The Conservatives Out to Stop the New Bipartisan Antitrust Movement

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Last spring, as the pandemic was taking hold, Ashley Baker, a 32-year-old conservative policy advocate, noticed a trend that alarmed her: A growing number of Republican elected officials were starting to join Democrats in attacking corporate monopolies. Missouri Senator Josh Hawley had introduced several bills to crack down on Big Tech, and more GOP legislators were showing an interest in doing the same. Texas Senator Ted Cruz had argued that “Big Tech is out of control” and posed a threat to the future of American democracy. Colorado Representative Ken Buck, ranking member of the House Antitrust Committee and a former member of the Tea Party, had started floating the idea of creating new regulations for oligopolistic corporations. “I was one of those people that believed that the market could correct itself,” Buck said, “until I saw the cheating.”

At the same time, then President Donald Trump was flailing. His botched response to the coronavirus outbreak was clear, and his approval ratings hit new lows. There was newfound reason to believe that Joe Biden could clinch the White House, and an emerging bipartisan consensus—or something resembling it—on antitrust meant that it could be one of the few areas where the status quo was truly at risk.

That’s when Baker, the director of public policy at the Committee for Justice, an outfit that advocates for conservative judicial nominees, had an idea: to create a new organization dedicated to pushing a pro-monopoly line on Republicans. Baker aimed for this new group, which would be dubbed the Alliance on Antitrust, to align conservatives on the narrow and limited view of antitrust that Robert Bork popularized in the 1970s, called the “consumer welfare standard.” The late jurist and Yale Law School professor’s argument was that antitrust law was meant strictly to protect consumers from higher prices. Monopolies, he argued, often created efficiencies that led to lower prices and, therefore, should generally not be toppled. Both parties largely accepted the Bork line until a few years ago, when Democrats—only a few at first, like Senator Elizabeth Warren, but eventually most—broke from it. As Republicans also started voicing a desire to rein in monopolies, Baker realized that there needed to be an infrastructure that would convince them that monopolies are really not that bad.

“My starting thought was to pull together people who are like-minded on this issue, who I have worked with in some capacity, to come together to try to do something about it, lay down what the conservative position is—that this is what the conservative position on this issue has been for 40 years,” she told me in a recent interview.

The “like-minded people” who formed the new alliance are a who’s who of Washington’s longtime conservative and libertarian policy activists. They include Grover Norquist of Americans for Tax Reform, Douglas Holtz-Eakin of the American Action Forum, and David Williams of the Taxpayers Protection Alliance. In addition, Baker pulled together the heads of a number of other influential groups on the right, like FreedomWorks, Libertas, the Goldwater Institute, the American Conservative Union, and more.

Notably, none of these groups had ever before focused much on antitrust, training their energies instead on reducing corporate and personal income tax rates, cutting regulations, and promoting conservative jurists. What they have in common is a keen understanding of the mechanics of Washington governance and influence, a shared history of successfully advancing pro-corporate policies within the GOP coalition, and a sudden sense of vulnerability as Republican lawmakers and their constituents increasingly abandon those policies in favor of right-wing populist attacks on “woke” corporate behavior, including the perceived anti-conservative biases of tech monopolies.

Baker created the Alliance on Antitrust, a program of the Committee for Justice, to engage in the rough-and-tumble of persuading these elected officials to return to that traditionally conservative—that is, pro-monopoly—view of antitrust. She runs the Alliance’s day-to-day operations almost completely on her own: organizing monthly meetings with her members and recruiting them to sign on to letters when they think Capitol Hill lawmakers are weighing an idea that they consider outré.

The launch of the Alliance was deliberately timed for last July, when the CEOs of Amazon, Apple, Google, and Facebook testified before Congress. It was just four months before the 2020 election, and partisan tensions were, predictably, high. Yet at those hearings, held by the House antitrust subcommittee, both Democrats and Republicans excoriated Big Tech, albeit for different reasons. Democrat David Cicilline, chairman of the subcommittee, called Google the “gateway to the internet” that had too much monopoly power. Republican Jim Jordan accused the companies of being “out to get conservatives” by censoring right-wing voices, despite there being little evidence at the time to support that claim. Facebook, of course, has been a hotbed of right-wing misinformation, while YouTube algorithms have helped lure users to far-right extremist channels. Those differences aside, members from both sides showed a willingness—indeed, in some cases, an eagerness—to use antitrust enforcement to combat the monopolist corporations that have gained a precarious level of market power as the American economy has become more concentrated than at any other time since the Gilded Age.

That’s when the Alliance on Antitrust sprang into action, putting out a series of statements in conservative media warning Republicans against the idea. One of the Alliance’s members, Josh Withrow, then of FreedomWorks, for example, told The Washington Times that expanding the scope of antitrust enforcement to take on Big Tech would open a “Pandora’s box that could have dire consequences throughout our economy.” The group also sent a letter to the House antitrust subcommittee making a similar point, arguing that the “economic consequences of many of the recent proposals,” such as creating more stringent merger prohibitions, would “make the American economy and consumers substantially worse off across a wide array of industries.”

As it happens, this professed concern—that cracking down on tech monopolies would punish other industries—aligns with the interests that fund the Alliance and its member organizations. Most of these groups receive financial support from Big Tech—including the Committee for Justice, which gets donations from Google, according to the tech company’s political engagement disclosures—but also from monopolistic corporations in other sectors such as oil and gas, Big Ag, telecom, banking, and pharmaceuticals. These corporations will themselves soon face antitrust enforcement—and potentially major reductions in profits—if something isn’t done now to stop Congress from creating new and stricter laws against companies amassing too much market power.

The emergence of this new conservative antitrust infrastructure owes much to the success of a rival progressive antitrust infrastructure that began a few years earlier, according to Republican insiders. “The organizations and institutions on the left have been very successful at persuading politicians on the left that it’s a winner to go here,” says Joshua Wright, a former federal trade commissioner and a professor at George Mason University’s Antonin Scalia Law School. Anti-monopoly groups like the Open Markets Institute and the American Economic Liberties Project, he told me, “have shown politicians that it’s not just a safe but rewarding place to embrace some of these ideas.” Indeed, when Baker’s Alliance was still just getting started last spring, three Democratic senators, Warren, Cory Booker, and Amy Klobuchar, were campaigning in the presidential primary on legislation they’d sponsored to strengthen antitrust laws and enforcement.

Wright has been especially privy to the sea change that’s been happening on the left. For years, he practically occupied the conservative pro-monopoly space on his own. He wrote a famous, some would say infamous, paper derailing “hipster antitrust”—referring to left-wing activists pushing for a crackdown on corporate concentration. And he has gained a reputation in conservative circles as the de facto expert on the subject, often appearing on panel discussions hosted by the Federalist Society and other right-wing think tanks. National Review once said he was “widely considered his generation’s greatest mind on antitrust law.”

Joshua Wright

Joshua Wright, Executive Director of George Mason University’s Global Antitrust Institute and a former Federal Trade Commissioner (Drew Loughlin).

Wright’s longtime—um—monopoly on conservative pro-monopoly policy work was due largely to the fact that, for decades, antitrust simply wasn’t a live political issue in Washington. The only real action was at regulatory agencies and the courts, where corporations had to go to gain approval for mergers and acquisitions. Wright is a master of this inside game. At George Mason he runs the law school’s Global Antitrust Institute, which, he told me, specializes in “training judges and antitrust practitioners.” The institute receives major funding from tech behemoths like Google and Amazon as well as the wireless giant Qualcomm. Wright also works as a paid consultant to such companies, like Google, charging, according to ProPublica, more than $500 an hour advising them on how to get mergers approved before the Federal Trade Commission, where he spent several years as a commissioner. Most recently, as the Tech Transparency Project, a research initiative of the watchdog Campaign for Public Accountability, discovered, the FTC’s inspector general reported that Wright improperly lobbied the agency on behalf of Qualcomm. Trump’s Justice Department decided not to prosecute him on those charges; Wright was chosen to lead Trump’s transition on antitrust policy in 2016. The 44-year-old former commissioner told me he did nothing wrong: “My side of the story is that the Department of Justice read the FTC’s inspector general’s report and dismissed and declined to prosecute based on the evidence. Simple as that.”

But now that antitrust has become a major political issue, the inside game is no longer sufficient to protect the interests of corporate oligarchs. Hence the need—which Ashley Baker grasped—for a more public advocacy campaign to keep Republicans from joining the anti-monopoly team. The Alliance on Antitrust “has done a fantastic job of bringing in a lot of disparate groups that are interested in antitrust values and pulling them together with these different perspectives,” Wright said. “Progressives have done a better job retailing their ideas while conservatives watch.”

Others on the right have also seen the need to preach the old faith with more gusto. While Baker was creating the Alliance, Robert Bork Jr., son of the late jurist, established the Bork Foundation to promote his father’s philosophy, with a special focus on antitrust. One of the foundation’s first acts was to republish Bork’s influential 1978 tome, The Antitrust Paradox, which has been out of print for decades.

The concern Baker, Wright, and other pro-monopoly advocates have is that conservative anger at social media giants will make antitrust enforcement look appealing, but if those standards are imposed across every sector, it will change the American economy as we know it. “Where the rubber hits the road is the minute you get some of these regulatory proposals actually written down on paper—the burdens on mergers legislation will enter, you’re going to rein in certain types of conduct,” a GOP source told me on background. “On the right, they would like to target some of this stuff at tech, right? But the second you go after commerce generally, you hit supermarkets and you hit Caterpillar and you hit Pharma and you hit sort of everybody.”

That argument may be the one that resonates most with Republican elected officials, who, on the one hand, may be open to the idea of supporting antitrust reform but, on the other, know which corporate donors have long been most generous to the party. According to data from the Center for Responsive Politics, the Koch family is a donor to some of the groups in the Alliance on Antitrust through the Charles G. Koch Charitable Foundation. They also distribute funds widely among the Republican Party apparatus, such as the Republican National Committee, various conservative think tanks including the Heritage Foundation and the American Enterprise Institute, and scores of individual candidates. If the Koch family, for instance, sends the clear message that corporate crackdowns will have reverberations beyond Big Tech, many GOP lawmakers will certainly pay attention.

Those same elected officials, however, are also acutely aware of the swelling tide of populist anger on the right at big companies. That anger has recently reached tsunami-like proportions after major corporations sided with Democrats in opposing state-level Republican efforts to restrict voting rights and after Facebook extended its ban on Donald Trump. The former president not only still controls the party but is also now one of its loudest anti-monopoly voices—even though his administration signed off on tech mergers between AT&T and Time Warner as well as T-Mobile and Sprint.

Despite this pressure, longtime conservative economic influencers I spoke with express faith in Baker, whom they see as a shrewd policy advocate who can shape GOP opinion on antitrust. “She has really been the leader who has put this all together and has built a new architecture for us to make sure that people really understand the value of the consumer welfare standard and what’s at stake if we abandon a principle that has served us so well for so many years,” said Thomas Schatz, president of Citizens Against Government Waste and a member of the Alliance on Antitrust, referring to the Borkian maxim that antitrust is about prices and not power.

In a way, Baker already has a leg up. As Washington policy activists know well, the hardest thing to do in this town is to get lawmakers to embrace novel ideas. The status quo is the status quo for a reason—the deeper a policy or approach gets into the government’s muscle memory, the harder it is to eviscerate. It’s much easier to stop something from happening, especially when the power of corporate money gets involved.

Still, Baker has her work cut out for her. Rage at Big Tech and major corporations is what animates the GOP base at the moment—and the über-powerful corporations that once held the most sway are losing their potency. Thwarting enthusiasm for renewing antitrust may have been easy when it was just the left pushing for the idea. It will be far tougher now that both sides share the same alacrity for ridding these companies of their enormous market power.

In many ways, the battle over antitrust policy is now a test of how much mojo the pro-corporate wing of the Republican Party still has—and Baker is calling every available voice and operative to the ramparts. “I think it’s fair to say,” Wright told me, “that the space was much lonelier a year or two ago than it is now.”

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