in the Biden years also made some promises that seemed unlikely and indeed were not delivered. The two administrations and the things they proposed were different in their many ways, but they shared a willingness to propose dramatic things that they probably wouldn’t do. It seemed like another step toward symbolic tit-for-tat entirely replacing honest policy discussion. That was a bleak feeling, and if Washington’s antitrust spectacle had been feeling like an off-Broadway theatrical production, it mirrored larger phenomena. It reflected the big picture of our democracy’s problems, and that seemed more important than antitrust theatrics.
Well, in another reflection of current political life, this all changed at whipsaw speed. I had to revise what I would say. First, a conflict within the Trump Justice Department exposed enforcement politics to a degree to which we’re not often privy, when a senior official alleged with rare candor that he’d been fired for opposing political meddling in merger review. It was a reminder of something that should have been obvious. Antitrust enforcement is a big enterprise with many moving parts, and it’s probably a mistake to reify it into one “conservative” or “liberal” policy. Likewise remarkable were certain public position statements from some conservative leaders, implying a willingness to reinvigorate antitrust that for various reasons don’t sound like just talk. Some—Republican office holders, no less—have started saying things that no well-placed conservative has said in living memory. That implies a change that might be real. For fifty years or more antitrust debate was an almost exclusively bilateral exchange between the dominant libertarian orthodoxy of the Chicago school and a mostly moderate opposition, joined only recently by a left-populism. That no longer seems true.
Speculation is risky, but the events of this year suggest a certain interpretation of our antitrust moment. I expect there will be plenty of attention-getting political messaging, but the real policy will remain the tepid compromise often described as “consensus” enforcement, which has been stable across different administrations for a long time. History suggests that during the second Trump administration it will be accompanied by some periphery of essentially stunt-like political moves, but most of them will not result in lawsuits.
But the interesting change is the moving poles of the debate. The range of plausible disagreement seems to be shifting, and the extravagant assumptions of Chicago orthodoxy seem increasingly abandoned. That’s the most hopeful note I will sound. The debate is changing, even if it will remain academic for some time and maybe forever. It gives me some hope.
Conservative populism, or, irony is so dead that saying irony is dead is dead
One question preoccupies many, and it is what I first assumed I would be writing about: whether we’d see long-promised antitrust suits against conservative bogeymen, like censorship by powerful social media firms. Anything is possible, but I don’t think we will, for the same reasons that the last administration didn’t do the things that its most vocal publicists said it would do.
Some antitrust leaders in the new administration have most definitely appealed to their party’s base. Almost uniquely among them, Federal Trade Commission Chair Andrew Ferguson began his term with eye-catching statements against diversity programs and swipes at the American Bar Association and other groups perceived to be too liberal. Among his early enforcement proposals was to attack censorship of conservative ideas, and as a first formal act he introduced a public inquiry into it. Rather more alarmingly, the FTC opened an investigation of the liberal activist group Media Matters, in parallel with a private action by Elon Musk’s X platform against a coalition of advertisers. Ferguson is hardly alone, however. His rhetoric follows that of other conservatives of the past decade or so, like Senator Josh Hawley and many others, including Trump.
It’s been a while since mere English adjectives could capture the irony of this kind of thing. At a presentation on his plans for viewpoint diversity, Ferguson said, with a chuckle to emphasize his own understatement, “I do generally think the government should not threaten private people with punishment because of things they are saying” (video here, at 32:10). Within just a few months, Trump’s FCC Chair threatened the ABC broadcasting network with legal action for Jimmy Kimmel’s opinions on the assassination of Charlie Kirk, threats that the president himself then amplified.
The irony only begins there. This particular call for antitrust vigor comes from a movement that for fifty years opposed virtually every antitrust action and still lionizes judges who’ve written outright love songs to monopoly (e.g., “[M]onopoly power . . . is not only not unlawful; it is an important element of the free-market system”). A theme in that long campaign was to criticize particular cases because they were not what antitrust is “about.” The law’s concern should be consumer welfare, conservatives said, so it shouldn’t be used for extraneous ideological projects, like protecting small business or forestalling the political influence of concentrated wealth. Well, using antitrust to protect conservative opinion seems not exactly at the core of allocational efficiency either. At length, some conservatives have called for antitrust only when monopolies created under the lax enforcement that they demanded have come to threaten their own self-interest. Add to all that that a movement that’s ridden a cowboy horse of liberty for fifty years is now asking for things like antitrust as a government speech regulator. It is simply inane.
To be clear, these demonstrations seem broadly similar to the agitation of many left populists, some of whom purported to speak for the Biden administration. There were some who called for lawsuits against exotic policy targets like racial or sex disparities or climate change. Some who would either serve in or influence the Biden agencies promised revolutions in theory and legal doctrine, sometimes predicated on claims that to any competent antitrust lawyer were laughably false, and claimed that the administration would dramatically strengthen enforcement and dispense with their predecessors’ laxity. Some apparently still claim to have delivered revolutionary results. But those promises were not delivered. For example, the rate of merger activity in the economy increased significantly during the Biden years even while merger enforcement went down. On some measures enforcement hit its lowest pace in over twenty years. Even the marquee Big Tech cases were not the fruit of progressive revolution. Aside from the fact that no fewer than three of them were filed during the first Trump administration, they are all thoroughly traditional in theory and reasoning (as nicely explained here). I’m hardly alone in making these points, and others who share the progressives’ broad goals have shown how little there was of revolution and how making implausible promises may do more harm than good.
Anyway, the point of attacking this rhetoric on both left and right is not that their ideas have no plausibility. All of them, on both sides, make some sense in the abstract. But they seem so unlikely to persuade our judiciary that agitation for them as real-world policy programs feels ingenuine. They seem like predictable steps in the progress of sound and fury, and not like honest administration of the law.
I think law enforcers have not always done what our antitrust leaders have been doing lately, even if they have always exaggerated in enforcement forecasts and retrospectives. Our age of performative display dates as far back as the 1980s, when officials of both parties began releasing new policy guidelines, often fairly strident and often toward the ends of their terms, only for the other party to take office and rip them up at press conferences. Talk being cheap and substantive policy costly, neither party typically followed those displays with meaningful change. President Bill Clinton’s first assistant attorney general did that with President George H. W. Bush’s Vertical Restraints Guidelines, and then brought very little vertical enforcement, and President Barack Obama’s first assistant attorney general did the same with the second President George Bush’ Section Two Report. The pageantry has gotten so common that earlier this year people were surprised when the Trump leadership chose not to throw out the Biden administration’s revised Merger Guidelines. Not that long ago a stunt rescinding the Merger Guidelines, the nigh-sacred symbol of bi-partisan consensus, would have been unthinkable.
This sort of thing is mostly for show, and I don’t think we’ll see the worst of what’s been suggested by current leadership. The cases that conservative populists propose usually have some abstract legal plausibility, but they face serious problems and are unlikely to succeed. There may well be some heavy-handed posturing short of actual litigation, as there was in the first Trump administration. That included abuse of the Hart–Scott–Rodino process to hassle marijuana companies and saber-rattling against the cooperation of auto makers with the California air pollution regulator. Those cases seem to be in the same category as the current FTC’s scuffle with Media Matters—abuses of process to shake down opponents and perhaps bring them to heel. That all seems very bad and is justly criticized, but it also seems to have been a relatively small part of actual enforcement, and in any event it seems unlikely to generate actual lawsuits. For the time being, the Media Matters case has been enjoined for First Amendment violation, and other cases that some have called for would face similar problems. Generally speaking, you don’t bring cases that you cannot win.
So, while some hot-headed rhetoric has surrounded antitrust for a while, it has not made much difference, and I’d guess that will stay true even if Washington talk grows wilder and more Manichean.
Saying things like this has come to feel like breaking up a fight among children who can’t remember who started it. Maybe the theatrics are a symptom of an age in which for no earthly reason our people are very angry at each other. We’ve forgotten that almost all of us share almost the same ideological DNA and believe that our differences over a sliver of issues are more important than a shared prosperity and security greater than that of any society in history. A curse on those who’ve manufactured this situation.
Something new, if only in the ivory tower
And yet with all that there still is the hint of something new. While I think it is likely to remain intellectual for now, and may never really impact real-world administration, that is not to say it is unimportant. I think the debate might change.
A few things have happened that are basically extraordinary. The first was publication by FTC Commissioner Mark Meador of a long philosophical meditation called Antitrust Policy for the Conservative. It does not break new ground intellectually, though it is very thorough and well written. What makes it extraordinary is that for the first time in living memory a Republican office holder said it all. Meador takes all the following positions:
(i) false negatives are more damaging than false positives;
(ii) “consumer surplus” or “trading partner surplus” as conceived in Robert Lande’s famous paper is the goal, rather than total welfare;
(iii) we should preserve the rule against out-of-market efficiencies;
(iv) the libertarian distinction between public and private power should be ignored (a distinction for which Meador has unusually harsh words); and
(v) the common-law delegation thesis is not only a mistake but a dishonest and inappropriate one, by which a Congress that consistently tried to expand the law has been thwarted by the Supreme Court’s reactionary activism.
In saying all this and more, he joins fellow travelers who’ve acknowledged how ideological the Chicago movement really was, despite its claims to scientific objectivity, and how overstated and dangerous were some of its claims.
A second event was the internal Trump administration scandal I mentioned above, involving political influence in merger review. The fracas led to firings of two top Antitrust Division leaders, one of whom—Roger Alford, a Notre Dame law professor who for a time was principal deputy in the Antitrust Division—has since publicly spoken of the affair with arresting candor. Alford accused specific lobbyists and administration officials of improper action. What seems important is less that the scandal occurred, and more that Alford spoke of the vision for antitrust that had been defeated by the influence scam he attacked. That vision openly rejects Chicago orthodoxy in terms like Meador’s.
An obvious counterpoint would be to ask why I think that this bunch of talk is any more important than the other bunch of talk that I’ve criticized as political messaging detached from real policy. The differences are several and real. Unlike calls to punish partisan political targets or drastically exaggerated enforcement promises, Meador and Alford engage with commitments held by the courts—the only antitrust institution that matters. Antitrust exists as it now does because the courts internalize the fear of false positives and other commitments of Chicago orthodoxy. Perhaps the law will change if they are persuaded by a pan-partisan change of opinion that false negatives matter more. Our courts unfortunately seem polarized along partisan lines, but that is the more reason to expect them to heed a new sympathy among Republican officials for views traditionally called liberal. I’m happy for them to call these ideas new and conservative, even if to this liberal they’re familiar, congenial, and old. Some of us may be helped to accept an idea if it seems like it was ours in the first place.
It is too soon to say how real or significant the change may be. It’s certainly possible that Meador’s paper and Alford’s speech are themselves theater of a kind. Alford and Meador are probably are also a small minority in their faction; while there is similar language in other recent policy statements, most are written in the Washington style of word-salad abstraction impossible to interpret in practical enforcement terms. And too, the world of conservative economic thought right now is a heady and changing mix of alignments that is hard to interpret or forecast. Of all things, one prominent contributor is turning heads with a “conservative” call to re-establish a social democracy on the model of the New Deal.
But in a way, that last point is the most promising, and the best reason to believe that something is actually happening. Things seem to change in our intellectual world when encrusted commitments and relationships get knocked loose, and go through realignment. On both the right and left, commitments and relationships are shifting and there is a more pervasive sense that our traditional ideas about antitrust theory and practice are failing to answer the demands of our time. How things shake out is nearly as unpredictable as the policy of the current administration, and there is no promise that any new alignments will be to society’s benefit. But the opportunity is there for a paradigm shift in both conservative antitrust and antitrust as a whole.
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Articles represent the opinions of their writers, not necessarily those of the University of Chicago, the Booth School of Business, or its faculty.
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