Before Loper Bright, federal regulatory agencies exercised growing discretion in how they interpreted – and inevitably expanded – statutory powers. This came to be known as Chevron deference, meaning deference to agencies’ interpretation of how to administer the law.

Loper Bright brought that freewheeling era to an end by restricting agency actions to the letter of the law. Now, in what will one day be seen as a conservative own goal, Chairman Carr is quietly restoring the power of the administrative state to boss business around.

This is happening through the FCC’s handling of Nexstar’s acquisition of TEGNA’s network of television stations. By law, no owner can control stations that reach more than 39 percent of American households. The Nexstar-TEGNA deal would create ownership of 265 stations serving about 80 percent of American households.

One can argue that this law is antiquated, given the importance of streaming and other internet-based sources for entertainment and news. But it is still the law. Does that mean anything anymore?

Peter Roff, writing in a syndicated piece:

Instead of enforcing the law, the FCC’s Media Bureau – filled with unelected staffers and with no vote of the full Commission – simply waved it.

That move was unlawful and strategic. Bureau actions are not final Commission decisions, meaning the FCC and Nexstar are trying to dodge meaningful judicial review. If they succeed, Loper Bright will stand for very little. Regulatory agencies won’t have to reinterpret statutes because they’ll be free to ignore them.

One unintended consequence is that the FCC’s move has ensnared Nexstar in a morass of litigation. Roff describes what will be the lasting unintended consequence of the Trump Administration’s regulatory overreach:

Conservatives once warned relentlessly about unelected bureaucrats accumulating unchecked power, regardless of whether or not they were on your side. Loper Bright was supposed to bring an end to that. Instead, the FCC is testing a dangerous new theory: that agencies can sidestep Congress and the courts as long as they move fast enough.

Add to this the willingness of Chairman Carr and Federal Trade Commission Chairman Andrew Ferguson to use their regulatory heft to try to police journalism. Carr held up Paramount’s merger with Skydance Media until the latter paid $16 million to the Trump presidential library project over President Trump’s specious, nuisance lawsuit over how Paramount-owned CBS News edited an interview with Kamala Harris during the campaign. Ferguson is threatening Apple News with regulatory action based on the risible claim that its curation of liberal-leaning news sources is actionable as a consumer violation under that outlet’s terms and conditions.

Not even the Biden Administration, which secretly censored conservative content on social media, dared to claim the authority to publicly regulate journalism and First Amendment activity.

On the economic side, the Trump Administration is busy importing China’s approach to state capitalism, with the government taking large stakes in a number of companies and business deals, from Nvidia’s sale of advanced chips to a “golden share” of U.S. Steel.

And now Carr is renewing agencies’ administrative power – in this case, an outright defiance of the law – undermining the Supreme Court’s rollback of Chevron deference.

When progressives one day return to power, they should be pleased at all the new levers of power that the Trump Administration has installed for them. But for conservatives, it won’t be pretty.

For the remaining tribe of free-market, smaller-government conservatives, the legacy of Teddy Roosevelt elicits conflicting impulses.

As the first progressive president, TR inaugurated the era of the nation’s chief executive as an outsized celebrity. Many of TR’s great achievements—in trust-busting, food inspection, and environmental protection—were necessary, but they opened the way for the growth of the regulatory state. In his last campaign for the presidency, the Bull Moose edition of TR ran more or less as an out-and-out socialist, proposing an early version of a comprehensive industrial policy, with government in charge of prices and most business decisions.

In this, TR was prescient. That version of TR would have fit right in with the Biden era of Tim Wu and Lina Khan.

And yet… TR remains one of the most iconic of Republican presidents. And there was that famous grin… and the cowboy duds… and the charge up San Juan Hill. It’s easy to imagine TR in heaven riding happily on a horse alongside Ronald Reagan. On the other hand, Calvin Coolidge, the most reticent of all presidents, may be a small-government conservative’s idea of virtuous modesty, but no child clings to a doll called a Calvin-bear.

So TR nostalgia will always remain seductive. But when some of the new right use TR as branding for today’s most progressive policies in economics and antitrust, alarm bells should go off for true conservatives.

Case in point is the speech that Federal Trade Commissioner Mark Meador gave last week to the Bull Moose Institute. It was a well-crafted speech, rooted in a strong sense of history. Recounting Roosevelt’s “New Nationalism” speech, Meador harks back to what seems to him to be the timeless principles of antitrust enforcement – a very American sense of wanting to cut large, unaccountable organizations down to size.

What often gets lost in the nostalgia is that the trusts of TR’s day were nothing like any large business today. When historians write of the trusts’ “ruthless” tactics, they often involved criminal and thuggish acts—from bribery to threats to slaughtering men, women, and children in suppressing strikes. Even the business strategies of trusts in those days, from price-fixing to horizontal conspiracies, are acts that would be plainly illegal today.

Still, Meador sees TR as relevant to antitrust today. He said of the 26th president:

He did not oppose the great trusts of his era merely because paid consultants told him that consumer prices would fall if he did so. He opposed them because they acted in ways that corrupted free markets: by replacing competition with coercion, earned success with entrenched privilege, and open markets with corporatism. He drew a line, and the line was legal and moral before it was economic. As he stated, with characteristic directness: ‘[w]e draw the line against misconduct, not against wealth.’

And with these words, Meador takes TR’s sheriff’s badge and pins it on his own chest. But does this approach make sense today? Let me enumerate the flaws of TR antitrust revivalism.

Replacing the Consumer Welfare Standard

Meador implies that big corporations today skate by obvious antitrust violations because “paid consultants” are telling policymakers that the efficient production of large enterprises often means cheaper goods. But it isn’t consultants who are instilling this message. It is federal judges and their Consumer Welfare Standard doctrine, which has been in place for almost half a century, since it was adopted by liberals and conservatives on the U.S. Supreme Court in 1979. And the goal of that standard is not just cheaper goods, but more choices and innovation to the benefit of consumers.

While the Biden regulators jettisoned the Consumer Welfare Standard in their merger guidelines—and the Trump antitrust regulators at the Department of Justice and Federal Trade Commission did nothing to restore it—that standard remains the governing principle of the federal judiciary today.

Without that standard, firmly anchored to the consumer, we would return to arbitrary antitrust in which the whims, biases, and ideology of the regulator and the judge would determine outcomes. This is a recipe for politicized antitrust enforcement and actual censorship, whether it’s Lina Khan going after Twitter, or Trump regulators going after liberal news organizations that offend them.

In harking back to progressive-era antitrust, Mark Meador would abandon antitrust’s only coherent limiting principle.

A Return to “Big Is Bad”

Mark Meador argues that conservatives should embrace aggressive enforcement, with underenforcement as the greater risk. He emphasizes decentralization and automatic suspicion of large firms.

This was the thinking several decades ago that put Walmart in the crosshairs of progressive criticism. But economists countered that they could track a clear “Walmart effect” in declining prices and rising choices for consumers. Today, it is the FTC that is trying to break up Amazon, another action consumers absolutely do not want.

The reason is that large firms often reflect efficiency and economies of scale to the benefit of consumers. Meador’s framework would regress to this “big is bad” doctrine in antitrust, making efficiency potential evidence of a crime.

Undermining the Rule of Reason

The “rule of reason,” popularized in the late 19th century by a federal judge named William Howard Taft, evaluates conduct based on the economic effects of a business practice on competition – and by implication, on consumers. Meador kicked off his tenure with an attack on “fetishized economic analysis” in his essay on “Antitrust Policy for the Conservative.”

It is easy to dismiss “efficiency” as a heartless irrelevancy. But a regulator who governs by what his heart tells him rather than by what the market reveals is like a surgeon who has a great bedside manner, but is incompetent with a scalpel in his hand. A good surgeon may have a poor bedside manner, but he shows fidelity to the patient by being good at his job.

Without the rule of reason, courts lose any way to distinguish procompetitive from anticompetitive conduct. When the sheriff of antitrust acts from intuition and ideology over economics, enforcement becomes political and error-prone.

A Bias Toward More False Positives

In antitrust, a false positive is an act that blocks conduct that would have been beneficial to the economy and the consumer, while a false negative would be a missed antitrust violation.

My father, Robert Bork, famously argued that the errors of overenforcement are far worse because they establish binding legal precedents that stymie innovation across markets. False negatives, on the other hand, may miss a temporary, unfair advantage. But the market has a way of demolishing such advantages much more effectively—and often faster—than the law can.

Remember when Blackberry, Toys “R” Us, and AOL seemed unstoppable?

“Competition is an evolutionary process,” Robert Bork and Ward Bowman wrote in 1965. “Evolution requires the extinction of some species as well as the survival of others. The business equivalent of the dodoes, the dinosaurs, and the great ground sloths are in for a bad time—and they should be. It is fortunate for us all that there was no Federal Biological Commission around when the first small furry mammals appeared and began eating dinosaur eggs. The commission would undoubtedly have perceived a ‘competitive advantage,’ labeled it an ‘unfair method of evolution,’ and stopped the whole process right there.”

The Fatal Vagueness of Moral Framing

America First Antitrust rhetoric is resplendent with rousing phrases like “human flourishing” and the “common good.” To read a speech from Meador or from his former colleague, Justice Department antitrust chief Gail Slater, is to be flooded with the imagery of real Americans buttering their corn and digging into steaks cooked on the backyard grill under an American flag.

The reality of the new right’s TR-inspired adoption is a move away from a very American approach to antitrust and closer to the hyperactive statism of the European Union. America First Antitrust jettisons the anchor of economics and consumer welfare in favor of the progressive ideas of Lina Khan, allowing big government to wield antitrust enforcement as a weapon, rather than as a tool for economic (and thus, social) advancement.

The new right may think it is reviving Roosevelt. In reality, it is reviving the very progressive project conservatives once opposed—replacing markets with mandates, and economics with politics.

A revived TR antitrust policy for the 21st century would mean the replacement of economics with politics, which can only end in tears for conservatives.

TR is a good role model for human achievement. There are better models for policy.

“Don’t expect to build up the weak by tearing down the strong,” said the 30th president of the United States, Calvin Coolidge. “It is more important to kill bad bills than to pass good ones.”

A version of this article also appeared in RealClearMarkets

The news that Columbia University Law School is establishing a new Center for Law and the Economy – to be directed by Biden’s former FTC Chair Lina Khan and includes former Biden economic and legal advisor, Tim Wu – is a new and exciting development in the future of American antitrust enforcement.

The creation of the center, Khan says, responds to “tremendous interest from law students, and the center will help harness that interest and develop the scholarship and expertise needed to advance this work across key areas of economic law and policy.”

To help guide this new center, below is a suggested curriculum to shape the legal philosophy of Columbia Law students – the Lina Khans and Tim Wus of our future.

Structural Inequality Studies: Econ 501 – Why Markets Fail (Especially When They Work)

Many law students arrive clinging to naïve and outdated concepts of the market as “free” – believing that market dominance is usually challenged and corrected by a mythical deity called the Invisible Hand. This course demonstrates how innovation and consumer surplus mask deeper harms such as scale and excessive efficiency, while exploring the corrosive effect of discounting and low prices in promoting inflation.

Econ. 502 – “Small Dealers and Worthy Men”

First, an apology for the title, which harks back to the archaic (and frankly nebulous) word “men.” Yet it derives from a foundational Supreme Court opinion from the late 19^th century that presaged the Center’s Brandeisian ethos. This course will explore why a big company’s size is a marker of late-stage capitalism practically begging for the regulator’s wrecking ball.

Econ. 503 – Taking a Razor to the Rule of Reason

This course explodes the myth of neutral principle in regulatory enforcement. As progressive expert Matthew Stoller put it, “the point of economics as a discipline is to create a language and a methodology for governing that hides political assumptions from the public.” The rest is just math.

Antitrust Redistribution: Law 510 – The Fascistic Roots of the Consumer Welfare Standard

Students learn to move beyond price effects toward a holistic and critical evaluation of how the current antitrust dogma upheld by federal judges of both the left and the right serves unequal power arrangements under the guise of “consumer welfare.” We will explore how antitrust enforcement can look beyond price, innovation, and choice for consumers to become a strategy to promote unions, inefficient competitors, and – in the words of Rebecca Kelly Slaughter – confront “structural and systemic racism that underlies and facilitates acts of violence.”

Law 511 – Antitrust Without Apologies

How to bring cases first and define the theory later – such as the failed FTC case against the Meta monopoly, while ignoring the fierce competition Meta faces from YouTube, TikTok, iMessage, Mastodon, LinkedIn, as well as growing personal networks such as WeChat, Telegram, Snapchat, Reddit, Pinterest, Discord, and Tumblr.

Law 512 – Gerrymandering Antitrust Cases

We learn how to sue anyone as a monopolist by defining markets as narrowly as possible. A case study: How the FTC under our Director Khan investigated Subway as a “Big Sandwich” monopolist by excluding markets for warm beef and chicken sandwiches, while otherwise including anyone who could slap something between two pieces of bread. Students will develop mock cases of their own, such as suing Chick-fil-A for monopolizing the market for chicken sandwiches not sold on Sundays.

Law 513 – Vertical Integration as Original Sin

We learn why owning multiple stages of production is presumptively suspect, especially when heartless efficiency is maximized.

Law 514 – The Heroic Return of the Robinson-Patman Act

How the future regulator can ensure that no firm ever gets too good at winning market share by economies of scale and discounting for consumers. Case study: How the “Walmart Effect” ruined the American economy by delivering “Everyday Low Prices.”

Administrative Omniscience: Law 515 – Monopsony Everywhere

How to develop the techniques for finding the victimization of labor markets in any dataset and convert competition law into a parallel labor code.

Law 516 – The Policemen at the Elbows

Explore the social value created by unrelenting oversight and static rules on dynamic markets. We will develop advanced mental techniques by which antitrust experts can foresee future market developments that elude the brightest people in investment capital.

Econ Colloquium: Industrial Policy for Beginners

How to use political favoritism and heavy-handed capital allocation under the rubric of “planning.” We will also study how subjecting capital and business to the whim of politically controlled regulators will one day lead to the “withering away” of the state.

Capstone Project – Designing Markets that Behave

Students re-engineer industries so outcomes align with preferred social distributions – avoiding demerits for any policies that promote efficiency. Students must always keep faith with the Center’s motto: Vigil ad cubitum (“The policeman at the elbows”).

Robert H. Bork Jr. is president of the Antitrust Education Project.

What is left is right, and what is right is left – and both are getting it all wrong.

A convergence is taking place between the philosophies of some on the new right and the progressive left that treats social media as a “product” that must be regulated in the best interests of the American people, sweeping aside quaint concerns about the First Amendment guarantee of free speech.

We recently covered attempts by the Trump chairmen of the Federal Trade Commission and Federal Communications Commission to regulate journalism by overriding the First Amendment with appeals to consumer protection and airwave regulation.

This dovetails nicely with a recent New York Times op-ed by Tim Wu – who led the implementation of progressive policies from inside the Biden White House – arguing that social media is “a defective, hazardous product” that must be regulated “as a matter of public health.”

He echoes the reasoning of trial lawyers seeking to hold Meta, Google, Snap, and TikTok liable for harming youth. Wu lists a parade of horribles – “algorithmic recommendations, infinite scroll, auto video play and intermittent reinforcement (in which likes, comments, and refreshed content are rewarded unpredictably rather than consistently).”

Put aside, for a moment, the obvious lack of utility of a social media platform that doesn’t guide users to what they want to see, or that requires manual intervention to get something to play. Wu’s point here is that “the very design of social media is intentionally engineered to create compulsions and habits of overuse, regardless of the content provided.”

He adds: “Lofty platitudes about free speech ring hollow in the face of teenage depression, self-harm and suicide.”

Thus the circle squares, from Trump FTC Chairman Andrew Ferguson, who wants to apply consumer product regulation to Apple News, to Wu, who wants public regulation of social media to make it less harmful.

Wu is, to say the least, less than an ardent defender of free speech. He achieved notoriety with an essay that asked, “Is the First Amendment Obsolete?” (Short answer from Wu: yes.) There is also a more thoughtful side to Wu. He is right that American teens are too absorbed by social media, many dangerously so. But the solution, if there is one, could never come from government control of speech.

Several years ago, Elizabeth Nolan Brown in Reason magazine summed up the problem with blaming all the ills of the world on algorithms – which are, after all, a way to give users control of the content they see. Brown wrote:

It’s no secret that tech companies engineer their platforms to keep people coming back. But this isn’t some uniquely nefarious feature of social media businesses. Keeping people engaged and coming back is the crux of entertainment entities from TV networks to amusement parks…

Moreover, critics have the effect of algorithms precisely backward. A world without algorithms would mean kids (and everyone else) encountering more offensive or questionable content.

Brown quoted Meta’s former vice president of Global Affairs, Nick Clegg, who said that without the news feed algorithm, “the first thing that would happen is that people would see more, not less, hate speech; more, not less, misinformation; more, not less, harmful content.”

Algorithms pluck what users follow out of a torrent of billions of global messages. Without them, that torrent would hit us all in the face.

For reasons spelled out by Brown, Wu’s idea of turning over algorithmic control – and thus speech control – to law enforcement and trial lawyers has no hope of working. The same is true of the efforts of FCC Chairman Brendan Carr and FTC Chairman Andrew Ferguson to force journalists to adhere to their idea of greater ideological balance.

If either side ever succeeds in putting their schemes into action, they are sure to be disappointed when their controls fail to deliver the intended results. The obvious answer, to them at least, will be that even more control is needed. Then more.

Both ideological extremes are in a race to the bottom. Defenders of the First Amendment must be bolder than ever in declaring that speech is not a product – it is a human right.

The Robinson-Patman Act of 1936 is the black sheep in America’s family of antitrust laws. The Sherman Act of 1890 and the original Clayton Act of 1914 have long been read to promote efficient competition, not to protect small firms from the rigors of competition. But the RPA has always been different. Its convoluted text seems to require protecting the profit margins of small retailers even at the risk of raising consumer prices. Fifty years ago, the federal antitrust agencies soured on that project and gradually stopped enforcing the RPA.

Those days of considered neglect are now over. The RPA has regained a surprising degree of bipartisan support (see here, here, and here), and the FTC is actively litigating its first RPA case in decades. What explains the new enthusiasm for this Depression-era statute, and what are the consequences for consumers?

Some history

Let’s go back to the beginning—to the economic history that originally motivated this legislation. A hundred years ago, a single company’s business plan radically disrupted the U.S. retail sector and created important political enemies along the way. That company was a vertically integrated supermarket chain named A&P, which eclipsed traditional grocery stores and rapidly became America’s largest retailer by far.

How did A&P do it? Because of its scale, A&P negotiated lower wholesale prices from food producers than smaller grocers could bargain for. And A&P had vertically integrated into warehousing and distribution, so it could avoid paying the traditional wholesale middlemen who served the smaller grocers. A&P passed these upstream savings on to consumers in the form of lower retail prices that corner grocers could not match. This benefited consumers but harmed the corner grocers and the independent wholesalers who served them.

The RPA was enacted in large measure to curb A&P’s successful business model and—no surprise—was originally entitled “the Wholesale Grocer’s Protection Act.” Let’s quickly review the RPA’s working parts as they relate to so-called “secondary-line” price discrimination.

In general, the Act forbids suppliers to sell “commodities of like grade and quality” at different prices to different purchasers if doing so gives one purchaser a competitive advantage over another. But that general prohibition on price discrimination comes with a variety of qualifications and defenses that have spawned 90 years of interpretive controversies.

First, the Act applies only to sales of tangible products, not to services, and only if the goods qualify as “interstate” in the sense that they can be said to cross state lines. That requirement has given rise to all sorts of disputes about (for example) how to treat goods that are manufactured in one state, shipped to a warehouse in another state, and only then sold to the latter state’s purchasers.

Second, a supplier that provides special discounts to a given purchaser can escape liability if it proves that it acted in good faith “to meet an equally low price” of a competing supplier. But this affirmative defense permits the supplier only to meet, not to beat, the lower price. It also requires defendants to substantiate their prior knowledge about their own competitors’ prices. That requirement in turn creates perverse incentives for the relevant actors to share otherwise non-public price information, with the potentially anticompetitive effect of stabilizing prices.

Another affirmative defense enables a supplier to escape liability if it proves that its price differences mirror “differences in the cost of manufacture, sale, or delivery” of the relevant goods. In practice, this is a difficult defense to substantiate. Litigation on the issue, in the words of one Yale professor in 1937, “proceeds by the ordeal of cost accountancy,” with opposing experts arguing about such economically intractable issues as the proper way to allocate joint and common costs across different transactions.

Now let’s return to the Act’s core ban on wholesale price differences and the immediate effects on A&P and other chain stores. Before 1936, A&P could bargain aggressively with farmers for company-specific discounts on (say) eggs and pass the savings through to its retail customers. But after 1936, a farmer had to charge A&P the same price per egg that it charged smaller grocers or their wholesale suppliers. This requirement plainly benefited small grocers and wholesalers at the expense of A&P. But what was the likely result for consumers then and today? In the aggregate, does the RPA’s qualified ban on price discrimination raise the wholesale prices charged to grocery stores and ultimately the retail prices charged to consumers?

The consumer effects of restricting wholesale price discrimination.

The answer to that consumer-welfare question is complex and market-dependent (see here, here, and here). As the RPA’s defenders explain, it is too facile to argue that RPA enforcement always leads to higher retail prices. Banning price discrimination does not necessarily cause a supplier to raise wholesale prices for all buyers, including the most powerful ones, to the highest level that the supplier would otherwise charge the smallest buyer with the least bargaining clout. Instead, the new wholesale price equilibrium might well fall somewhere between the highest and lowest wholesale prices that would be charged but for the ban on price discrimination.

Consider the newly uniform wholesale price of eggs after 1936 in our A&P hypothetical. Depending on competitive dynamics, that price might well have been (1) lower than what the smallest grocer would have paid absent the RPA but (2) higher—and perhaps much higher—than the much lower wholesale price that A&P previously negotiated. That outcome would have been a mixed bag for consumers. On the margins, a significant shift in wholesale costs would have enabled small grocers to lower their retail prices while forcing A&P to raise its own retail prices. And the most price-sensitive retail consumers—those with tightest budgets who came to A&P looking for the best bargains—likely paid more for their eggs, all else held equal.

What was true in 1936 remains true today. The RPA likely has similarly regressive effects on low-income households, at least in some contexts. And the statute’s qualified ban on price discrimination might also cause more systemic competitive harms. For example, by mandating wholesale price uniformity, the RPA makes coordination easier and retail prices stickier by increasing each market actor’s visibility into other market actors’ pricing practices.

Much of the recent discussion about the RPA’s competitive effects involves a debate about the so-called “waterbed effect” modeled by some economists and championed by Republican FTC Commissioner Mark Meador. The theory proceeds as follows. Because upstream price discrimination reduces a larger retailer’s wholesale costs and permits it to undersell a smaller retailer, it can lessen the smaller retailer’s market share and thereby reduce the smaller retailer’s bargaining clout with their common supplier. In a worst-case scenario, the feedback loop may lead the smaller retailer to exit the market. And the RPA’s defenders argue that, in some contexts, this effect might result not only in hobbled competitors, but also in higher average retail prices.

That outcome, however, is likely the exception rather than the rule. Even where price discrimination ends up marginalizing small retailers, competition among large retailers (e.g., Walmart, Target, and Costco) normally induces each such retailer to pass some and perhaps most of its wholesale discounts through to consumers, depending on the extent of the downstream competition. And the waterbed effect should have no effect at all on smaller retailers (such as general stores in remote rural areas) that do not compete with large retailers in the first place. By hypothesis, their market share is unaffected by the large retailers’ competitive offerings, and thus their bargaining power with suppliers is unaffected by whatever discounts those larger retailers receive.

The decline, fall, and sudden rebirth of federal RPA enforcement.

In short, even if the RPA does occasionally have consumer benefits, such benefits are episodic and incidental to the protectionist objectives of the Act. And they are probably more than offset in the aggregate by the Act’s upward retail pricing pressure in other markets.

That, in any event, was the conclusion of an influential 319-page report issued by the Department of Justice in 1977. DOJ placed the Act squarely in its historical context. As it observed, “the Robinson-Patman Act is a piece of depression-era legislation” and resembled the National Industrial Recovery Act, which sought to boost employment by eliminating cut-throat competition and stabilizing prices at inflated levels. DOJ’s report concluded that Robinson-Patman likewise served in many markets to raise consumer prices. DOJ also compared the Act to the Nixon Administration’s then-recent experiment with wage and price controls, noting that “government tampering with the market can lead to unforeseen results which have an adverse effect on workers, businesses, and the consuming public.”

DOJ’s 1977 report was hardly the first comprehensive critique of the Robinson-Patman Act, but it crystallized widespread opposition to the Act in antitrust circles, and the results were immediate and striking. DOJ stopped enforcing the Act altogether. The FTC, which had brought thousands of RPA claims in the 1960s and 1970s, followed suit shortly thereafter. Of course, non-enforcement by the federal government did not mean that the Act itself fell into complete disuse. But it did shift the burden of RPA enforcement to the private plaintiff’s bar, which lacks the federal government’s powers of pre-litigation discovery.

But here’s the breaking news: the federal enforcers have put on their cleats and want back in the game. Lina Khan’s FTC brought two high-profile Robinson-Patman cases towards the end of the Biden administration, and one of them remains alive and kicking with no end in sight. And earlier this year, six Republican Senators publicly urged both the FTC and DOJ to bring more Robinson-Patman cases to support the interests of various business constituencies.

This is unsurprising. Populists on both the right and the left view Robinson-Patman litigation as an important weapon in the fight against what they perceive as excessive market concentration. And when push comes to shove, they are willing to ban price discrimination to prop up small businesses even if doing so harms consumers.

This makes sense as a purely political matter because the resulting consumer harms are more diffuse and obscure than the benefits to small businesses. The constituencies that support aggressive RPA enforcement can realistically hope for reduced competitive pressure and wider profit margins. In contrast, consumers are very unlikely to connect downstream price hikes with an uptick in RPA enforcement and are thus unlikely to pin political blame on the RPA’s champions.

To be sure, this is a ham-fisted way to help Main Street. Even if one believes that the government should support small retailers to preserve their perceived value to local communities, there are more efficient and consumer-friendly means to that end, ranging from tax credits to small-business loans. Nonetheless, the RPA remains the law and says what it says, and enforcers have taken a new shine to it.

* * *

For many years as an antitrust lawyer, I hoped to get away with learning very little about the Robinson-Patman Act. After all, DOJ and the FTC had soured on the RPA and stopped enforcing it. Why should I have to learn the arcane details of this benighted statute?

Alas, as with so much else in antitrust, everything old is cool again. The Robinson-Patman Act is badly drafted, byzantine in its application, and at odds with the consumer-oriented thrust of America’s antitrust laws. But if you’re an antitrust lawyer, you’d better bone up on the doctrinal details because federal RPA enforcers are back in the saddle.

Editor’s Note: Did it seem like DEI (Diversity, Equity, and Inclusion) initiatives sprang out of nowhere? Or that a giant, multibillion-dollar sector of diversity training seemed to suddenly emerge from that same nowhere to teach Americans to walk on eggshells?

In fact, these trends were a long time in the making, germinating in law since the 1990s. Gail Heriot, a legal scholar who has served on the U.S. Commission on Civil Rights, explains how a law passed in 1991 incentivized a “woke” approach to race and sex, replacing the venerable quest for equality with the nebulous concept of “equity.”

The following is a lightly edited version of speech Professor Heriot gave last December at Cornell University.

Sometimes the nation gets swept away by sudden enthusiasms for which there is no real explanation—like pet rocks, the Macarena, or fidget spinners. They seem to come out of nowhere. But very few things are like that. Most trends, including those of an ideological nature, have a cause or (more commonly) a constellation of causes. And they build over time. The “woke ideology”—which I’ll be talking about a bit this evening—is no exception.

I think most of you have some sense of what I mean by “woke ideology.” It’s not just about being sensitive to whatever special challenges that are thought to be faced by women and minorities, although that’s part of it. It’s a set of beliefs—central among them that when group outcomes differ by race, it’s the result of the nation’s long and continuing history of racism. The same goes for differences based on sex and other identity factors. Those who subscribe to the woke ideology tend to reject laws that require that individuals be treated equally regardless of race or other identity factors on the ground that those laws are insufficient to equalize group outcomes.

If you believe (and spoiler alert, I do not) that racism, sexism, and the like really are the cause of, well, everything, then I suppose that’s an explanation enough for the intense popularity of the woke ideology in the last decade or so—women and racial minorities finally have gotten wise to it all and they’re not goin’ to take it anymore.

But if you’re like me and like most Americans, it just doesn’t seem to jibe with the America we see around us—a country that is imperfect, but nevertheless fundamentally decent and in some ways exceptional. We’re looking for a different and better explanation.

The 1991 Civil Rights Act

I don’t believe anyone can give an exhaustive explanation for the Woke Era in a short space. Any such explanation would have to look at the issue from many angles: demographic, economic, ideological, technological. My aim is more modest. I want to talk about the contribution made by the area I know best—civil rights law and policy. In particular, I want to concentrate on one law, the Civil Rights Act of 1991. Its special ability to cause Americans with conservative, libertarian, and centrist views on race and sex to feel they must walk on eggshells has been a significant contributing factor to the Age of Wokeness and quite possibly the age of Trump too.

What happens when people in the center and right two-thirds of the political spectrum are made to be especially uncomfortable in speaking about issues of race and sex? The answer to that should be obvious. Overwhelmingly, they clam up, so a large swath of the population starts to sound like a fringe group. Meanwhile, free from substantial criticism, the ideas that start out somewhat left-of-center slowly evolve to be quite left-of-center, then far-left, and eventually, in my opinion, into woke unreality.

So let me tell you a little about the Civil Rights Act of 1991 and why I think it caused people to clam up. You are to be forgiven if you’ve never heard of it. Unlike the landmark Civil Rights Era legislation of the 1960s, it doesn’t get a lot of mention these days. And I don’t recommend that you put it on your summer reading list. It reads a bit like the Tax Code. But like the Tax Code, it created incentives that have had a real impact on our lives.

A Brief History

When it was signed into law by President George H.W. Bush in 1991, it contained many provisions, some ok, some not-so-ok, and some maybe well-meaning but quite terrible. In retrospect its most important provisions were the ones that made employers who intentionally discriminate liable for emotional distress and punitive damages. To be sure, there were caps on the amounts that could be recovered, caps put there at the insistence of the Bush Administration and still in effect today (though a bill was recently introduced in Congress that would remove the caps). No one could get more than $300,000 in combined emotional distress and punitive damages. And for cases against very small businesses the cap was lower. Still, the amounts were more than enough to grab the attention of most employers. And for reasons that I’d need an extra three hours to explain, the caps did not apply to cases involving racial harassment or discrimination. These changes significantly raised the financial stakes for most employment discrimination cases. That matters.

Here’s the way it worked: Beginning in the 1970s, courts began to view certain kinds of workplace interactions—deemed to be “harassment”—as Title VII violations. During that period, however, the largest sum of actual money a plaintiff could hope to receive for winning a Title VII lawsuit would have been the value of the wages lost as a result of the violation. They might be able to get an injunction too, but that’s not money. Since only serious harassment was likely to result in lost wages or the desire for an injunction, harassment lawsuits were relatively uncommon. The new provisions for emotional distress and punitive damages in the ’91 Act greatly expanded the array of racial and sexual harassment cases that could be worth a plaintiff’s time and energy to litigate.

In some sense, of course, that is exactly what the Act’s supporters wanted. More lawsuits and higher damages could mean more effective deterrence, or so the Act’s supporters hoped. What Congress probably didn’t bargain for was how overwhelming the deterrent effect would be.

But think about it: Harassment was and is an ill-defined concept. By adding the possibility of significant financial gain, the new law invited aggressive efforts to expand what could fit into that concept. The uneasiness this caused for employers is easy to understand.

The most fundamental reason for the law’s disproportionate deterrent effect was the cumulative nature of harassment. As the Supreme Court interpreted the law, a thousand pinpricks, no one of which is serious in itself, could add up to a violation. Those pinpricks wouldn’t have to come from the same person. A sexual harassment case could be made up of a rude remark from one colleague, an annoying stare from another, and a sexy cartoon anonymously pinned to a bulletin board. Individually, those pinpricks would have no legal effect. But together, at some undefined tipping point, they could create liability for the employer.

Racial harassment was no different. At some undetermined point, one colleague’s imprudent race-based teases, another’s controversial reading material at lunchtime, combined with yet another’s objection to an affirmative action plan, could put the employer in the firing line of a lawsuit.

Once the ‘91 Act passed, jittery employers correctly understood that to avoid costly lawsuits they needed to control employee speech and conduct at the pinprick level. There was no other way.

It wouldn’t be fair to say that the Bush Administration was asleep at the wheel when this was happening. Bush had actually vetoed an earlier (and worse) version of the bill—called the Civil Rights Act of 1990—and his Congressional allies and Administration lawyers were prepared to hang tough to get a bill that would be acceptable to them. But a funny thing happened while the new version—the one that Bush eventually signed into law—was being negotiated: Bush nominated Clarence Thomas to the Supreme Court. Then, suddenly, Anita Hill appeared to provide exactly the push the bill needed. In televised hearings, she accused Thomas of having pestered her for a date and having a bawdy sense of humor. The public was mesmerized to hear the subject being discussed in a stately Senate hearing room. Bill supporters finally had the high-profile case of sexual harassment had been hoping for. Bush’s political advisors told him that if he wanted to be re-elected, he needed to sign the bill. So he did, while his legal advisors looked on with worry, not knowing exactly what the fallout would be.

Title VII

Looking back over the years, I believe the fallout was extremely significant. It helped lead to endless woke DEI training and perhaps ultimately to the Age of Trump, though it wasn’t so clear at the time. Over the next 30 years, it did a lot to silence the voices of everyday Americans whose views are center-right. That in turn has done a lot to knock our civil rights policy off kilter.

But to understand that fallout, we need to back up to 1964 and see how Title VII was originally structured and how the ’91 Act upset that structure.

Allow me to do just that:

Under the original version of Title VII, the prohibition was worded very broadly. Any discrimination by employers, no matter how trivial, was technically a violation. So if a business that’s located in a cramped, old building has a slightly more conveniently located restroom for men than it does for women, it’s in violation.

Still, nobody with the gift of wisdom is going to want to make a federal case out of it. Fortunately, the way the statute was set up, we didn’t need to rely on people having that wisdom. First, an aggrieved individual would have to take the case first the EEOC for mediation. If she was dissatisfied with that mediation, she could take the case to court. But she could get only two possible remedies: lost wages or an injunction (or both). But minor cases rarely involve lost wages. As for injunctions, they could be useful—but they wouldn’t make the plaintiff rich, so they usually wouldn’t be enough to convince someone to sue who didn’t truly feel she’d been wronged. Moreover, they couldn’t be used in a situation where an employee had been fired for good reason and had therefore become angry and desperate, such that she “just remembered” that she’d been harassed and mistreated while still on the job. It’s too late to have the court fix the problem with an injunction. All this worked as a structural brake on Title VII.

My University of San Diego law students sometimes think that the reason Congress limited the remedies in 1964 was that they really didn’t care about ending discrimination. Alas, our students sometimes come to us already educated to believe the country is rotten to the core, so I guess it’s no surprise that they’d think that way. But that’s not it. Here’s one piece of evidence: Congress also gave Title VII plaintiffs one boon that’s unusual in American law: Successful plaintiffs could get the defendant to pay their attorneys’ fees. Congress understood that injunction cases don’t generate a pot of money out of which a contingency fee can be paid and they also understood that even in cases involving lost wages, low-income plaintiffs with perfectly good cases would sometimes have a hard time hiring an attorney because the amount of money involved would be too small to generate a significant contingency fee.

Lawyers and legal historians can often guess why Congress limited remedies the way they did. But if you’re not one, you’ll probably never guess: So I’ll tell you: Congress did it to make sure that employers wouldn’t have the right to a jury trial. For reasons involving the 17^th century English distinction between “law” and “equity” that we needn’t go into now, jury trials aren’t available in cases involving injunctions and sometimes injunctions plus a little more. Congress was unconvinced that Title VII would be enforced by juries in Jim Crow states.

So that was the state of play in 1964: A extremely broad prohibition, narrow remedies designed to avoid jury trials (though not that narrow, since recovery for emotional distress and punitive damages is somewhat rare in the law). And all that was combined with an unusual provision allowing successful plaintiffs to recover for attorneys’ fees.

Was Title VII a perfect engine for the elimination of discrimination? Of course not. No law is ever has been. The only way to give the public perfect protection against violent crime is to have a police state. The only way to give the public perfect protection against ever-dreaded misinformation is to shut down discussions that a free society needs. The original version of Title VII wasn’t perfect, but it was serviceable.

As an aside: Just in case some of you are the kind who think that the law can work miracles, let me urge you never lose sight of the fact that our best protection against employer abuse including discrimination is a strong, competitive economy. With it, everyone can prosper. If instead the economy goes to hell, all bets are off. All the worker-protection laws in the universe won’t help us. Anti-discrimination laws are a good supplement when the economy is somewhere between terrific and terrible and especially when entrenched laws and practices have disrupted what otherwise would have been a competitive economy, but it’s only a supplement.

And I would submit that, all things considered, we made things worse when we amended Title VII to make lawsuits more lucrative. In the early 1990s, harassment lawsuits brought under Title VII skyrocketed. Employers panicked. Everything that anybody might consider offensive had to be eliminated. And the Supreme Court, in what appears to have been an effort to throw employers a lifeline, told them that if they can just set up procedures under which employees can have their complaints investigated and dealt with, and if they can just train their employees to avoid harassment, they would to a certain extent be protected from liability.

Where This Got Us

So what do you think you’re going to get under such circumstances? You’re going to get an in house bureaucracy to field complaints and micro-manage human relations from afar. And you’re going to get training, training, and more training. Under the Supreme Court’s analysis, it didn’t matter if the training and the reporting procedures were effective; just having it would count in the employers’ favor.

This kind of training rapidly became a billion-dollar business and evolved into what we call DEI today. It’s no wonder employers would seek professionals—often the products of over-the-top university multi-cultural programs of the 1980s and 90s—to help them instruct their employees on how to avoid offense. Consider the number of words that people were finding racially insensitive in the 1990s and early 2000s “cakewalk,” “long time no see,” “master bedroom,” “no can do,” “plantation shutters,” and “peanut gallery.” There was a surprisingly widespread notion that the word “picnic” derives from lynching parties. “Picnic” was said to derive from “pick a [insert a derogatory name here]” to lynch. A Smithsonian staff member reported that at one point she was fielding several calls a day about this absurd belief.

One thing you can count on in life, big businesses want to stay in business, so they will keep inventing new things that just might cause offense. Thus the concept of micro-aggressions was popularized. In a pre-1991 Act world, employers and employees could laugh off hyper-sensitivity. But in a world where harassment is judged on a cumulative basis and in which hyper-sensitive employees may have a successful “retaliation” lawsuit under Title VII if they can prove that they’ve been discouraged from making complaints, employers can’t laugh off anything. Every complaint must be treated with kid gloves. The law thus encourages ever greater levels of sensitivity.

Among the so-called micro-aggressions that we’re now routinely warned not to say are those that can be interpreted to relate to affirmative action. Specifically, you can’t say:

“I believe the most qualified person should get the job.”

“As a [manager], I always treat men and women equally.”

Think about what that means. The animating principle behind Title VII when it passed in 1964 was “the most qualified person should get the job regardless of race, color, religion, sex or national origin.” The Supreme Court 15 years later in United Steelworkers v. Weber held that, well, the statute might say no discrimination, but it doesn’t really mean that. Discrimination in favor of under-represented minorities is okay sometimes—even morally upright! The dissent by Justice William Rehnquist rightly called the decision Orwellian; that is, an obvious case of judges deciding what they think the law should be rather than what it is. But that was nothing compared to the last decade or so during which even articulating Title VII’s animating principle—the most qualified person should get the job—can be viewed as harassing and hence a violation of the law.

Here are a few more of these standard-list microaggressions:

“Where are you from?”

“Where were you born?”

“Don’t say that!”, employees are instructed. And if you can’t say that, you sure can’t say to your colleagues—“I don’t think we need bring in more employees on a H1-B visas. There are plenty of qualified Americans out there.” And you sure don’t want to say, “We need to be more careful about not hiring undocumented workers.” Is it any wonder that employees who are opposed to affirmative action or who have concerns about immigration think they have to walk on eggshells? And if they can’t say these things at work, they can’t say them in public.

Let’s face it: It has always made most people uncomfortable to talk about race and sex (and I’ll include within that immigration). But the ’91 Act and diversity bureaucracy and relentless training that grew up around it made it exponentially worse.

And is it any wonder that politicians and commentators, when they don’t hear views from the center-right as often, get a mistaken view of where public opinion lies. Or that left-of-center ideas get flakier and flakier when they aren’t subject to criticism?

I picked up a copy of White Fragility: Why It’s So Hard for White People to Talk About Racism, the runaway bestseller by celebrity DEI trainer Robin DiAngelo a few years ago. The book purports to be a distillation of what she has learned over the course of her many years as a trainer. Her message amounts to this:

1. All the whites are the racist beneficiaries of white privilege, right down to the lowest paid WalMart warehouse worker forced to sit through her teaching.

2. Only whites can be racist.

3. Whites who complain about “‘reverse’ racism” are being “profoundly petty and delusional.”

4. If her trainees don’t docilely accept these teachings, they are displaying what she calls “white fragility.”

That’s pretty extreme. But the book sold 5 million copies, so somebody liked it. Still, if you can’t see how that will go over with a blue-collar white guy struggling to make ends meet in a dead-end job, you’re not trying.

The thing that struck me most about DiAngelo’s comments was that she was experiencing a lot less pushback around the time she wrote the book (which was published in 2018) than when she first started as a trainer many years prior. She attributes this to her many years of experience as a diversity trainer. Maybe. But I wonder if something else isn’t going on. As politically conservative and moderate employees were exposed to year after year of training, they were learning there’s nothing in it for them to talk back. They clam up. Polls show this quite clearly and may even underestimate the effect. Self-described moderates avoid speaking up almost as much as self-described conservatives. But just because they do so that doesn’t necessarily mean they change their views.

It does mean, however, that political leaders and commentators (who may well understand that the legitimacy of our form of government depends in large part on its ability to effectuate the will of the people) have a hard time. How can you even gauge the will of the people when there’s an imbalance of that kind?

Let me give you a couple of examples: A little more than 10 years ago a good friend of mine, somebody whose stock in trade is largely to detect public opinion, told me with great assurance that very few voters were interested in the immigration issue. Just a few disgruntled populists. But for the vast majority of voters, it was at the bottom of their list. A year or two later, Donald Trump descended on the escalator. It turned out that many voters were frustrated enough to vote for the guy they saw as the disrupter.

Here’s another example, one that involves work that I was involved with. Almost 30 years ago, in 1996, I co-chaired a California ballot initiative called Proposition 209. It amended the state constitution to include these words: “The State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, color, sex, ethnicity or national origin …” It was aimed at prohibiting the kind of preferential treatment we call “affirmative action.”

At the time, 30 years ago, we strongly suspected it would pass once it got on the ballot. And we weren’t the only ones who thought so. Our opponents must have thought so too, for they employed mostly disingenuous arguments against us, claiming the effect of the initiative would be to legalize sex discrimination. Even liberal newspapers admitted the argument was just plain silly. In the end, it did pass; and I’m proud to say it even made a history book or two.

Fast forward to the more recent past. The California Legislature had been trying to come up with a way to expunge Proposition 209 from the California Constitution for years. They liked having the power to discriminate. That’s not too weird. People in positions of power don’t like limitations on their power, and that’s what Proposition 209 did. What was weird was that they had convinced themselves that the voters wanted them to have it. It was gospel in Sacramento, even among some of the Republicans, that since California was a majority minority state, the people couldn’t wait to crank up the preferential treatment machine again. In 2020, in the midst of Woke Fever, the legislature made its move: It put a referendum on the ballot (known as Proposition 16) that would have repealed Proposition 209.

It flew through both houses as if it had wings. All the Democrats and even some Republicans voted for it.

A “NO on Prop 16” campaign, which I co-chaired, was quickly assembled. Everyone thought we would lose. Money poured into the campaign coffers of our opponents. They had more than 14 times more money than we had—almost every nickel of it in huge donations from major corporations, big unions and real estate moguls. And endorsements! They had Kamala Harris, Dianne Feinstein, Bernie Sanders, Gavin Newsom, Alex Padilla, Pete Buttigieg, Nancy Pelosi, more than two dozen members of the U.S. House of Representatives, and lots of big city mayors.

It wasn’t just politicians. The Golden State Warriors, the San Francisco 49ers, the San Francisco Giants, Lyft, Uber, Facebook, United Airlines, Wells Fargo, Yelp, and Instacart all endorsed Proposition 16. Plus the New York Times and every major California newspaper with the exception of the Orange County Register.

What did we have? We had hundreds of volunteers, many of them immigrants and children of immigrants who had come to this country precisely because they’d been told that American was the place they wouldn’t be discriminated against.

In the end, we shocked ‘em. Proposition 16 was defeated overwhelmingly—We got over 57% of the vote. Of course, our opponents immediately argued that the voters had simply misunderstood. But an important poll taken directly after the election proved otherwise. The politicians in Sacramento were simply out of touch. And I believe the ’91 Act was a highly significant contributing factor to that situation. We’re all trained not to talk about race and sex preferences.

Ok, so far I’ve mostly been saying that the ’91 created a culture that made it difficult for elected officials to understand where the voters were coming from. I don’t mean to suggest that the only thing. In addition, I believe the voters tended to be right about the core policy issues. For example, for reasons that I’d be happy to talk about if we had all week, I believe the public has it right that the only just and sustainable policy is that of race and sex neutrality: No preferential treatment based on race or sex. But it is perhaps easier to make my point in terms of a different issue—and that of criminal justice.

Criminal Justice

Five years ago, thousands of convicted criminals were emptied from the prisons on account of COVID. Teenage gang members were not in school. Then a few weeks later, the country went on a DEFUND THE POLICE kick and this was argued for (mostly by people who live in higher-income safer neighborhoods) as necessary to protect African Americans whose neighborhoods were said to be “over-policed” from police brutality. It was a time we could have used MORE police protection, not less. But we got less. Most Americans understood that it would have the opposite effect. That those living in low-income African American neighborhoods would suffer most of all. But very few were willing to say so out loud. And sure enough, that’s what happened.

Part of the problem is that left-of center voters don’t have the facts right. A national survey conducted in 2019 found that nearly 44% of self-described liberals believed that an alarming 1000 or more unarmed African American men had been killed by police in that year alone. But those estimates were wildly off. The true number was 29 that year. Not 1000, 29.

Similarly, a 2020 survey found that 60% of highly educated white liberal respondents believed that young African American men were more likely to be shot to death by the police than to die in an auto accident. In fact, young African American men (ages 18 to 34) were more than 17 times more likely to die in a motor-vehicle accident than to be shot to death by police in that year. 17 times.

It’s not that police brutality doesn’t exist. It is the fundamental tenet of conservatism that wherever power is found, there will be abuse. Police have power. Oversight is necessary. But the other side of the coin is that police protect us all from crime, and that argument wasn’t getting made.

To close: Do I really believe that the ’91 Act is solely responsible for these problems? Of course not. Lots of things had to happen too in order to get us where we are today. We live in a complex world. Do I want to say that without the ’91 Act, over-the top DEI training and DEI bureaucracies wouldn’t have come along, conservative, libertarians, and centrists would not have felt they must walk on eggshells, the woke ideology would never have evolved to be as radical and aggressive as it did, voters would never have decided they needed a “DISRUPTER” to pull things back in the direction of the center and Trump never, never, never would have been elected. I don’t think I want to put all my eggs in that basket either.

On the other hand, It. Wouldn’t. Surprise. Me. One. Bit.

First, though, we should acknowledge good news that is worthy of celebration. We are grateful that:

• The open border that allowed 14 million anonymous people from around the planet to stream into our country has been sealed shut. Order has been restored, fundamental to our survival as a nation.

• America’s energy leadership is now treated as a matter of national pride and economic health instead of a moral failing to be discouraged and ultimately destroyed.

• The strange fetishes of oppressive “woke” ideology and corporate and university speech codes are getting long-needed and well-deserved pushback.

• The secret censorship programs of the last administration have been exposed and ended.

That is all to the good. But with every step forward, the new right then takes us two steps backward – the paradox of so-called conservatives advancing progressive policies and cementing long-sought ambitions of the socialist left.

• Uncle Sam Takes a Seat on the Board of Directors: The second Trump Administration, like the first one, is stripping back regulations and freeing Americans to work, save, invest, and profit.

  • At the same time, this administration is mixing public monies with private investment, extracting shared profits, and crafting bespoke regulations to guide the business strategies of corporations. Washington is essentially acting as a corporate director, laying the foundations for state capitalism.

• Winners and Losers Chosen by Politics: Industrial policy in some critical sectors – such as rare earth minerals and advanced semiconductors – can be justified as a response to China’s predatory mercantilism and geopolitical hostility.

  • But the politics of industrial policy are spreading, encouraging cronyism and special pleading. For example, the difference between industries that must pay tariffs and those that do not are often due to which ones have lobbyists best positioned for the politics of the moment.

• Antitrust Policy that Forgets the Consumer: For almost half-a-century, antitrust policy has been guided by the Consumer Welfare Standard, which takes the politics out of regulatory enforcement by judging mergers and acquisitions by their impacts on price, choice, and innovation for consumers.

  • Inexplicably, President Trump’s antitrust regulators failed to restore the Consumer Welfare Standard by adopting and extending the guidelines of the ultra-progressive antitrust regime of President Biden and his Federal Trade Commission Chair Lina Khan. The result is a hybrid “America First” antitrust policy that sounds conservative but embraces the progressive actions of the Biden-Khan era.

• Free Speech for Me But Not For Thee: The Trump Administration ended the State Department program that funded efforts to scare advertisers away from conservative news outlets, and an FBI “jawboning” program that pressured social media companies to secretly deplatform conservative speech.

  • Yet this same administration uses executive orders to target firms and individuals for criminal investigation for political speech. The Federal Communications Commission abuses its regulatory authority and revives long-dormant doctrines from the broadcast era to punish news organizations for their editorial decisions and to strongarm networks into firing talk-show hosts.

We could go on – and in the months ahead, we will. But for now we hope this short survey of the current landscape shows just how far we’ve come from the limited government and neutral regulation of the conservative past. Instead, what we have is a system that treats laws and norms as much of the rest of the world does – as the means to bend people, businesses, and industries toward political fealty.

Centuries of conservative tradition teaches us that this can only end in tears.

Turnabout Is Not Fair Play: It Is Ideological Suicide

Some in the new right buy into the idea of turnabout is fair play. They understandably want payback. Liberals often twisted the law – from censorship to IRS audits – to cow conservative speech. Now the new right wants to use even stronger means, this time wielded without embarrassment in very public ways, against our former persecutors.

This is not only unprincipled. It is ideological suicide.

The new right suffers from the same delusion that the Biden progressives did – that they can hold onto power permanently. When the next progressive president takes office – and it will happen sooner or later (recent events suggest sooner) – the new right will have created the means for its own destruction and the reversal of every conservative achievement since Reagan.

That is why we warn against the threat of “conservative socialism.”

About Us

Our site is not dedicated to cultivating detestation for President Trump or to hype the outrage of the day. We refuse, like some former conservatives who are critics of Donald Trump, to let this moment propel us leftward, as have some at The Bulwark. We choose to take a stand for a return to first principles, and we welcome fellow conservatives and others who want to discuss and debate these propositions in this space.

The New Paradox and Antitrust

We’re kicking off our effort with a book, The New Paradox: Antitrust and the Threat of Conservative Socialism, by Robert H. Bork Jr. and Mark W. Davis, to explore how one of the major ways the new right is undermining the laws and norms that make capitalism possible. Available now on Amazon.

We are currently collecting commentary from leading voices on the right – economists, legal experts in regulation and the Constitution, popular influencers and editorialists, and movement conservatives.

Sample a free chapter from our book below:

Why Do Khanservatives Enable Their Enemies?

A passionate hatred for the Big Tech social media companies is driving the re-emergence of progressive antitrust and Khanservatism alike. Today, liberals and conservatives alike see a pattern similar to the big-trust era, only with new names – Jeff Bezos, Mark Zuckerberg, Tim Cook, and Bill Gates. While progressive antitrust aims at virtually all U.S. businesses, the emotional force behind it is animus against billionaires. For separate reasons, the right and the left both hate Big Tech.

The left is driven mad by aerial drone photos that show Big Tech’s founders’ latest acquisitions and building projects. A palatial Hawaiian estate. A well-appointed bunker to survive the apocalypse. A luxury yacht in the Mediterranean. A private spaceship. Is the comparison to the so-called “robber barons” of the past appropriate? Are these unusually large companies the Standard Oils and Central Pacifics of our day?

There is no denying that Big Tech is unusually prominent. The top eight U.S. tech companies combined have a market cap of about $20 trillion, almost 70 percent of the United States’ annual gross domestic product. Like the tycoons who inspired Sen. John Sherman to draft and pass his eponymous law, this concentration of wealth is inspiring a new generation of Republicans, independents, and Democrats to buy into a renewed wave of strong antitrust enforcement. But the size of these companies is not due to rigging markets, but to the tech phenomenon known as “network effects.” To put it simply, everyone uses Google because everyone uses Google. The participation of billions of people who make 8.5 billion searches a day sharpens Google’s ability to deliver. If you break up Google, something of a similar size would take its place. No one wants to be forced to use five different search engines.

Amazon, Apple, or Meta’s Facebook and Instagram are also hard fits as the 21st-century versions of Standard Oil. The trusts of old used predatory techniques to capture markets and often raise prices for – as Sen. Sherman put it – the necessaries of life. The social media platforms of today are offered to consumers for free, monetizing their data to sell to advertisers who want to show ads for island vacations, coffee makers, and organic dog food in their social media feeds. Consumers are thus free to access as many endless funny cat videos as they want. This bears no comparison to trusts that exercised restrictive control over commodities such as oil, sugar, or rail service. They are also not as eternal as you might think. AOL, Yahoo, and Myspace once seemed impregnable, if not immortal; today, so do Nvidia, OpenAI, and Palantir.

The animus on the right is driven by something entirely else. Most conservatives believe, with good reason, that Big Tech’s social media platforms de-posted and sometimes de-platformed conservative voices and ideas. While conservative content flourishes on Facebook feeds and in Amazon book sales, there have been high-profile instances of conservatives being exiled by major social media companies, for example, a temporary effort by Facebook to block the conservative online platform PragerU. Those who advanced the theory that Covid-19 leaked from a lab in Wuhan, China, or that school closures were harmful, were deposed. This censorship continued for some time after the FBI’s later determination that a lab leak was the likeliest source of Covid, and a wide body of research indicates that the school lockdowns were unnecessary in length and harmful to children. Thoughtful people like Harry Potter author J.K. Rowling, who criticized the readiness of the medical establishment to respond to a child’s gender confusion with life-altering treatments, were shut out. Her ideas have been validated to the extent that they are now similar to the policies of Britain’s Labor government. Yet Silicon Valley demonized Rowling’s views as too evil or misinformed to be allowed access to the nation’s digital town squares, setting them apart from the permissible posts of Iran’s mullahs and the digital publication of Hitler’s Mein Kampf.

Add to these conservative complaints of Silicon Valley’s promotion of inflexible DEI ideology that became a fetish of “woke” C-suites in corporations ranging from BlackRock to Disney, and you have all the elements of a building rage against big business from the right. As many conservatives reasoned, what better way to put these woke tycoons in their place than by using antitrust to break their dominance? There are even deeper cultural and social reasons behind the enthusiasm many on the right have for supporting progressive antitrust. This is best seen in the life and thought of another plain-spoken man elected to the U.S. Senate from Ohio, who carries Sherman’s concern about economic concentration into the 21st century – Vice President J.D. Vance.

Vance earned a law degree from Yale and a fortune as a venture capitalist in San Francisco. But those biographical details are deceiving. Vance’s character was formed in his early life as a child raised in a broken home in Middletown, Ohio, in a family of former Kentuckians plagued by substance abuse. He and his sister were raised by their grandparents, “Mamaw” and “Papaw.” After graduating from high school, Vance served with distinction in the U.S. Marine Corps in Iraq.

Vance became famous for recounting his early life in Hillbilly Elegy, a haunting memoir that became a national bestseller. It became, over time, a blue stater’s guide to MAGA America, chronicling the stoicism, chivalric ideals, and patriotism of people from Appalachia, side by side with their despair and petty vices. The strongest theme in his book is the bewilderment of hard-working men and women who watched as their jobs vanished and their incomes diminished, pushing them from the lower middle class into poverty and dependency. If they were able to find jobs, they saw their real wages and benefits shrink. As Vance grew up, the Reagan, Bush, Clinton, and Bush administrations lowered tariffs and signed free trade agreements around the world. These agreements coincided with the decline of low-value manufacturing, though much of the job loss appears to have been due to automation, not to foreign competition. This is unlikely to be true of trade with China. In 2000, Congress in 2000 passed a bill granting Permanent Normal Trade Relations to the People’s Republic of China. This gave U.S. businesses the confidence to go all-in on exporting jobs and importing cheap goods from China.

Cheap Chinese goods certainly helped consumers but undeniably harmed many U.S. workers. Two economists – Justin R. Pierce, serving the Board of Governors of the Federal Reserve, and Peter K. Schott of the Yale School of Management – found that granting China Permanent Normal Trade Relation status caused Chinese exports to the United States to balloon by one-third. Studies showed the obvious result: rising joblessness, reduced income, and greater reliance on social welfare programs in U.S. regions most heavily impacted by Chinese imports, particularly in parts of the United States where Americans were still making things. Pierce and Schott took this analysis one step further. They examined CDC data to map counties with high rates of “deaths of despair,” early deaths due to suicide, drug overdose, and diseases of the liver. When a map of these counties is overlaid on a map of the counties hardest hit by Chinese substitution of U.S. manufacturing, the match is almost perfect.

Such revelations are not lost on J.D. Vance and other new skeptics of 21st-century corporations and their agendas. Vance describes how, after the publication of Hillbilly Elegy, he met with billionaires in Sun Valley, Idaho. A self-made venture capital millionaire and bestselling author, Vance seemed to fit right in with that crowd. “Everybody loved me back then,” he said in an interview with The New York Times columnist Ross Douthat. “But I was seated next to the CEO of one of the largest hotel chains in the world at dinner. He was almost a caricature of a business executive, complaining about how he was forced to pay his workers higher wages.” The CEO complained about then-President Trump’s border closure and the higher wages it created. He pivoted to Vance: “Well, you understand this as well as anybody. These people just need to get off their asses, come to work, and do their job. And now, because we can’t hire immigrants, or as many immigrants, we’ve got to hire these people at higher wages.”

Vance told Douthat: “I literally grew up in a family where my grandmother was negotiating with the Meals on Wheels person to give her more food so that both of us could have something to eat.” No wonder he found himself in a state of unreality to find himself at this “Sun Valley billionaires boot camp.” Sen. Vance said: “The fact that this guy saw me as sympathetic to his problem, and not the problem of the workers, made me realize that I’m on a train that has its own momentum and I have to get off this train, or I’m going to wake up in ten years and really hate everything that I’ve become. And so I decided to get off that train, and I felt like the only way that I could do that was, in some ways, alienating and offending people who liked my book.”

For everyone Vance offended, he made more new friends and admirers. As a result, Vance climbed into the U.S. Senate by riding a populist, anti-corporate wave sweeping both parties. Vance says his journey has made him more open to the politics of the “Bernie Bros.” But it put him out of sync with Republican “center-right conservatives” and “center-left” liberals, who are doing very well, but “have an incredible blind spot about how much of their success is built on a system that is not serving people who they should be serving.”

Vice President Vance is among the most thoughtful of Republican leaders – former Sen. Marco Rubio of Florida, now Secretary of State, is another – who are examining how capitalism works and doesn’t work for Americans today. They are also coming to embrace the re-emergence of activist antitrust as an antidote to what they see as business practices that are crushing their constituents. Some Republicans are less thoughtful. Sen. Josh Hawley of Missouri has gone to the left of Lina Khan. Rep. Ken Buck of Colorado, recently retired, formed a strange bedfellows alliance with ultra-progressive Democrat David Cicilline, who had chaired the House antitrust subcommittee. Together, they advanced bills through the House Judiciary Committee in 2021 that would have forcibly changed the core business operations of Amazon, Apple, Google, and Meta in online markets, effectively turning their operations over to political control from Washington. That is not a surprising position for a progressive like Cicilline, but it was a strange quest for Buck, a self-described conservative from Colorado.

Even Vance, as a senator, edged toward Khan. He said that far from being “engaged in some sort of fundamental evil thing,” as some Republicans portray her, Chair Khan is one of the few Biden Administration appointees who is doing a pretty good job.”

Lina Khan’s cultivation of Khanservatives is the very essence of cognitive dissonance. When Lina Khan testified before the House Judiciary Committee, then-Rep. Matt Gaetz of Florida made sure photographers captured their grip and grin. He later interviewed Lina Khan on Newsmax. When Jonathan Kanter, the progressive antitrust chief of the Justice Department, testified on the Hill, Gaetz said, “I think you’re doing a good job, and that is a painful admission for me to have to make about anyone who works at the Department of Justice.”

To be a man or woman of the right once meant a belief in free markets, with regulation and government control reduced to a minimum. Republicans followed President Reagan in welcoming trade agreements with other countries, provided they were based on the president’s standard of “fair trade.” This is not true for today’s new right. Jonah Goldberg, in a recent take on the self-styled New Right Man, wrote that he is someone who “presupposes that everyone who likes capitalism and limited government is somehow to his left – which makes it fine to call them cowards and eunuchs … The irony here is that less than a generation ago, the idea that you could adopt liberal (i.e., statist) means for conservative ends was precisely the sort of idea that aroused so much condemnation of ‘big government’ and ‘compassionate’ conservatism from the right.”

The what’s-new-is-old-is-new again progressivism of Teddy Roosevelt is seeping back into the Republican mainstream. The exemplar of this is, once again, Sen. Josh Hawley, who conspicuously drapes himself in the mantle of TR. Not to be bound by old conventions like limited government, Hawley proposes massive increases in funding and the expansion of the FTC’s powers, while outlawing all large mergers and acquisitions, something that even Khan herself never publicly contemplated.

No less a conservative than Sen. Lindsey Graham of South Carolina has joined with Sen. Elizabeth Warren to create a federal commission to regulate social media. Graham would institute a new agency and regulator that would purportedly give Americans control over their personal data.[iii] While giving Mark Zuckerberg a heavy-handed regulator would give some conservatives emotional satisfaction, it comes at the cost of supercharging the government’s control of the market, the internet, and speech itself.

Lindsay Graham has long been one of the most grounded, if contrarian, voices for limited government on the Hill. It is a mark, perhaps, of how Silicon Valley’s social media censorship and other nettles and beestings deranged Republicans like Graham, driving a limited government, anti-woke leader in the Senate to support a bill that would make the imposition of woke content by big government an inevitability. Somehow, we as conservatives have forgotten the timeless principles of the free market, limited government, not to mention the wisdom of the Bill of Rights. As Jonah Goldberg notes, these old Republican principles “were, axiomatically, timelessly correct and therefore timelessly worth fighting for.” For the New Right, though, “it’s cowardly to keep fighting for them when the new priority is to fight for power as its own reward. Crushing your enemies – not persuading them – is another booby prize.”

Thus, a regressing, intellectual spiral has twisted principled conservatives from mounting an intelligent and constructive critique of how to ensure that changes in trade and technology support American workers and families, into becoming witless tools of progressivism. It gives us ridiculous spectacles like Sen. Hawley imitating Teddy Roosevelt and his “warrior republicanism,” fist-bumping his way up the San Juan Hill of antitrust while hawking his book, Manhood: The Masculine Virtues America Needs. It is a strange feature of our times that the same New Right Men who purport to be paragons of masculinity are so often the handmaidens of the Left.

There is no need for conservatives to reinvent themselves. The movement is better off returning to first principles – to defend the free market as the best way to promote competition and rising levels of prosperity. We must remind ourselves of the lessons of the previous century, especially the 1970s, that purported market failures, from oil shocks to inflation, were almost always the result of bad government policy. And we must stand firm against any official efforts to regulate speech in the name of curbing “disinformation.”

A free market in ideas is the lifeblood of a free market and a free society. As we will explore in more detail later, there are better, targeted ways to address internet content curation and censorship. Concerning the latter, the Trump Administration showed the way by rooting out and defunding parts of the federal government, such as the State Department’s Global Engagement Center. This center funded an international NGO that secretly advised advertisers to avoid supporting disinformation from outlets such as Reason magazine. The administration also closed the secret “jawboning” in which 80 agents of the FBI instructed Facebook and other social media platforms to remove unorthodox posts and deplatform conservative speakers. Another might be attaching a “user’s bill of rights” to Section 230, the law that grants social media companies liability protection for the contents of third-party posts.

But the Khanservative approach, of getting even with Mark Zuckerberg for Facebook’s censorship by enacting sweeping antitrust, is like detonating the policy equivalent of an atom bomb next to the CEO’s house. Sure, conservatives angry about censorship would have the emotional satisfaction of punishing their Silicon Valley bête noir. But much else would be destroyed in the process. In fact, everything else.

In the pages ahead, this book makes the case that otherwise thoughtful people are letting their anger at irritations, excesses, and hypocrisies in business – whether about social media censorship, or about billionaires and their yachts, or about hospitality CEOs who want unchecked immigration to bring down wages – to lead them to endorse an antitrust agenda that is designed to transform the U.S. economy into a socialist regime and the American constitutional order into something that would be unrecognizable to the Founders.

And by doing so, many conservatives are letting themselves be lured into welcoming socialism – even though its most prominent advocates proudly ride atop, not within, the Trojan Horse of progressive antitrust.