The sound of leather slapping marble will undoubtedly be the response of many Republican careerists today as they run from reporters and constituents wanting to ask questions about the stinging critique of President Trump by his former Vice President, Mike Pence, in a piece that is a shrewd call-back to Ronald Reagan: “A Republican Time for Choosing.” That piece, excerpted in The Wall Street Journal from Pence’s upcoming book, is a roundhouse punch of rhetoric, a philippic that catalogs the increasingly big-government populist agenda of the second Trump Administration.

Pence is sure to come in for attacks by the beehive of trolls and ghoulish influencers of the post-conservative populist right. But after reading this fact-based and well-reasoned piece, conservatives and Republicans should ask themselves: Do I really disagree with Pence?

Pence chronicles many—though by no means all—the ways in which Donald Trump’s personalistic agenda is antithetical to conservative principles.

“Where Mr. Trump once . . . wanted businesses to flourish in a free-market system, he brought about partial federal ownership of several corporations. Where he once wanted to engage with the world and lead, he has increasingly withdrawn from it and sought to isolate the U.S. from its longtime allies. Where he once defended free markets and expanded international trade, he embraced broad-based tariffs, protectionism and price controls on prescription drugs and credit cards.”

We would add that President Trump is firing off executive orders and ordering selective investigations to target political enemies—some of whom themselves were not adverse to misusing official powers against him—for possible prosecution. His regulators have pioneered new powers for the Federal Communications Commission and Federal Trade Commission by misapplying regulations and twisting rules to punish news organizations the president hates. They seem unconcerned that the next progressive administration will undoubtedly use these new powers to persecute conservative voices and outlets.

And this administration continues—without changing a jot or a tittle—the antitrust guidelines of President Biden and his FTC Chair, Lina Khan. Self-styled “Khanservatives,” from Vice President J.D. Vance to Sen. Josh Hawley, style themselves as Teddy Roosevelt-era progressives. The Missouri senator proposes vast expansions to the FTC’s powers and budget, and outlawing any mergers or acquisitions by large companies.

And these are the conservatives who call other Republicans “RINOs”?

At the heart of Pence’s critique is the distinction between principles and populism.

He writes: “Populists follow urges, not principles. They would erode our commitment to the Constitution and abandon U.S. leadership in the world.” Pence reminds us of a 2022 Truth Social post by Donald Trump justifying “the termination of all rules, regulations, and articles, even those found in the Constitution” to overturn what Trump called the “massive fraud” of the 2020 election.

This is the antipode of a conservatism that rests on a healthy skepticism of centralized authority and fierce opposition to personalized law. Conservatives recognize that free markets are not merely efficient mechanisms for producing wealth. They are also systems that disperse power, preserve individual liberty, and limit the ability of government officials to make economic decisions on behalf of millions of Americans.

The framework of conservatism is a governing philosophy rooted in constitutional limits, economic freedom, a strong national defense, and a recognition of human fallibility. Because people are imperfect, power must be constrained. Because government officials are no wiser than the citizens they govern (if that), decisions should remain as close as possible to individuals, families, communities, and markets.

Pence writes, “Rather than uphold American colonists’ rebellion against monarchical government, populism clamors for centralization to advance its version of the common good.”

Republican populism is progressivism in disguise. It strikes at us not just from a Democratic Party now wholly run by socialist progressives, but from within our own ranks, sparking a battle for the soul of the Republican Party.

This is a new reality but an old choice. In his “A Time for Choosing” speech, Ronald Reagan said:

“You and I are told increasingly that we have to choose between a left or right. There is only an up or down: up to man’s age-old dream—the ultimate in individual freedom consistent with law and order—or down to the ant heap of totalitarianism.”

Our choice is whether the GOP will be restored as the party of limited government, free markets, and constitutional principles, or continue to drift toward a form of populism that’s just a Trump-tinted version of what the other progressive party offers.

When the federal government sued Google for monopolizing online search functions, many assumed the outcome was inevitable. Google is huge. It dominates search. It pays billions to Apple and others to remain the default search engine on smartphones and browsers. With federal Judge Amit Mehta declaring Google a monopoly, this seemed like a watershed moment—like the crackdown on Microsoft’s exclusionary conduct in 2001, or maybe even the breakup of Standard Oil in 1911.

Judge Mehta ultimately decided that a breakup of Google would be overreach. But he did mandate that Google transfer data, syndicate results, and effectively assist competitors in building rival search products. Arguably, that remedy is a worse outcome—not just for Google, but for us all.

That ruling should alarm anyone who believes in market competition and even in private property. Google’s appeal of the district court’s ruling in the D.C. Circuit is a sharply written rebuttal of the monopoly charge; more importantly, it forces us to confront the twisting of American antitrust law into a means of giving government the ability to distribute intellectual property.

The foundational question is: Does antitrust law still protect competition on the merits, or has it become a tool for punishing commercial success and creating winners and losers in the marketplace?

Google’s brief is blunt in framing the issue in traditional terms. It argues that the company won because it built a superior product, anticipated the future better than rivals, and outcompeted them fair and square. The government, by contrast, increasingly treats success itself as suspect.

The distinction makes all the difference between a free-market system and businesses controlled (as progressive antitrust thinker Tim Wu famously said) by “the policeman at the elbow” of business.

For decades, American antitrust law has operated under the consumer welfare standard—the principle, championed most famously by my father Robert Bork, that antitrust exists to protect consumers rather than competitors. Under that framework, firms are not punished merely for becoming large or successful. The law condemns conduct that harms the competitive process itself: coercion, exclusion, collusion, predation, or restraints that reduce consumer welfare.

Google’s appeal is essentially a full-throated defense of that tradition.

The company argues that Apple and Mozilla chose Google because consumers overwhelmingly preferred Google Search. Apple executives testified that Google simply had the better product. Microsoft’s Bing, they said, was inferior and poor at monetizing advertising. In a similar vein, Mozilla’s experience switching Firefox’s default search engine from Google to Yahoo proved disastrous. Users disliked Yahoo and quickly migrated back to Google through other means. When was the last time you “binged” something? Well, perhaps there’s a reason for that.

That evidence matters because it cuts directly against the government’s central theory. If consumers actively prefer Google, and if Apple and Mozilla independently chose Google because it produced the best user experience and highest revenue, then what exactly was exclusionary about the conduct?

Google argues that nothing was.

The company insists the district court fundamentally confused competitive success with unlawful exclusion. Paying for default placement, Google says, is not inherently anticompetitive.

Companies compete for shelf space in grocery stores, preferred placement in retail chains, and advertising prominence all the time. Why should search engines be different?

Indeed, Google’s appeal repeatedly emphasizes that users remained free to switch search engines with a few clicks. Rivals were never barred from distribution. Apple and Mozilla could still promote competitors. Consumers could still download rival browsers or change defaults. Google merely won the competition to be the preset option because it offered the best combination of quality and revenue sharing.

Whether one ultimately agrees or not with that argument, it fits comfortably within traditional American antitrust doctrine. The government’s theory does not.

Increasingly, modern antitrust enforcement appears less concerned with consumer harm than with the structure of markets and the size of dominant firms. In this view, concentration itself becomes suspicious. Large companies are presumed dangerous not because they raise prices or reduce output, but because their scale allegedly limits future competitive possibilities.

That is a major departure from the consumer welfare framework that governed antitrust for nearly half a century.

More troubling still is the remedy imposed by the district court. Even if one accepts the liability ruling, the remedy goes dramatically beyond merely prohibiting certain contracts.

It confiscates and shares intellectual property, smacking of state-managed industrial policy. The distinctively American separation of government and commerce is one of the reasons our great nation has the world’s foremost economy. The absence of that separation is the story of why Europe lags behind, why China is faltering, and why the Soviet Union bankrupted itself.

Antitrust law historically sought to preserve competition, not redistribute the fruits of successful innovation. Yet the Google remedy increasingly resembles compulsory technology transfer. Google spent decades and billions of dollars developing search infrastructure, indexing systems, monetization tools, and user data feedback loops. The court now proposes forcing Google to share those assets with rivals who failed to build comparable systems themselves.

It begins to look less like antitrust enforcement and more like confiscation to advance a digital industrial policy, if not outright economic central planning.

The most remarkable aspect of the ruling may be its extension into artificial intelligence. The district court’s remedy reaches beyond traditional search into generative AI products such as ChatGPT and other emerging systems – technologies that barely existed during the period covered by the lawsuit. It is already a crowded landscape filled with competitors ranging from Big Tech hyperscalers to large and growing independent “frontier” companies. Not only was government assistance not needed to create this vibrant competition, aggressive and early intervention by government would probably have prevented it.

Lacking humility, regulators are now attempting to shape the future AI marketplace before it has even fully formed. This is where the broader philosophical stakes become impossible to ignore.

America became the world’s innovation leader not by guaranteeing equal outcomes among competitors, but by rewarding companies that innovated better, moved faster, and served consumers more effectively. Under the traditional model, firms that succeeded through superior products were celebrated, not dismantled.

If offering the best product, winning voluntary distribution agreements, and attracting overwhelming consumer preference can itself become evidence of illegality, then the center of gravity in American antitrust law has jerked violently leftward. Antitrust ceases to be a shield for consumers and becomes instead a mechanism for managing economic outcomes.

That is not merely a legal change. It is a philosophical one.

And it may determine whether the next generation of American innovators sees success as something to pursue—or something regulators will eventually punish.

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

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Perhaps the word “liberal” needs to be retired. Its worn plasticity is reason enough to render it shapeless and meaningless. Could the same also be said of the word “conservative”?

“Liberal” denoted classical free-market economics, ranging from Adam Smith’s invisible hand, only lightly restrained by regulation, to the hands-off approach of laissez-faire libertarianism. In the New Deal era, it came to mean government-directed capitalism and Keynesian stimulus. Now it is largely derived to describe people who are not liberal in any sense but veer toward Marxist-inflected statism in politics and economics.

But the “conservative” alternative is also increasingly indistinguishable from the “liberal” one.

This is the abiding concern of The New Paradox: Antitrust and Conservative Socialism, in which Robert H. Bork Jr. and Mark W. Davis attempt something as provocative as it is ambitious. They defend the classical liberal foundations of American antitrust law not just against the progressive Left, but also against an emergent strain on the Trumpian Right. Their central claim is as counterintuitive as their title suggests: that parts of the modern conservative movement are drifting toward what they call “conservative socialism,” using the tools of antitrust not to protect competition but to punish disfavored firms for political ends and bring business under the thumb of regulators, what Biden’s progressive enforcer Tim Wu calls “the policeman at the elbow.”

The book’s title is a play on The Antitrust Paradox, the foundational work by one of the author’s father—Robert Bork, jurist and legal scholar—who famously reoriented antitrust doctrine around the consumer welfare standard. Bork argued that the purpose of antitrust law is to promote efficiency, which protects the welfare of consumers, not lesser competitive firms seeking to shield themselves from competition.

Bork Jr. and Davis argue this consensus—adopted by the US Supreme Court in 1979, one year after the book’s publication—is now under threat from two political directions. The threat from the left is the firebrand progressive antitrust movement, championed by Biden’s Federal Trade Commission Chair Lina Khan. The other threat is a surprise, the often-overlooked radicalism of the “Khanservative” imitators of Khan within the new Right, self-described conservatives who have continued the statist, government-central merger guidelines of the Khan era without changing a dot or tittle. The authors warn that both antitrust movements are addicted to power, sharing a willingness to weaponize antitrust for political or cultural objectives rather than economic ones that would benefit consumers.

The authors contend that feigned outrage at “Big Tech” has led Khanservatives to embrace expansive antitrust enforcement out of pique against censorship of speech. Bork and Davis frankly admit that large social media platforms did censor, deplatform, and shadowban conservative speech during the Biden administration. But they argue that this censorship was largely driven by secret programs of the Biden White House, which dispatched 80 FBI agents to intimidate Meta and other highly regulated companies into censoring conservative speech.

While conservatives have every reason to be sore, Bork and Davis argue that Khanservatives overcorrect, continuing the antitrust suits and progressive legal theories of Lina Khan out of sheer pique and political animus. While Big Tech is the favored target of both Khan and the Ferguson-Meador team, the rules being cemented in place by regulators of both parties is turning antitrust into a form of industrial policy, precisely what earlier generations of conservatives rejected.

Worse, Ferguson and Federal Communications Commission Chairman Brendan Carr are taking government intervention to an extreme that even Lina Khan did not dare. They are weaponizing the government’s merger authority in an attempt to control speech and journalism. Example: Carr threatened to derail Paramount Global’s merger with Skydance Media if CBS News, owned by Paramount, did not settle President Trump’s lawsuit over how it edited an interview with then-Vice President Kamala Harris. This was a nuisance lawsuit, asserting an injury over the editorial judgment of a news organization. In the hands of Carr, however, it was a live threat to a major business deal. As soon as Carr’s tactic extracted $16 million from CBS, Carr suddenly dropped any objections to the merger.

For his part, Andrew Ferguson is pioneering the use of “terms and conditions” of news apps like Apple News to assert a right to enforce what he considers more balanced coverage. Carr recently followed up by threatening to pull the broadcast licenses of network affiliates if they don’t provide more balance in their coverage of the Iran War.

Bork and Davis write:

It is understandable why conservatives savor the schadenfreude of CBS’s discomfort, a network that frequently vilifies the right; or want to discomfort Apple News, which doesn’t include posts from Breitbart or National Review. But make no mistake—this is a base act of state censorship, an abandonment of principle and the Constitution. In this way, conservatives used government antitrust power to force a government-mandated “fact check” of a news organization and intimidate its corporate owner for speech. This is not only unprincipled. It is also supremely stupid. If Carr and Ferguson succeed in pioneering new ways to use regulatory power as a threat to punish speech, they will have created a regulatory power certain to be used against conservative media and organizations by the next progressive administration.

“What he [Carr] said there is dangerous as hell,” Sen. Ted Cruz said, comparing the attraction of the power to censor opponents to the evil temptation of the ring in Lord of the Rings. “Going down this road, there will come a time when a Democrat wins again, wins the White House . . . they will silence us.”

Bork and Davis follow up on this warning:

Imagine if Lina Khan returns to the FTC chairmanship under the next Democratic president. Could she similarly threaten the nonprofit Media Research Center—the conservative watchdog of mainstream media foibles that spotted Apple News’ biases—with being ‘deceptive’ because it has a given slant? Could she drag Fox News, Newsmax, Breitbart, and National Review through costly investigations for ‘violating reasonable consumer expectations’ for not reporting the approved line on climate change? Could the next progressive to chair the FCC use regulatory authority to extract payments for editorial decisions in how they cover Democrats?

Bork and Davis conclude that this unprecedented enablement of government power over speech and journalism is not just unprincipled but “ideological suicide.”

This willingness of Bork and Davis to critique the Right from within gives it intellectual bite. The authors consistently return to their core ideas—that consumer welfare should be the lodestar of antitrust and that true conservatives should return to the rule of law and institutional restraint.

The New Paradox is a sharp, necessary critique of a new Right that is ceasing to be on the Right. The real danger to antitrust, they argue, is not overenforcement or underenforcement but the loss of principle itself.

* * *

Rick Amato is a former financial adviser for Merrill Lynch and founded the Amato Wealth Management Group. He hosts Politics and Profits with Rick Amato.

This review was first published in American Greatness.

Enjoy!

Your father, Robert Bork, Sr, was such a significant figure in American legal history—looking back now, what do you think he understood about the direction of the country that feels especially relevant today?

My father understood something that I think we are only now fully rediscovering—that the greatest threat to a free society doesn’t usually come in the form of open confrontation with the Constitution, but in its gradual reinterpretation to serve political ends.

He saw very clearly that when judges, regulators, or political actors begin to substitute their own values for neutral principles, whether in constitutional law or in economic policy, you don’t just get bad decisions, you get a breakdown of the rule of law itself. The system stops being predictable, and it starts becoming discretionary. And discretionary power is where liberty goes to die.

What feels especially relevant today is his warning that this wouldn’t stay confined to the courts. Once the idea takes hold that outcomes matter more than principles, it spreads—to administrative agencies, to antitrust enforcement, to corporate governance. You begin to see law used as a tool to engineer social or political outcomes rather than to protect a neutral framework for competition and freedom.

In antitrust, for example, he was very clear: if you abandon the consumer welfare standard in favor of vague political goals, whether that’s fairness, industrial policy, or social objectives—you open the door to arbitrary enforcement. And once enforcement becomes arbitrary, it becomes political.

I think he would look at the current moment and say: this is exactly the trajectory I warned about—not because any one policy is catastrophic, but because the underlying discipline of neutral principles is eroding.

And once that discipline goes, it’s very hard to get it back.

Your new book, The New Paradox, addresses conservative socialism. What is conservative socialism?

Conservative socialism is the idea that you can use the tools of government—regulation, antitrust enforcement, industrial policy—not just to protect markets, but to direct them toward preferred social or political outcomes, while still calling that “pro-market” or “pro-American.”

It’s a paradox because it comes from the right. Traditionally, conservatives argued for neutral rules, limited government, and letting competition determine outcomes. But what we’re seeing now is a shift—some on the right are becoming comfortable using state power to shape markets: picking winners and losers, punishing disfavored companies, or steering capital in the name of national strength, cultural goals, or fairness.

At that point, you’re no longer defending capitalism, you’re managing it.

And the danger, which my father warned about in a different context, is that once you abandon neutral principles—like the consumer welfare standard in antitrust—you don’t get better outcomes, you get more discretion. And more discretion means more politics.

So “conservative socialism” isn’t just a label—it’s a warning. It’s what happens when the right adopts the means of the left, even if it believes it’s pursuing different ends.

Having had a front-row seat to your father’s life and career, is there anything about him that the public didn’t fully understand—but you think they should have?

I think what the public often missed was how deeply principled—and actually how restrained—he was.

He was portrayed as a kind of ideological figure, someone eager to impose his views. But the reality was almost the opposite. What drove him was a belief that judges and policymakers should not impose their personal preferences. He believed in discipline — in sticking to neutral principles even when they led to outcomes you might not personally like.

That’s a harder position than it sounds. It requires a kind of intellectual humility that’s rare in public life.

The other thing people didn’t fully appreciate was his sense of humor and his warmth. He could be very funny, very human, and very aware of the absurdities of the moment—even at the height of the confirmation battle. That part of him didn’t really come through in the public narrative.

And finally, I think people underestimated how forward-looking he was. Many of the debates we’re having today—about the role of courts, the politicization of law, the use of economic regulation to achieve social goals—he saw coming decades ago.

So, if there’s one thing I wish people understood better, it’s this: he wasn’t trying to shape the country in his image. He was trying to preserve a system where no one gets to do that.

You are the President of the Antitrust Education Project; can you tell us more about this?

The Antitrust Education Project is a nonprofit dedicated to promoting sound, economics-based antitrust policy—what I would call the consumer welfare approach.

Our core mission is educational. We work to explain why antitrust law should focus on protecting competition and consumers—not be repurposed as a tool for broader political or social objectives. That includes engaging with policymakers, supporting research, filing amicus briefs where appropriate, and helping elevate serious scholarships in this space.

Right now, there’s a real risk that antitrust is being pulled away from objective standards and toward more discretionary, politically driven enforcement. We think that’s a mistake—not just economically, but legally—because it undermines predictability and ultimately harms consumers.

So, what we’re trying to do is bring clarity and discipline back into the conversation. Not ideology—discipline. The idea that antitrust should be grounded in evidence, economics, and the rule of law.

Where do you see signs of conservative socialism within the Trump administration?

I think you see elements of what I call “conservative socialism” in the willingness to use state power to shape market outcomes—often in ways that depart from traditional, rules-based conservatism.

Take trade policy under Donald Trump. The use of tariffs wasn’t just about addressing discrete unfair practices; it became a broader tool to steer industrial outcomes—effectively deciding which sectors should be protected and which should bear the cost. That’s a form of government-directed market shaping.

You also see it in antitrust rhetoric. There were moments where enforcement—or at least the threat of it—appeared tied to concerns about the speech or political posture of large technology firms. Once antitrust becomes a lever to discipline companies for non-economic reasons, you’ve moved away from neutral principles and toward discretionary power.

Another area is industrial policy—efforts to favor domestic production or particular industries not just for national security, but as a general economic strategy. Again, the question isn’t whether any one policy is justified, but whether you’re normalizing the idea that government should be actively directing private economic outcomes.

And that’s really the thread: when you move from setting the rules of the game to influencing the results of the game, you’re no longer just defending markets—you’re managing them.

That’s what I mean by conservative socialism.

What is the job of antitrust regulators?

At its core, the job of antitrust regulators is to protect competition—not competitors, and not political outcomes, but the competitive process itself.

That means preventing conduct that harms consumers: things like price-fixing, collusion, exclusionary practices that block rivals unfairly, or mergers that would likely reduce competition and lead to higher prices, lower quality, or less innovation.

The key point—and this is where my father was very clear—is that antitrust is supposed to be grounded in objective, economically coherent standards. In the United States, which has traditionally meant the consumer welfare standard: are consumers better or worse off as a result of a given practice?

Agencies like the Federal Trade Commission and the Antitrust Division are not supposed to be referees of fairness in some broad social sense, and they’re certainly not supposed to be tools for advancing political agendas. Their role is narrower—but also more important: to enforce clear rules that keep markets competitive and predictable.

When they do that well, you get lower prices, better products, and more innovation. When they move beyond that—when they start trying to engineer outcomes—you risk turning antitrust into something arbitrary and political.

And once that happens, you don’t just lose economic efficiency, you lose the rule of law in this area.

What was the Biden administration’s approach to antitrust and is this approach different under President Trump?

The Biden administration took what I would describe as a structural and ideological shift in antitrust. Under leaders like Lina Khan at the Federal Trade Commission and Jonathan Kanter at the Antitrust Division, there was a move away from the traditional consumer welfare standard toward a broader set of goals about market structure, concentration, labor effects, and even political power.

That translated into more aggressive merger challenges, skepticism of large firms as such, and a willingness to bring cases that might not have succeeded under the prior, more economic-driven framework. You also saw a greater openness to using antitrust as part of a larger effort to reshape markets, not just police them.

Now, under Donald Trump—at least in his earlier term—you saw something different in tone but not always in direction. On paper, there was more rhetorical support for traditional antitrust principles. But in practice, there were moments when enforcement risked becoming politicized in a different way, particularly in how large technology firms were discussed.

So, the contrast isn’t as simple as “one was aggressive and the other was restrained.” The Biden approach was more openly transformative—explicitly rethinking the goals of antitrust. The Trump-era approach was less ideologically systematic, but at times showed a willingness to use antitrust or regulatory pressure in a more ad hoc, politically inflected way.

And that’s really the point I make in The New Paradox: both approaches, in different ways, risk moving away from neutral, rules-based enforcement. One does it in the name of restructuring markets; the other can do it in the name of reacting to perceived political or cultural concerns.

The common danger is the same—greater discretion, less predictability, and ultimately a more politicized antitrust regime.

Can you talk about President Trump’s antitrust regulators and the plight of CBS News and Skydance media, as chronicled in your book, The New Paradox?

What I argue in The New Paradox is that the Trump-era approach to antitrust, while not ideologically coherent in the way the Biden approach is, still revealed something important—and concerning—about the direction of policy.

If you look at leadership at the Antitrust Division under Makan Delrahim, there was, in many respects, a return to more traditional, economics-based analysis. Delrahim, for example, emphasized vertical merger guidelines and tried to ground enforcement in established doctrine.

But at the same time, there was a broader political environment under Donald Trump in which large media and technology companies—particularly those perceived as hostile—were openly criticized and, at times, implicitly threatened with regulatory scrutiny.

The CBS–Skydance situation, as I describe it in the book, becomes illustrative of that tension. When transactions involving major media entities like CBS News and Skydance Media are viewed through a political lens—whether fairly or not—you introduce uncertainty into what should be a legal and economic analysis.

And that’s the key point: antitrust enforcement depends on credibility. It has to be seen as neutral, predictable, and grounded in law and economics. Once market participants begin to believe that outcomes may turn on political considerations—who you are, what you say, or how you’re perceived, you’ve already weakened the system.

So, the lesson I draw isn’t that Trump’s regulators abandoned economics across the board—they didn’t. It’s that even a partially politicized environment can undermine confidence in the neutrality of enforcement.

And once that confidence erodes, you don’t just get different outcomes, you get a different kind of system.

We know that the IRS was weaponized in the past for its’ treatment of conservative groups as well as social media censorship. Is censorship a problem from the right side of the aisle also?

I think the honest answer is yes—censorship, or pressure on speech, is a risk from any direction once you accept the premise that power should be used to shape outcomes rather than protect neutral principles.

We’ve seen well-documented concerns on the left—whether involving government pressure on platforms, or the treatment of certain groups by agencies like the IRS. Those episodes raised serious rule-of-law issues.

But the right is not immune to the same temptation. You’re now seeing calls from some conservatives to use government power—whether through regulation, antitrust, or platform mandates—to discipline or control the behavior of large technology companies based on their perceived bias or speech policies.

At that point, the justification changes, but the mechanism is the same: government pressure influencing private speech.

And that’s really the line that matters. A free society depends on the idea that the government doesn’t get to decide which viewpoints are favored or disfavored—directly or indirectly. Once you open that door, it rarely stays confined to one side.

So, my view is consistent with the broader theme of The New Paradox: the danger isn’t just what one side is doing, it’s the erosion of neutral principles that restrain everyone.

Because once those restraints weaken, the tools of censorship become available to whoever holds power next.

Are you optimistic or pessimistic about America’s future?

I’m cautiously optimistic—but only if we’re honest about the risks.

The United States has an extraordinary capacity for self-correction. We’ve gone through periods before when institutions were strained, where legal principles were bent, and we’ve found our way back. That resilience is real.

But what gives me pause is that many of the pressures we’re seeing now—whether it’s the politicization of law, the erosion of neutral principles, or the growing comfort with using government power to shape outcomes—are coming from multiple directions at once. That’s new. And it makes course correction harder.

So, my optimism isn’t automatic. It depends on whether we’re willing to recommit to first principles: the rule of law, limits on government power, and the idea that the system should be neutral, not outcome driven.

If we do that, I think the country’s future is very strong.

If we don’t, then the risk isn’t some dramatic collapse, it’s a slow drift into a more discretionary, more politicized system.

And history suggests that once you drift far enough in that direction, it’s very difficult to turn back.

Europe is failing, perhaps dying. And it wants us to die with it.

Europe’s decline is partly based on demographics. Women in the European Union are having fewer children, well below the replacement rate, creating ghost towns in Tuscany and leaving factories idle in Germany. The most talented European youth and energetic entrepreneurs, from Budapest to Paris, are stymied by overregulation, crushed under strict hierarchies and credentialism that border on a caste system.

The results of Europe’s stultified society are evident in Mario Draghi’s report on European competitiveness. The former Italian Prime Minister found that 30 percent of European startup businesses that become “unicorns,” those growing to more than €1bn in valuation, move abroad. The vast majority of European unicorns emigrate to the United States.

This happens because a skein of regulations, restrictions, and high taxes imposed by Brussels and London is choking the innovation of European youth and the prospects for economic growth. Fifteen years ago, the European economy was 10 percent larger than that of the United States. By 2022, the U.S. economy had grown by 72 percent. China’s economy had grown by almost 300 percent. The European Union grew over this time by only 21 percent.

As result, the European economy is now 23 percent smaller than that of the United States. This is the result of a deliberate and vitiating embrace of progressive regulatory theories like those embraced by Khan and Khanservatives. Rep. Scott Fitzgerald, a Republican from Wisconsin, captured the essence of global economic trends: “America innovates, China replicates, and Europe regulates.”

As Europe fails, the Eurocrats in Brussels have chosen not to find ways to liberate the innovation of youth and the animal spirits of their entrepreneurs. They have, instead, chosen to dedicate their energies to the regulation of wealth instead of wealth creation. They have especially embraced antitrust policy as a way to degrade and perhaps destroy U.S. competitiveness. Europeans now have the mindset of the proverbial Russian peasant who would rather kill a neighbor’s cow than buy milk from that neighbor, or better yet, invest in a calf.

It is easy to see how Europeans, with progressive ideology, got themselves into this mental cul-de-sac. The mystery is why so many Americans on the left and increasing numbers on the right are supporting this economic warfare against American business, jobs, and consumers.

Criminalizing American Innovation

The main targets of Europe’s ire are America’s most innovative companies – Apple, Alphabet/Google, Amazon, Meta Platforms/Facebook, Nvidia and other technology leaders. Many European regulators, like much of the blogosphere, see these companies as if they were nothing but the playthings of a few billionaires. But America’s technology sector is the nation’s sharp edge in global leadership in business and a core driver of our national defense. Tech employs almost 10 million people in the United States. It generates hundreds of billions of dollars in returns annually to the portfolios of tens of millions of U.S. retirees.

These companies provide the bulk of our nation’s research and development. Alphabet (Google) invested more than $45 billion in R&D in 2023, Meta almost $40 billion, Apple $30 billion. Amazon invested a whopping $85 billion into research and development in that year. The pharmaceutical company Merck directed $30 billion into creating life-enhancing and life-saving compounds. These companies operate as venture capitalists, encouraging the larger ecosystem of small innovative startups whose founders hope to be acquired by a large company that can commercialize their discoveries and make them billionaires. It’s a powerful incentive program and it has maintained the status of the United States as the world’s technology leader since the 1990s.

Europe has a meager tech ecosystem. It has no equal to Apple, no “Pomme,” or any other European company with the stature of an American Big Tech companies. Rather than look within to understand Europe’s failure, as Draghi did, European regulators have convinced themselves that the success of these American companies can only be attributed to some form of competitive predation. If these American companies are so big and successful, it must be due to abusive monopolies. So slaughter their cow!

The European Union’s blade is the Digital Markets Act, that targets the major “gatekeepers” of the digital economy – the providers of online search engines, app stores, and messenger services. China’s ByteDance is the only one of the EU’s current targets to be defined as a gatekeeper that is not American. The others are the usual suspects – Alphabet, Amazon, Apple, Meta and Microsoft.

The European Parliament also passed the Digital Services Act, a rule to strengthen consumer privacy. The practical effect of these two laws together is to require gatekeepers, a.k.a. American tech companies, to allow third-parties, including competitors, to interoperate with their services. They forbid these American companies from preferencing their own services and products over those of competitors and other third parties.

The new laws have some neutral and arguably beneficial consumer aspects, such as allowing advertisers to verify the results of their ads, and expanding the privacy rights of consumers. But overall, the Digital Markets Act would evaporate the profit centers of U.S. tech. In essence, European law says to American technology companies – quit being businesses! European regulation threatens to transform major U.S. social media platforms into so many versions of low-profit Reddits at best, and into regulated public utilities at worst.

The draconian nature of the new regime can be seen in the EU’s treatment of Meta, the owner of Facebook and Instagram, which was hit with a €200 million fine in April 2025. Meta had responded in 2023 to the Digital Markets Act by creating a pay-or-consent model. This model offered European users of Facebook and Instagram the option of giving their explicit consent to be tracked in exchange for a free service funded by ad revenues, as is the case in the United States. Or European users could have chosen to step out of that model and pay a modest sum for an ad-free service.

The “pay or consent” option was a major restructuring of Facebook’s European business. It went into effect without official feedback. Then the EU ruled that giving such a choice to consumers to be a violation of the Digital Markets Act, and levied its massive fine on Facebook for its good faith attempt to comply with the law. Facebook was then told by Europe to offer a free service with no way for the company to support it.

Thus new EU law utterly disrupts how U.S. companies exchange free services (like Facebook) for being able to monetize the user’s data (employing anonymized IDs to match ads of interest in one’s feed). It is being forced to deny consumers the option of providing a paid alternative. The EU’s fines on Meta are now close to €1 billion.

This is just one of the ways the European Union is determined to enforce its Digital Markets Act to outlaw the basic business models that made Apple, Google, Meta, Microsoft, and Amazon America’s most innovative companies. They are now explicitly targeted by this law as digital “gatekeepers” in need of wholesale restructuring into social media utilities.

If this still strikes you as hyperbolic, consider what the EU is doing to Apple.

Apple has invested more than $100 billion in recent years to produce products that are seamlessly and safely linked, providing levels of security and privacy valued by consumers worldwide. Central to Apple’s success is the willingness of developers to create new apps with powerful capabilities for Apple customers. But Apple enforces conditions on developers. They are granted a degree of access to Apple systems, but not so much that they can steal Apple’s proprietary algorithms or – most importantly for antitrust – access and exploit user data.

For example, when developers create apps that rely on sound, Apple requires them to ask users for their permission before accessing their microphones. If developers want to record audio, they also must get explicit permission. Similar guardrails are in place for apps used for banking, gaming, and a variety of content and services. Developers can access Apple’s Touch ID, but they cannot access data in the Secure Enclave inside the iPhone. Not even Apple can access it. Apple could be likened to a bank that will allow access to a vault room, but won’t allow rifling through safety deposit boxes.

Taken literally, the law’s demand for “interoperability” with developers and competitors attempts to force Apple to throw open the safe deposit boxes and expose consumers’ most sensitive data. The EU mandate would allow access to consumers’ communications over iMessage – whether 6-digit codes texted by banks, Wi-Fi passwords, or personal communications. Also at risk is data on AirPlay, CarPlay, and Siri. Every message, email, phone call, image, and calendar will be potentially exposed to myriad developers, sure to be exploited and likely to be resold on the international market. Thus, Europe, in the name of protecting consumers, is forcing the exposure of users’ data, commoditizing it in the name of interoperability. It is a virtual certainty that some buyers will be cut-outs for China. As the FBI has warned, China “uses elaborate shell games” and overweight voting rights to control companies without tipping off its real ownership.

What is Apple’s crime? Apple was accused of not allowing app developers to steer customers to alternate platforms owned by competitors. In other words, Apple is being told to provide a platform for competitors – and pay for it. This is not unlike walking into a shop and telling the shop owner to allow his competitors to set up booths in his store. This intrusion threatens the carefully cultivated culture of Apple. That company’s appeal to consumers rests on its curation of a high-quality store for its apps. Steve Jobs, as Apple’s founder and creator, was especially adamant that Apple would keep pornography out of its shop. But European regulators, knowing better, forced Apple to admit a competitor, AltStore. Now, thanks to the EU, European customers of the iPhone or their children can access curated pornography from across the web thanks to AltStore’s HotTub app.

Apple, along with Meta, was an early target of Digital Markets Act fines. The European Commission slapped Apple with a €500 million Euro penalty, despite Apple’s strenuous efforts to comply with the law. European regulators said that Apple must remove technical and commercial restrictions that prevent app developers from steering users to cheaper deals outside the App Store. Apple complained: “We have spent hundreds of thousands of engineering hours and made dozens of changes to comply with this law, none of which our users have asked for. Despite countless meetings, the Commission continues to move the goal posts every step of the way.”

Microsoft came under investigation for its Teams collaboration video and chat software on its Microsoft 365 platform. What raised European suspicion? Microsoft was accused of being a moral monster for packaging a new product with other of its products and for trying to entice consumers to adopt them. Thus, practices that are perfectly normal for most European, “non-gatekeeper” companies are somehow considered malevolent tying when American tech “gatekeeper” companies employ them.

Not only is Europe challenging the business model of America’s leading companies, under Europe’s new Digital Markets Act, these companies can be hit with fines that threaten their very existence. This may not sound credible, given the size of U.S. Big Tech companies. But consider: Fines are not levied on an American company’s profits in Europe. The DMA’s penalty is a 10 percent fine imposed on an American company’s turnover or revenues – worldwide. A second infraction elicits a 20 percent fine of an American company’s worldwide revenues. Meta CEO Mark Zuckerberg told Joe Rogan that Europe has fined U.S. tech companies more than $30 billion.

Winding up for the monumental fines of the DMA, the Dutch Data Protection Authority, acting under the auspices of the DMA, last year fined Uber $324 million for transferring some customer data to servers in the United States during a time when the company’s obligations were unclear after the European Court of Justice had struck down the U.S.-EU Privacy Shield Agreement. Meta was fined $1.3 billion for a similar infraction. These massive fines were imposed despite no violation of the privacy of a single European. Fines of such magnitude bleed off money that could be better spent on innovation and more product choices for consumers.

You might think that regulation in the United Kingdom after its Brexit departure from the EU would sure be more rational. Oddly, the withdrawal from the EU did not stop Britain – for years under supposedly market-friendly Tory prime ministers – from internalizing the progressive ideology of the EU. Consider how the UK’s Competition and Markets Authority (CMA) stepped in to prevent Meta from acquiring a company called GIPHY, which provides the limited function of searching for short, GIF-like files with limited movement. Why did the British CMA intervene to block this merger? It claimed a loss of competition in the U.K. ad market. British regulators, however, suppressed facts, including the most telling one of all: GIPHY had failed to sell a single ad in the U.K. market.

Why is Europe out to wreck America’s leading companies? It seems to be out of a mixture of progressive thinking and anti-Americanism. Consider: In the first quarter of 2024, the largest seller of smartphones in Europe is Samsung, with 37 percent of the market. Add to that China’s Xiaomi market share, and the two Asian giants have a combined 53 percent share of the European smartphone market. And yet it is Apple’s 22 percent share in Europe that somehow defines it as a “gatekeeper” in need of radical restructuring. These latest fines for violating the DMA are eye-popping, but they continue an anti-American trend that has resulted in roughly $8.7 billion in fines imposed on another top American innovator, Google, over the past decade.

President Trump calls his stream-of-consciousness rhetorical style “the weave.” Conservatives should pay more attention to the president’s ideological style, a weave between conservative free-market and constitutional principles, and major steps into state-run capitalism, the crass use of regulatory authority to punish speech, and executive orders that bludgeon individuals and groups for their politics.

We acknowledge and celebrate the president’s big wins — closing the border, lowering taxes, stripping away deadweight regulation, and unleashing America’s energy might. These bright spots (and some are very bright) cannot distract us from the way in which Trump is erecting a guillotine for those who still value free speech and free enterprise, shielded from government control.

Charles Dickens called that execution machine introduced by the French Revolution “the National Razor which shaves close.” Conservatives especially should prepare themselves for a very close shave when the Democrats return to power. The Democrats are ever more dominated by far-left progressives, certain to use this weapon against conservatives and whatever remaining center-left Democrats when they are back in the White House. This is not a guess but a straight-line extrapolation of their behavior.

A few examples: During the Biden administration, social media platforms were pressured into censoring and shadow-banning conservative speech. Biden’s people funneled taxpayer money through a State Department “Global Engagement Center” to a London-based NGO that scared advertisers away from right-leaning American media, including such dangerous entities as Reason magazine.

The Biden administration encouraged corporate ESG, DEI, and the replacement of equality with “equity.” They appeared unconcerned (or worse) that academia — long a home for leftist and sometimes ultra-leftist orthodoxy — became arenas for struggle sessions among dissenters that had a way of ending unhappily. President Biden continued to forgive student-loan debt despite the U.S. Supreme Court’s ruling it unconstitutional, and coerced U.S. automakers into making electric vehicles that Americans didn’t want and couldn’t afford.

President Trump ran in 2024 promising to set a new course. Since he came into office, this has not always been so.

For example, Trump’s Federal Trade Commission chairman, Andrew Ferguson, sent a “warning letter” to Apple CEO Tim Cook, threatening him over Apple News’ curation of news sources. “The FTC is not the speech police,” Ferguson proclaimed, saying he acted only because Apple News’ choice of sources violated its terms and conditions. Yet a close reading of those terms explicitly disclaims responsibility for content accuracy.

That’s an argument not too far removed from one made by Tim Wu, a major critic of Big Tech in the Biden White House, who recently penned a piece in the New York Times arguing that social media isn’t just speech but is instead “a defective, hazardous product.” As the Trump administration evolves, the arguments of Carr and Ferguson in favor of enforcing consumer protection standards against First Amendment activities dovetail with those of Wu. The right and the left are beginning to agree that speech is a product that should be regulated, not a fundamental right that must be protected.

The president has also attacked the First Amendment directly by leveling executive orders against law firms with former partners or associates who had worked against him. By threatening to cut off their access to security clearances and federal buildings, including possibly courthouses, the president has extracted promises of nearly a billion dollars’ worth of pro bono legal work for his favored causes.

In business, the administration is mixing public monies with private investment. Among other examples, the government obtained a minority stake in Intel and a so-called “golden share” of U.S. Steel, extracted cuts of international sales by Nvidia and AMD in return for relieving export controls, and crafted bespoke policies to guide the business strategies of corporations. The president has personally demanded the removal of the Intel CEO and a Netflix board member. At times, he has seemed to act as a sort of corporate director, laying the foundations for state capitalism. As we have seen from earlier incarnations of industrial policy — from U.S. Steel to Solyndra, and in China today — the politicization of capital always distorts markets and ends in tears.

The administration’s antitrust policy also seems to be taking a statist turn. For almost half a century, antitrust policy has been guided by the “consumer welfare standard,” which takes the politics out of regulatory enforcement by evaluating mergers and acquisitions based on their impact on consumer prices, choice, and innovation. Inexplicably, President Trump’s antitrust regulators failed to restore this modest standard. Instead, they retained the merger guidelines of the progressive antitrust regime of Biden’s progressive FTC chair, Lina Khan. The result is a hybrid “America First” antitrust policy that sounds conservative but, like the approach adopted in the Biden-Khan era, embraces the use of antitrust to direct the economy from Washington.

Donald Trump could have been the restorer of free markets. Instead, his administration is institutionalizing mechanisms that Washington can use to meddle in the operations of private business.

The president’s defenders will respond that the left has proven ruthless and lawless in its quest to maintain and expand power — a case only strengthened by the recent menacing comments by Democratic strategist James Carville. They argue that a Republican president who truly would be “the restorer of free markets” might be committing unilateral disarmament, a defeatist and largely nonsensical argument that ignores the extent to which the protection of free markets can be reinforced both legally and institutionally. (To be fair, this effort would require a more active Congress than we have at the moment.)

True unilateral disarmament would be leaving tools on the table that the left would likely use in a far more hostile manner. For conservatives, from a practical point of view, smoothing the pathways of predatory power will only allow Democrats to complete the job in the future, while undercutting Republicans’ moral authority to fight back.

Although these dangers are real, such partisan considerations risk overlooking the greater peril: If both parties finally give up on free-market capitalism and limited government, then it really does not matter much which party is in power. The differences would no longer be quite so ideological, but cultural and tribal. A conflict between two parties unmoored from what we can consider constitutional Americanism would signal a break with the last 237 years of shared assumptions regarding the character and principles of this nation.

Regardless of whether the Republican Party retains its principles, Trump’s interventionism is a gift to the next progressive administration. Conservatives should be deeply worried about the guillotine that the president and his people are setting up in the plaza. As with the radical Jacobins, it is sure to be used against those who installed it.

A version of this article first appeared in National Review.

“This is how state capitalism takes root—not in a single dramatic leap, but through a series of interventions. First, regulators block private adaptation. Then policymakers step in to “repair” the damage they created.”

If news reports are correct that the Trump administration plans to rescue Spirit Airlines in return for up to 90% equity in the company, passengers may soon be boarding a carrier that is basically government-owned. Will the renewed airline be decked out with a gold-leaf interior?

Call it a bailout if you like, or dress it up as a “temporary intervention.” A controlling federal stake in a private airline is something new in America. Yet it won’t be the first time political power has merged with private enterprise. If the Spirit Airlines takeover happens (as seems likely), it will only be this administration’s latest adventure in state capitalism.

Across multiple sectors, the Trump administration has mixed public money with private markets in ways that would have once been unthinkable in the U.S. The federal government has taken a minority stake in Intel. It has claimed a “golden share” in U.S. Steel. It has extracted revenue streams from Nvidia and AMD. It has shaped corporate strategy through tariffs, subsidies and regulatory favoritism—rewarding firms that align with political priorities or promise domestic investment.

At times, Washington has behaved less like a regulator and more like a corporate director. President Trump has demanded the removal of executives, including the CEO of Intel and even a Netflix board member. This isn’t neutral governance. It’s political direction of private enterprise.

We got a taste of this during the Obama administration’s ill-fated dalliance with the failed solar-energy company Solyndra. The history of that debacle offers a warning. Solyndra received more than $500 million in federal loans, only to go belly up. Like nations that have subsidized failing and inferior national airlines, the Trump administration will learn that politicized capital allocation distorts markets, misprices risk and often causes beneficiaries to fail. This happens because investment decisions become driven by political calculations rather than by efficiency or consumer demand.

Mr. Trump has moved Washington past setting the rules of the market to steering its outcomes. This is likely to backfire. The same federal government that may soon own Spirit played a decisive role in undermining its last viable path to independent survival.

Long before this year’s geopolitical shocks and fuel-price volatility, Spirit was already in decline. Revenue was down. Its stock price, once above $80 a share, collapsed to 47 cents by early 2025. The company filed for Chapter 11 bankruptcy in November 2024.

This downward spiral wasn’t inevitable. Spirit’s decline was accelerated, if not sealed, by the Biden Justice Department’s aggressive antitrust campaign against a proposed $3.8 billion acquisition by JetBlue. That deal would have allowed Spirit to scale, improve service and compete more effectively against the dominant legacy carriers.

Even the presiding judge, William Young, acknowledged the merger’s potential benefits. It would, he noted, bring needed competition to American, Delta, Southwest and United. But he ultimately blocked the deal on the theory that Spirit’s ultralow-cost model exerted downward pressure on fares. “Spirit is a small airline,” Judge Young wrote. “But there are those who love it. To those dedicated customers of Spirit, this one’s for you.”

The airline was denied the opportunity to evolve through a private-sector solution. Denied access to JetBlue’s advantages, Spirit collapsed. Now, the proposed solution is a government takeover.

This is how state capitalism takes root—not in a single dramatic leap, but through a series of interventions. First, regulators block private adaptation. Then policymakers step in to “repair” the damage they created. The result is a system in which government both creates market failures and claims the authority and ability to resolve them.

If the Spirit deal proceeds, the federal government will be validating a new model of political control over private enterprise—one in which Washington decides which companies survive, how they operate, and who pays the price. (Spoiler alert: If you’re a taxpayer, you do.) So buckle up. It’s going to be a bumpy ride.

A version of this article also appeared in The Wall Street Journal.

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.