Reference to the Republican Party’s three greatest presidents can serve as a tool with which to judge and anticipate the still unsettled course of antitrust enforcement in the second Trump administration. Trumpian antitrusters have professed their intent to break from policies of the Biden appointees Lina Khan and Jonathan Kanter. However, the 47th president’s enforcement resembles the central planning of the 46th far more than his administration would likely care to confess.
The administration is still young, however, just beginning its fifth month. Time remains for the Federal Trade Commission (FTC) and the Department of Justice (DOJ)’s Antitrust Division to unscramble themselves and ground policy in the sensible, pro-competitive, and constrained theories of regulation propounded for decades by antitrusters of both parties. The Trump administration can restore the balance that prevailed until the revolutions during the Biden years. It is, to invoke Ronald Reagan, a time for choosing.
Fresh off four years of standing athwart Khan and Kanter, some might find it odd that conservatives have begun mimicking their erstwhile nemeses. Indeed, Trump officials have begun to borrow talking points from their Democratic predecessors. Inexplicably, the Trump FTC and DOJ chose to retain the Biden-era joint merger guidelines. That guidance, breaking with decades-old policies, aimed to subject more mergers and acquisitions to the government’s veto.
FTC Chair Andrew Ferguson justified the capitulation to Khan and Kanter’s arch-progressive guidelines as a boon for regulatory “stability,” arguing that “The wholesale rescission and reworking of guidelines is time consuming and expensive.” This resembles arguing against putting out a recently ignited fire that is burning down a beautiful old home. Dousing the flames and rebuilding would certainly require time, money, and manpower, yet it remains nonetheless preferable to allowing the blaze to continue. If the FTC seeks stability, it should pivot to the proven, economically sound M&A approach that obtained for decades until renegade progressive activists upended it less than 18 months past.
Moreover, Ferguson kept the Biden-era premerger notification rules, wrapping regulatory red tape around every attempt at M&A — not just the less than 2 percent (as of 2021) that attract additional scrutiny. “These rules will increase the hours needed to prepare filings from 37 hours to 144 hours per filing, and yield approximately $350 million in additional labor costs” (or worse), notes Jessica Melugin of the Competitive Enterprise Institute. Lina Khan’s tenure in government was short and widely panned — not to mention fraught with courtroom defeats — but Ferguson has undertaken to perpetuate her legacy.
“If we could first know where we are, and whither we are tending, we could better judge what to do, and how to do it,” Abraham Lincoln said in 1858. Gaining the same knowledge will clarify the causes of conservatives’ strange drift towards progressive antitrust and uncover better remedies to their diagnoses.
In large degree, the right’s subjugation of its traditional free-market philosophies to quasi-progressive antitrust ideology springs from a distrust of the perceived progressivism of corporate America. “I think monopoly can be as dangerous in many ways as big government,” Ferguson stated. This distrust becomes particularly acute with respect to the tech sector, whose history of stifling non-liberal speech has rightfully angered many conservatives. Indeed, Trump FTC and DOJ have elected to continue outstanding cases against Big Tech companies, including Amazon, Apple, Google (twice), and Meta.
Attempting to tie content moderation (in some cases) to market power, the FTC in February began an inquiry into “tech censorship.” But this inquiry, in seeking to micromanage the content moderation of private platforms, defies clear Supreme Court precedents affirming a First Amendment right to editorial discretion for online platforms. The FTC’s case against Meta, Ferguson said, “is about addressing the power of Meta and making sure that the situation we had in 2020 can never arise again.” Likewise, Trump’s antitrust chief at the DOJ, Gail Slater recently defended the case against Google Search partially on speech grounds, saying, “You know what is dangerous? The threat Google presents to our freedom of speech.”
Antitrust is a narrow tool designed to serve a narrow economic function, not to promote conservative speech or to wage a broader culture war. To safeguard free speech online, conservatives ought to begin by ending all attempts to influence private platforms’ content policies. Biden’s jawboning of social media should be succeeded by restraint, not by Trumpian jawboning or quixotic bids to shatter disfavored companies. Already, the market has begun to reshape itself after the censorial excesses of recent years. Notably, Elon Musk purchased Twitter, and in January, Meta overhauled its content-moderation policies.
Calvin Coolidge’s maxim, “If you see 10 troubles coming down the road, you can be sure 9 will go in the ditch and you have only one to battle with,” should guide antitrust enforcers. Market churn and creative destruction generally demonstrate the myopia of panicked assumptions that some firm has secured an unshakable market share or has gained too much power to be left alone. Running up the road to take the offensive against every far-off trouble cannot but damage the economy. Technocrats — whether of the right or of the left — cannot know enough, or foresee well enough, to plan an economy. Worse, doing so erodes the economic freedoms and property rights embedded in the American philosophy of justice and government.
For Trump’s antitrusters, it is, indeed, a time for choosing.
