The Appeal: Last Week’s Big Tech Antitrust Hearings Sent An Unmistakable Message – Change is in the Air for America’s Corporate Giants

August 6, 2020 Anti-Monopoly Policies & EnforcementTech

Last week, House Antitrust Subcommittee chairman David Cicilline closed out a historic investigation into the power of Big Tech with the words of the great legal thinker and former Supreme Court Justice Louis Brandeis: “We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.” House Judiciary Committee chairman Jerry Nadler also summoned Brandeis at the same hearing: “I have long believed,” he said, “with Thomas Jefferson and Louis Brandeis, that concentration of power in any form—especially concentration of economic or political power—is dangerous to a democratic society.”

To most people, these statements, and the subcommittee’s five-and-a-half-hour interrogation of Amazon, Apple, Facebook, and Google’s CEOs, might not have seemed particularly momentous. But to anyone interested in curbing the might of America’s corporate giants, they sent an unmistakable message that something is changing. Through the evocation of Brandeis and members’ reassertion of authority over powerful corporations, the committee signaled an unprecedented desire to break with one of the most durable, and damaging, economic frameworks of the last 50 years: the 1970s-era, hands-off antitrust ideology that displaced Brandeis’ approach and helped bestow these titans of tech with such extraordinary power to begin with. 

That ideology is rooted in enforcing antitrust laws according to the “consumer welfare” standard; according to this standard, virtually any consolidation of corporate power is acceptable as long as it might reasonably be predicted to lower prices and benefit consumers. The consumer welfare standard was developed and popularized by the conservative legal scholar Robert Bork in the 1960s and 1970s. Though best known for his hard-right social views and his unsuccessful nomination to the Supreme Court during the Reagan Administration, Bork’s most lasting legacy may be the way he helped reorient progressives and conservatives alike away from constraining corporate power. 

Bork successfully insisted, with dubious evidence, that antitrust law’s only goal should be promoting “consumer welfare,” waving away or belittling concerns about unchecked corporate power’s harms to workers, independent businesses, and democracy—so much so that his students jokingly called his approach “protrust.” At the same time that Bork sought to subvert antitrust law to serve the powerful, he openly objected to the Civil Rights Act, arguing that it comprised an infringement on business and lamenting the “cost in freedom that must be paid for such legislation.” 

Bork’s crusade was eagerly adopted by the Reagan administration. Progressives might have been expected to push back. Yet while they rejected Bork’s views on civil rights, they joined the Reaganites in embracing his framework on corporate power. This shift overthrew the approach to antitrust that Louis Brandeis and his Congressional allies had ushered into law and policy during the New Deal, which was predicated on clear, bright line rules for structuring markets to protect businesses, workers, and democracy.