Yunsieg P. Kim argues that economic regulation, including antitrust, can only be democratic if it is the choice of well-informed citizens.
This article is part of a symposium that explores the relationship between democracy and antitrust. In theory, Congress passes laws, the antitrust agencies implement them through rules and policies, and the courts assure these rules and policies accord with the relevant statutes and Constitution. In practice, Congress is catatonic, the agencies are commonly left to reinterpret the means and ends implied in decades old laws and apply them to an entirely different world, and the courts have historically shown their own willingness to interpret and reinterpret the meaning of the laws, belying the impression that there is always an obvious and objective singular understanding and application of the antitrust laws. Can the agencies make the case for reinterpretation by testing the limits of their rulemaking? Is that bad enforcement or a legitimate form of governance that acknowledges that the creation of new rules and interpretation of old laws are a messy and tortuous process? Often lost in all of this is a meaningful connection between policy and public opinion. Is there a legitimate place for more direct public engagement with antitrust, and what would that look like? Commentators often pit the desires of the public against the expertise of the government bureaucracy. What is the role—and democratic limit—of bureaucrats in setting the antitrust agenda and its goals? You can read the symposium articles from Barak Orbach, Sean Sullivan, Erik Peinert, Yunsieg Kim, and Reed Showalter as they are published here.
An informed electorate is the prerequisite to a genuine democracy. Any polity can hold elections, but repeating that ritual once every few years does not mean that the people control their own destiny. The difference is between merely casting a ballot and understanding what is on the ballot, only the latter of which enables voters to choose what they really want—what they want, not what some politician or bureaucrat tells them they want. We have known what harm uninformed voters are capable of inflicting upon themselves for thousands of years, as illustrated by Plutarch’s account of how the ancient Greek politician Aristides was banished from Athens by a vote of the people:
[A]s the voters were inscribing their [ballots], it is said that an unlettered and boorish fellow handed his [ballot] to Aristides, whom he took to be one of the ordinary crowd, and asked him to write Aristides on it. [Aristides,] astonished, asked the man what possible wrong Aristides had done him. “None whatever,” was the answer[.] “I don’t even know the fellow, but I am tired of hearing him everywhere called ‘The Just.’” On hearing this, Aristides made no answer, but wrote his name on the [ballot] and handed it back. Finally, as he was departing the city, he lifted his hands to heaven and prayed . . . that no crisis might overtake the Athenians which should compel the people to remember Aristides.
Of course, precisely such a crisis did occur merely three years after Aristides had been banished, in the form of an invasion by the Persian Empire.
Given the importance of an informed electorate to a genuine democracy, it is strange that many prevailing schools of thought on how to democratize a body of law dominating the public discourse should overlook the need to inform the public. The first of such camps is what I call the ochlocrats. The ochlocrats may seem to adhere to the letter of democracy, in that their slogan appears to be “vox populi, vox dei”: the voice of the people is the voice of God and, therefore, should not be questioned. Reasonable people could debate (and have debated) the view that democratic representatives should serve solely as an aggregator and vessel for the people’s will. Edmund Burke, as Member of Parliament for Bristol, famously told his own constituents that “[y]our representative owes you, not his industry only, but [also] his judgment; and he betrays, instead of serving you, if he sacrifices it to your opinion”—in other words, that a democratic representative is not merely a delegate, but a trustee. The people of Bristol, just as famously, removed Burke from office in the following general election.
Regardless of the validity of “vox populi, vox dei,” it is not what the ochlocrats actually practice. Ochlocrats manipulate the electorate into wanting things which the ochlocrats themselves know would be detrimental to the electorate but beneficial to the ochlocrats themselves. Take, for example, the 10 Percent Credit Card Interest Rate Cap Act introduced in the United States House of Representatives on March 6, 2025. The bill, true to the name, states that “[t]he annual percentage rate applicable to . . . [the] use of a credit card may not exceed 10 percentage points, inclusive of all finance charges,” for the stated reason that “[c]redit cards with high interest rates regularly trap working people in endless cycles of debt.” It is easy to see why this line of argumentation would resonate with many consumers, as major banks have proven themselves guilty of brazen and destructive greed quite recently. In the run-up to the 2008-09 housing and financial crisis, “[u]nderwriting banks facilitated wide-scale mortgage fraud by knowingly misreporting key loan characteristics underlying mortgage-backed securities.” The same lenders have aggressively marketed loans that many scholars have characterized as predatory, such as “buy now, pay later” arrangements.
Nevertheless, it is unlikely for all four members of Congress of both major parties who co-sponsored this bill—Representatives Alexandria Ocasio-Cortez and Anna Paulina Luna who co-sponsored the House bill, and Senators Bernie Sanders and Josh Hawley who co-sponsored its Senate companion bill—to not know that “[c]redit card interest rates can fluctuate with an individual’s credit score, but they are ultimately determined by market conditions.” That is, interest rates are determined primarily by a borrower’s perceived willingness and ability to repay the loan. Given the wide variation in individuals’ willingness and ability to repay, it is simply not possible to apply the same 10 percent interest rate cap to everyone—particularly on unsecured, revolving loans such as credit card debt—without eliminating credit cards for most consumers or putting credit card companies out of business. Such an outcome would harm the very consumers the ochlocrats claim to want to protect, as credit cards are a form of “social provision” that, for better or worse, low-income consumers have come to rely heavily upon. In other words, it is highly unlikely that all four members of Congress genuinely believe their proposal to be feasible or even desirable.
Yet, this impossible and detrimental proposal is sold to voters by framing interest rates as a tool that exists to allow “big banks to shake down our communities for profit,” as Ocasio-Cortez claims, likely because it is what voters want to hear. According to one poll, “[m]ore than 3 in 4 cardholders back a credit card rate cap.” One might indeed win reelection by selling constituents pipe dreams and then claiming to be merely enacting the will of the people. But that is not representative democracy, in the sense that it is not governing on behalf of the people in their genuine interest. Rather, it is ruling over the people under false pretenses by keeping them uninformed. In this way, politicians who sell a policy because they stand to benefit from it, not because they truly believe in it, are “representatives” in a purely Downsian sense. As the political scientist Anthony Downs described politicians in the context of his economic model of elections, “their only goal is to reap the rewards of holding office, per se. They treat policies purely as a means to the attainment of their private ends, which they can reach only by being elected.”
A second group, which I call the technocrats, are similar to the ochlocrats in that they also pay lip service to democracy without showing interest in its prerequisite of informing the electorate. This technocratic tendency is perhaps most apparent in the contemporary debate over democratizing antitrust policy, which largely stems from dissatisfaction with the consumer welfare standard. Under that standard, democracy was not a goal of antitrust policy in any affirmative sense. At most, it served as a negative check, in that antitrust law was designed to prevent undemocratic abuses in the name of democracy. As Robert Bork observed, “[e]conomics may be a science best confined to analysis and shunning the normative,” whereas “[l]awyers are properly concerned, not merely with the ways legal institutions behave in fact, but [also] . . . how they ought to behave” according to normative ideals. Accordingly, Bork contended that “an exclusive adherence to a consumer welfare test is the only legitimate policy for the Supreme Court . . . precisely because of the Court’s elitist, unrepresentative nature.”
A school of antitrust thought called Neo-Brandeisianism, in its opposition to the consumer welfare standard, exhibits tendencies characteristic of the group I refer to as the technocrats. Neo-Brandeisianism contends not only that the consumer welfare standard falls short in protecting democracy, but also that the standard actively undermines it—thus precipitating the current debate on democratizing antitrust. Lina Khan, the former Chair of the Federal Trade Commission “credited with the modern revival of the Brandeisian antitrust movement,” argues that “[t]he sweeping market power problem we confront today is a result of the current antitrust framework.” Such market power, she contends, “grants outsized control to a few, subjecting the public to unaccountable private power—and thereby threatening democratic order.” Accordingly, Neo-Brandeisians argue for policies such as laws that “grant competitors equal and fair access to essential infrastructure for commerce,” with the belief that when it comes to platforms maintained by, for example, Google, Amazon, and Meta, “dominant market position arguably elevates internal management failures and architectural flaws to systemic threats for democratic deliberation and the electoral process.”
Despite Neo-Brandeisians’ professed intent to “enhanc[e] individual autonomy” and “strengthen[] democracy,” existing works have shown that “Neo-Brandeisianism is . . . ‘a policy at war with itself.’” As Thom Lambert and Tate Cooper have explained, Neo-Brandeisianism’s “main reform proposals would empower three unelected and difficult-to-remove bureaucrats to write conduct rules covering virtually all business behaviors throughout the entire economy to prevent outcomes those bureaucrats deem to be unfair.” Given that the people’s preferences do not visibly affect any part of this process, Neo-Brandeisianism makes no mention of the need to inform consumers or voters so they can make better decisions. Unsurprisingly, “[f]ar from enhancing individual autonomy in the face of concentrated power, such an approach would itself centralize power in a small cadre of politically unaccountable state actors.” However, existing critiques of Neo-Brandeisianism predominantly advocate for a return to the people-proof consumer welfare standard, rather than for making antitrust policy and tech regulation more “democratic” in any affirmative sense.
At this point, I return to the question posed by the title of this work: how can antitrust law or any other economic regulation be made more democratic? Conspicuously absent from the ochlocrats’ professed reverence for the voice of the people, as well as from the technocrats’ sweeping promises to enact the people’s will without having to go through pesky inconveniences such as Congress and the president, is any acknowledgment that the public may first need to be informed on economic issues in order to meaningfully choose the policies they want. We understand the importance of informed consent before medical procedures and the necessity of informing consumers about the products and services they buy so they can vote with their wallets against predatory business practices. Yet, when it comes to democratizing economic regulation, the principle of informed consent is frequently and strangely replaced by appeals to treat public opinion as infallible or to insulate economic policy from the people entirely.
Even commentators who are decidedly not ochlocrats or technocrats, as I have described those camps, tend to neglect that informing the people on economic issues may be a prerequisite to democratizing economic regulation. Daniel Crane has pointed out that “the political elite seem to agree that there is a strong connection between antitrust and democracy but stake widely different claims about what . . . [is] necessary to accomplish it,” and that “keeping open channels of political discourse and participation, such as news media or online platforms,” may be one way in which antitrust law “may be particularly important to healthy democratic functioning because they facilitate the communication of news or the interchange of ideas.” Crane argues persuasively that “antitrust has the capacity to promote democracy by preventing the monopolization of information channels without importing political criteria into antitrust decision making.” However, this vision is disconnected from democratizing economic regulation by making it more reflective of the preferences of a genuinely informed public, in the sense that Crane is more concerned with whether “antitrust law [should] explicitly take speech and viewpoint plurality into consideration” so as to prevent “monopolization of information channels.” While preventing Big Tech or government from using the internet as a propaganda machine, for example, may be relevant to economic literacy in an indirect sense, that position does not entail enhancing voters’ economic literacy directly.
If voters became more economically literate, would economic regulation become more “democratic” in the sense that policy would better reflect the electorate’s genuine interests? I argue that it is likely. Take the example of Ocasio-Cortez, one of the four sponsors of the 10 Percent Credit Card Interest Rate Cap Act. In 2019, shortly after beginning her first term, Ocasio-Cortez was “call[ing] for massive social welfare programs like Medicare for All, a federal jobs guarantee and a Green New Deal—all of which would cost trillions of dollars and potentially bust the budget.” Confronted with the question, “How do you plan to pay for it?,” Ocasio-Cortez replied that “ambitious programs can easily be financed through deficit spending,” by “shin[ing] a spotlight on a once-obscure brand of economics known as ‘modern monetary theory’”—the idea that “[i]f Congress has the will, the Federal Reserve can effectively print the money.” A leading proponent of modern monetary theory, Stephanie Kelton, commented that Ocasio-Cortez created “something of an Oprah effect” because “[p]eople immediately probably started Googling ‘modern monetary theory’ to find out what she was referring to.”
Telling voters that everything from jobs and medical insurance to college attendance could be theirs for absolutely free (by simply printing money) might have seemed like a political winner in 2019, when only six percent of Americans cited inflation or the high cost of living as their top financial concern. A year later in 2020, however, “trillions in coronavirus spending” began to “put[] [Ocasio-Cortez’s] favorite economic theory to the test.” By 2022, three years after Ocasio-Cortez created the “Oprah effect” for modern monetary theory, it had “lost (badly) to basic economics”: the iron law that “[w]hen there is a lot of something, it is less valuable. Massively increasing the supply of money in the economy will decrease the value of said money.” In 2022, 32 percent of Americans cited inflation or the high cost of living as their top financial concern, a number that climbed to 41 percent by 2024.
Unsurprisingly, Ocasio-Cortez appears to have stopped publicly discussing modern monetary theory. The reason for the sudden silence regarding modern monetary theory may have become even more obvious in 2024, which showed that inflation can even cost politicians national elections. As David Steinberg, Daniel McDowell, and Erdem Aytaç found, “simply asking people to think about inflation reduced approval of the Biden-Harris administration.” An informed public understanding that an increased money supply leads to inflation clearly illustrates how informing the electorate can make economic regulation more “democratic,” by equipping voters to discern whether a proposed policy truly serves their interests. There are other indications of improving public economic literacy: support for credit card interest rate caps appears to have declined since 2019, when 84 percent of those surveyed backed it, whereas 77 percent of those surveyed backed it in 2024.
None of this is to necessarily suggest that antitrust law in particular should be made more democratic; this article is limited to the issue of how it could be made more democratic. Indeed, there are defensible arguments for insulating complex and high-stakes policy areas like economic regulation from the opinion polls, to the extent that a constitutional republic allows. One reason may be what is likely to be the enormous cost of adequately informing voters on such issues. Much ink has been spilled agonizing over “the challenges of informing people, even on things that they have an interest in knowing,” such as making informed decisions about the products and services they use, and devising intricate systems to make that information as “painless” as possible to access. If it is this challenging to educate people on matters immediately affecting their daily lives, the task of informing them about more removed issues—like the rules governing whether and when one big corporation should be permitted to acquire another big corporation—may be extremely difficult.
However, regardless of whether antitrust law should be made more democratic, one thing can be said about how it could be made more democratic. If someone claims to support democratizing antitrust law but opposes the foundational democratic requirement of informing voters and consumers, whether due to cost or other reasons, they may not genuinely be advocating for democratic antitrust reform. While reasonable people could argue that informing the public about antitrust issues may be impractical, those people cannot simultaneously present themselves as antitrust democrats simply by unconditionally deifying the people’s will or by decreeing what they believe to be the people’s will. Commentators who insist on the label of antitrust democrat while rejecting or ignoring the need to educate the public on specific economic issues, assuming that they do so in good faith, could more accurately be described as Burkean democrats: duly elected representatives entrusted to act according to their own judgment on behalf of the people, rather than as mere conduits of the people’s will. Burkean democrats may be accused of elitism, and they may even be thrown out of office because of that impression, as Edmund Burke was. Nevertheless, they at least could not be accused of both elitism and hypocrisy.
Author Disclosure: The author reports no conflicts of interest. You can read our disclosure policy here.
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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