The Conservative Case Against Weaponizing Antitrust Law
During the 1986 Supreme Court confirmation hearings for then-Judge Antonin Scalia, he was asked about his views on antitrust. “In law school, I never understood [antitrust law],” Scalia explained, “I later found out, in reading the writings of those who now do understand it, that I should not have understood it because it did not make any sense then.” This much-needed coherency in antitrust law was brought about by the adoption of the consumer welfare standard. The intersection of economic analysis and the law provided a neutral underlying principle that allowed conservatives to reign in a broad, unprincipled area of the law that was once used as a political and socioeconomic tool.
Today, this remains one of the greatest success stories of the conservative legal movement. However, recent sentiments within both parties have attracted proposals that would mark a return to highly-interventionist, pre-1970s jurisprudence in which the “sole consistency,” as Justice Potter Stewart famously said, “is that the government always wins.” Our panel of experts discuss these proposals, their implications, and the best path forward for conservatives.
Featuring:
Daren Bakst, Senior Research Fellow, The Heritage Foundation
Daren Bakst is a Senior Research Fellow at the Heritage Foundation, where he works on a wide range of issues, from antitrust to property rights and environmental regulation. Before joining Heritage, Daren served as a policy counsel for the U.S. Chamber of Commerce working on regulatory reform and environmental policy, and was the Director of Legal and Regulatory Studies for one of the leading state-based free market think tanks, the John Locke Foundation, located in North Carolina. Daren serves on the Federalist Society’s Administrative Law and Regulation Executive Committee and is a task force member of the organization’s Regulatory Transparency Project. He is frequently cited and published in media outlets such as The Wall Street Journal, USA Today, and The Washington Times, and also publishes academic-oriented pieces, including a forthcoming law review article in the Food and Drug Law Journal on strengthening the Information Quality Act to improve the accuracy of federally disseminated information. Daren recently co-authored the Heritage Foundation’s “A Conservative Guide to the Antitrust and Big Tech Debate.”
Jan M. Rybnicek, Counsel, Freshfields Bruckhaus Deringer & Senior Fellow, The Global Antitrust Institute at George Mason University's Scalia Law School
Jan is an attorney at Freshfields Bruckhaus Deringer in Washington, D.C. He represents clients on antitrust issues relating to the US merger control and review process, multi-jurisdictional merger control, joint ventures, civil antitrust litigation, and investigations before the US Department of Justice (DOJ) and the Federal Trade Commission (FTC). Prior to re-joining Freshfields in 2015, Jan served as an attorney adviser to former Commissioner Joshua D. Wright of the FTC. He advised Commissioner Wright on a wide range of competition and consumer protection issues, including providing enforcement recommendations, developing legislation and policy initiatives with Congress, and drafting formal statements, policy speeches, and Congressional testimony. Jan has published several articles on antitrust law and policy. He was awarded the 2017 Antitrust Writing Award, a joint initiative between Concurrences Review and the George Washington University Law School, in the Best Academic, Mergers category for his article “A Hedgehog in Fox’s Clothing? The Misapplication of GUPPI Analysis.” Jan is an active member of the ABA’s Antitrust Section and currently serves as an Editor for the Antitrust Law Journal, a leading publication for antitrust law, policy, and economics that is widely read by the antitrust bar. Jan recently co-authored an article in National Affairs, “A Time for Choosing: The Conservative Case Against Weaponizing Antitrust.”
Ashley Baker, Director of Public Policy, Committee for Justice
“Conservatives are at a crossroads in their relationship with big government and big tech. It is, as Ronald Reagan so eloquently put it during his 1964 campaign speech for Barry Goldwater, a time for choosing. One path not only requires, but champions, expanded government control of tech firms for the ‘greater good’ designed by regulators and bureaucrats. The other path relies upon competition, markets, and the rule of law to foster individual liberty and economic growth. Conservatives, rightly frustrated by digital platforms’ poor treatment, are increasingly attracted to the former path. The benefits of that path are obvious and satisfying in the short run, at least in part because they provide instant gratification and a healthy dose of retribution. But it is the wrong path. As Reagan correctly observed, a government cannot control the economy without controlling its people. The choice before us will have immense consequences for the role of government and the rule of law for generations to come. It is important to get it right.”
- A Time for Choosing: The Conservative Case Against Weaponizing Antitrust
“Quite simply, the recommended changes in the House Subcommittee report would be an assault on economic freedom. These merger and acquisition recommendations are not limited to Big Tech, thus providing further evidence that the House Subcommittee report is just an excuse to drastically change antitrust law across the board and potentially reshape the entire economy… For conservatives, the last thing they should want to do is undermine the consumer welfare standard, one of the most important developments in decades that promotes free enterprise and economic freedom. They should also reject other sweeping antitrust changes that would flip antirust on its head, such as shifting burdens of proof that would make it more difficult for private parties to engage in commerce, and anything that would expand the purpose of antitrust from being focused solely on economic welfare...Even worse, many of the changes would not merely affect the technology sector, but all sectors of the economy.”
