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More than money: Defining American antitrust law, from Bork to Khan

President Biden signs an executive order “promoting competition in the American economy.”  (Alex Wong/Getty Images)
President Biden signs an executive order “promoting competition in the American economy.” (Alex Wong/Getty Images)

In 1978, distinguished legal scholar Robert Bork wrote a book called The Antitrust Paradox.

Bork argued that economic efficiency and “consumer welfare” should be the unique goals of American antitrust law.

The book was hugely influential, and a decisive change from the trust-busting progressive era.

It also became the de facto standard for federal antitrust regulation for the next 40 years.

Now, FTC chair Lina Khan says Bork’s consumer welfare standard is too narrow. She wants regulators to ask whether monopolies hurt the welfare of democracies.

“I think there is an opportunity to really change and learn from the mistakes of the past,” Khan said on the Sway podcast.

Today, On Point: Understanding Robert Bork and Lina Khan in part four of our special series More than money: The cost of monopolies in America.

Guests

Daniel Crane, professor of law at the University of Michigan. (@DanielDancrane)

Barry Lynn, executive director of the Open Markets Institute.

Jack Beatty, On Point news analyst. Author of the Age of Betrayal: The Triumph of Money in America and editor of Colossus: How the Corporation Changed America. (@JackBeattyNPR)


Show Transcript


Part I

MEGHNA CHAKRABARTI: This is On Point. I’m Meghna Chakrabarti. And welcome to part four of our special weeklong series, More than money: The cost of monopolies in America. Today’s episode is really the genesis for the entire series. Because we’re going to talk about two of the most important people in the world of antitrust in the past 50 years. But before we get to that, a quick recap of where we’ve been.

Episode one explored the hidden ways corporate consolidation is changing industries and communities. We looked particularly at the beef industry. Then we turned our attention to the tech sector, and how giants like Microsoft and Amazon may behave in ways that some antitrust activists call nontraditional monopolies. In episode three, we went back in time to the last great American effort to rein in monopoly power, the trustbusting progressive era. Which brings us to today’s episode, and Jack Beatty, On Point news analyst. Hello there, Jack.

JACK BEATTY: Hello, Meghna.

CHAKRABARTI: OK, so first of all, why don’t you pick up where we left off yesterday. What did antitrust look like between 1911, through FDR and World War II?

BEATTY: Well, first let’s go to 1911. And the Supreme Court decision breaking up Standard Oil, the great monopoly into, well, very profitable shards, as it turns out. That decision, it had a striking effect on John D. Rockefeller. He lost all his hair, including his eyebrows, under the strain of the of the litigation, and he retired to a life … in philanthropy. He had earlier given a preview of that by founding the University of Chicago. Mark, that place will return.

What then happened was a period of what some, as some have called a period of neglect, basically a period of laissez-faire. In which, as Calvin Coolidge said, the business of America is business. And antitrust decayed completely. It went down to about nine cases a year, from the 27 cases a year in 1912. And it only revived the antitrust prosecutions with the latter part of the New Deal.

And then in the postwar period, antitrust burgeoned. By 1962, there were 92 cases a year. But while antitrust prosecution was flourishing, the antitrust movement had disappeared. People didn’t wake up in the morning and say, Oh my God, we’re threatened by monopoly power. It was almost a technical proceeding, something that went on outside the can of the normal person. Whereas in 1890, when this agitation first arose, people saw in the words of Justice Harlan, the monopoly was a new form of quote slavery. There was none of that passion in the 1960s.

CHAKRABARTI: So Jack, talk quickly about why that is. Because I think of the postwar period in particular, as you know, one of economic boom. You’re also saying that there were more antitrust prosecutions at that time, but why did it fall out of the public consciousness as much? Was it because of the economic boom that the United States was experiencing?

BEATTY: Precisely. And polls at the time showed a real recovery of prestige by big business, which had reached a nadir of public approval in the early years of the New Deal. People approved of the giant enterprise. People wanted to work for it. It was thought to be better to work for a big company than a small one. And so there was this irony. The Justice Department, especially in the Kennedy administration, 92 cases a year. The Supreme Court …  nailing company after company in decision after decision, that were later overruled. You have that whereas the public seemed indifferent or even perhaps slightly opposed, you know, certainly lacked any antitrust passion.

CHAKRABARTI: I see. So you mentioned the court in the Kennedy era. So after, of course, JFK’s assassination, I mean, really it’s the Warren Court you’re talking about in the 60s here. I mean, is that the place that you would look to best understand sort of the government’s approach to antitrust prosecutions and regulation?

BEATTY: Yes, and the Justice Department under Robert Kennedy was just extremely interested in going after companies. And one of the people appointed to the court, Byron White had been a deputy of RFK, is very involved in antitrust prosecutions. And then on the Supreme Court, he was the author or coauthor or joined in four big opinions that later critics said, My God, you didn’t take into account consumer welfare here. These were cases about vertical integration, and predatory pricing and all these sorts of things. What about the consumer? That was the concern that came up in the in the 1970s through the Chicago School of Economics.

We remember that it was like the revenge of John D. Rockefeller, the University of Chicago sort of blessed monopoly starting in the 1970s. And culminating in Robert Bork’s treaties about antitrust, basically saying, Hey, if the consumer is benefiting, why worry? Let’s learn to live with big. Let’s not even call it monopoly, and everything will be fine. And that became the basic sort of grammar of antitrust thinking, up until today when we have a revival under Lina Khan, and others, of the old progressive tradition saying no, wait a minute. It isn’t just price, it isn’t just consumer welfare. These aggregations of power in single hands, this former private power is as much a menace to liberty, as government power.

So we’re going to understand more deeply today Robert Bork’s thinking, and his influence over the past 40 years. But Jack Beatty, On Point news analyst, thank you for bringing us up to speed and looking forward to having you back tomorrow as we wrap up the series.

BEATTY: Thank you.

CHAKRABARTI: OK, so 1978. That is the date we mentioned earlier, and it’s the year that Robert Bork wrote that seminal book that Jack just mentioned, The Antitrust Paradox.

ROBERT BORK [Tape]: I remember when I first started teaching antitrust law, I thought it was hopeless. The thing was intellectually corrupt, and the best you could do was cause pain on the way out.

CHAKRABARTI: This is Judge Bork speaking in 1988, in a speech where he describes an awakening of sorts.

BORK [Tape]: But I overlooked the power of ideas. Now that’s easy to do if you spend your time in faculty meetings. But ideas ultimately have much reformed antitrust law, and I do not give up the prospect that we can win this fight with ideas in constitutional law, as elsewhere. 

CHAKRABARTI: Well, it was Bork’s ideas, or at the very least, the way in which he crystallized them in The Antitrust Paradox that defined federal and mainstream legal approaches to antitrust regulation from 1978, on through to today. So Daniel Crane joins us. He’s professor of law at the University of Michigan. Professor Crane, welcome to you!

DANIEL CRANE: Hi, Meghna.

CHAKRABARTI: So first of all, I’d love to have you describe what exactly is it that Robert Bork, in 1978, saw when he looked around at how the government was approaching antitrust regulation, that inspired him to put his ideas down in his book?

CRANE: So Bork started working on antitrust as a professor at Yale Law School in the 1960s. And what he saw in the Warren Court, especially in his view, was that contrary to Congress’ intention when it passed the Sherman Act, which was in books for you to protect consumers, judges were making industrial policy on the fly, and particularly enacting leftist social policies through antitrust law that were designed to create egalitarian outcomes, such as protecting small businesses. But those outcomes were threatening the welfare of the American consumer, which, in Bork’s view, is what the Supreme Court should be protecting, as Congress had meant.

CHAKRABARTI: OK, now you know, we’re framing today’s conversation in terms of the ideas and thinking of Robert Bork and the ideas and thinking of Lina Khan. And I just want to state clearly that obviously they’re not the only two people in this whole story. They are people who are of a time and of a place, as well. But yet it’s their ideas that were using as a vehicle for this analysis. So tell me, what else was going on that you think is relevant? Professor Crane, socially, politically and economically, that allowed Bork’s book to really sort of be the thing that people look at as influential at the time.

CRANE: So the direct thing that happened was then in 1979, the year after the publication of The Antitrust Paradox, the Supreme Court, in a case called Reiter v. Sonotone, cites Bork’s work on the legislative history of the Sherman Act in holding that antitrust law is, quote, a consumer welfare prescription. And as Jack previously said, that becomes the goal of antitrust law. Officially, the goal in the courts, in the antitrust agencies from the time of Bork, to the time of today. And people can dispute what that really means, and whether it’s the right standard or not.

But it certainly has been a transformative idea, as Bork said, that courts should not look to anything other than whether the behavior in question is beneficial to economic efficiency as supporting consumers. They should not take into account, for example, protecting small business, which may simply be less efficient in Bork’s point of view. And so the consumer welfare standard and economic analysis, as implementing the consumer welfare standard, was the new Charter of Antitrust, really from 1978 to 1979, up until today.

CHAKRABARTI: When we say efficiency in Bork’s context and Bork’s mind, what did he mean?

CRANE: Bork had an idea of efficiency as scarce social resources being put to their most valued uses. Which is to say if a monopoly raises prices too high and output fell because of that, that was inefficient. But when even a big company cut prices because it was more efficient, that benefited consumers and was not inefficient.

CHAKRABARTI: OK, so Daniel Crane, professor of law at the University of Michigan, standby for just a moment. When we come back, we’ll talk a lot more about what exactly Robert Bork again crystallized in his influential book The Antitrust Paradox.


Part II

CHAKRABARTI: This is On Point. I’m Meghna Chakrabarti. It’s part four of our special series More than money: The cost of monopolies in America. And today we’re taking a look at basically two of the leading lights, a couple of generations apart, when it comes to how the federal government has approached antitrust regulation. Robert Bork in the late 1970s and Lina Khan now. Daniel Crane joins us. He’s professor of law at the University of Michigan. And let’s listen quickly to Robert Bork himself. This is from 2005, in a speech at the National Press Club, where Bork criticized the Supreme Court under the tenure of Chief Justice Earl Warren. So, that Warren Court from 1953 to 1969. And here is what Robert Bork said.

BORK [Tape]: The Warren Court politicized every branch of law, statutes, constitution, everything. His drive was for equality of outcomes in the economic sphere as well as in others. Thus, the taxpayer, the patent owner, the employer in a dispute with the labor union, all routinely lost. During the Warren years, no antitrust defendant ever won in the Supreme Court, regardless of the law, or the record and the findings made in the court below.

CHAKRABARTI: Robert Bork in 2005. Professor Crane, was Bork also responding to what he saw or believed to be overreach by the Warren Court?

CRANE: He certainly was. Bork looked at the decisions of the Warren Court in antitrust, particularly. And saw a pattern of what he thought of as a threat to the free enterprise system by unaccountable, unelected judges who were trying to protect, as you just said, in that speech, an egalitarian vision for equality of outcomes, regardless of whether or not any particular producer or market participant was good enough to win the competitive struggle. So he thought this was all very, very bad for the American consumer. And the antitrust paradox was that a statute designed to protect consumers was being put to the exact opposite use of suppressing efficient competitive behavior that would have benefited consumers.

CHAKRABARTI: So, that statute being the Sherman Act. So again, help us with some definitions here, because all week long I’ve been using this phrase, the consumer welfare standard. Now is the time to really get a deep sense as to what exactly that meant. What did Judge Bork mean when he talked about, you know, that the consumer welfare standard should be at the heart of federal antitrust regulation?

CRANE: So, it’s interesting. People in the antitrust field have different views about what Bork meant by consumer welfare, or what it should mean. But I think if you read Bork, his idea is thinking in economic terms about why it’s harmful to society for a company to exercise monopoly power. And in Bork’s point of view, that is only harmful if it results in a suppression of output, or of an increase in prices, or a decline in innovation. That hurts the people who buy the products being sold.

And so if a company is engaged in aggressive competition, and becomes a large company because it’s simply better at doing its job, and is winning because people want to buy the products they are selling, even if that creates an unleveled playing field. In the sense, we get a big company winning out over small companies, and small companies going bankrupt. That is not inconsistent with efficiency, that’s the very definition of efficiency. Because the company is winning based on its superior efficiency in the market. And Bork thought that antitrust law and the consumer welfare standard should be protecting companies who win based on their superior ability to produce and to sell products that consumers want to buy.

CHAKRABARTI: I also wonder if the framework that Robert Bork provided in his book The Antitrust Paradox, sort of allowed for a kind of more quantitative basis by which regulators and judges could be assessing antitrust cases. That it’s sort of an easier framework to use, then, I don’t know, making the judgments based on larger issues, such as is it bad for democracy?

CRANE: I think that’s right, and Bork was, although Bork is today criticized for having done things that were anti-democratic. In his point of view, this was all necessary for the rule of law. He thought it was unaccountable and contrary to the rule of law, for judges to be enacting their economic preferences, their egalitarian economic preferences, in an unaccountable way without any objective standard. Bork thought that economic learning was an objective way of doing antitrust.

So if the standard was always is this good or bad for economic efficiency and consumer welfare, that was the kind of question that could be measured and answered in an objective and accountable way. So it was not only that antitrust law should be used to protect consumers. But that the judicial discretion, or the judicial activism, which of course, he also attacked in constitutional law, should be reined in by an objective standard based in economics.

CHAKRABARTI: OK, I want to tie some threads together here. Professor Crane, because you heard Jack mentioned the University of Chicago before. Now, Bork was a professor at Yale, right when he wrote The Antitrust Paradox. But he got his training as a law student at Chicago, right?

CRANE: That’s right. So he was a marine in the Korean War, took some time off from his studies to do that. But he attended the University of Chicago in the early 1950s. And this was a time when … economists were beginning to do work at the University of Chicago, questioning the entire basis of antitrust law. This is really before the Warren Court, of course, and like lots of things, it took a long time for those academic projects to take fruition in terms of judicial outcomes. It took really almost three decades. But Bork gets his training at Chicago.

He goes on to become a lawyer and eventually, of course, an academic at Yale. Solicitor General, failed Supreme Court nominee after being a judge on the D.C. circuit. But he gets his ideas initially from his studies at the University of Chicago, which is why he’s associated with a Chicago school of antitrust analysis that includes other names like Judge Richard Posner, also very well known, but had quite different views than Bork on antitrust law. But they’re all grouped under this broad umbrella of a Chicago school, because of their association in one way or another with the University of Chicago. And also their critique of antitrust law, and the desire to transform it in a more consumer welfare oriented way.

CHAKRABARTI: Right. And the Chicago school is influential well beyond antitrust, right? Because the other name that pops out is Milt Friedman, of course, right? And so I just wonder if Bork’s book landed at a time when we also had this very rapid gelling? Well, not rapid, but it seemed rapid to the public side. Of the ideas coming out of the University of Chicago, then moving into government, right? Because soon after 1978, we have the election of President Ronald Reagan, an era of deregulation, etc. It seemed as if the time was ripe for a book like this to set the framework for a new approach to antitrust at the federal level.

CRANE: Absolutely, and as you said at the top of the show, we can focus on a person like Lina Khan today. But these are just representative of broader social and political currents in which many people participated. So, you know, the 1970s, it’s the post-Vietnam War era, the post-Watergate era, it’s a time of loss of trust in government. Ronald Reagan runs on the slogan that government is not the solution. Government is the problem. It’s also the time, though, of a rising consumer sentiment, not just on the right, but on the left as well.

So you have Ralph Nader, who is here arguing for a consumer oriented economic policy. And people like Senator Ted Kennedy in 1975 hold hearings on how airline regulation is harming the American consumer. And the person who works with Senator Kennedy on that as his chief assistant is Stephen Breyer, who of course, is now retiring from the court. And this leads to a deregulatory sentiment as good as inflation rises in the late 1970s. So the message that antitrust law should be oriented toward protecting consumers had an awful lot of bipartisan and broad social resonance in the 1970s and 1980s.

CHAKRABARTI: So tell me more then. I mean, it’s had social resonance for 40 years now. I mean, that seems to be quite, it’s got a longevity to it.

CRANE: It does, but one thing that one should understand about the American psyche is that we, since the earliest of our founding times, have had a love-hate relationship with large scale and power. If you think back to Hamilton and Jefferson, and the fights over the Bank of the United States, and you go through Andrew Jackson and Teddy Roosevelt and Louis Brandeis and FDR. This is a cyclical battle, and it would be, I think, an error or two to think that the Chicago school could ever have been the end of history.

It could also it would also be an error to think that whatever comes out of the FTC and Lina Khan’s efforts there today will be the end of history on these things. We both as American people, we both fear large scale organizations, whether in government or in business. And we also admire the the efficiency, and the benefits that come out of large scale organization. And so those contending impulses constantly cycle and show up in all kinds of ways, and antitrust law is just one of those.

CHAKRABARTI: Well, one last question for you, Professor Crane. You know, we’re framing this whole week of shows around the question that, you know, to be frank, current FTC chair Lina Khan has been asking about whether really we should be looking at monopolies. Not just on a consumer welfare standard, but on a democracy welfare standard.

And it’s quite interesting to hear an FTC chair say that, now. Because as far as I understand, in the period that Robert Bork wrote his book in the late 70s, you know, people thought that the FTC was really overreaching, even at that time. So, what do you think Bork would think about this idea that there is a role for antitrust regulation in protecting democracy from the predations of extremely powerful monopolistic corporations?

CRANE: So it’s interesting. I don’t know that Bork would necessarily disagree with that. And when you read The Antitrust Paradox, he does have this view of democracy, which he thinks is being harmed by the antitrust policies that are in place in the Warren Court. And again, he thinks that the rule of law is being threatened by judges who are making industrial policy without any statutory support or legislative history support for what they’re doing. And are doing so in an unaccountable way in which big business is under threat.

So, I think there are many different ideas about the relationship between monopoly and democracy. And I think what Bork would have said is that if we have an antitrust policy that’s focused on protecting the welfare of consumers, that will also be good for democracy. I understand that lots of people think that’s not what’s happened, and that we need to change our perspective. But I don’t think that it would be fair to think of Bork as being hostile to the idea that antitrust law, in its consumer welfare orientation, could be itself an instrument of democracy.

CHAKRABARTI: Well, Daniel Crane is a law professor at the University of Michigan. Thank you so much.

CRANE: Thank you.

CHAKRABARTI: We’ve been talking about Robert Bork and his ideas in The Antitrust Paradox. And you notice, I haven’t mentioned his Supreme Court confirmation hearings, or failed confirmation hearings, in 1987. And that’s because antitrust almost never came up in those confirmation hearings. Because Robert Bork’s views, by that time, had so strongly helped define the mainstream views of the purpose of federal antitrust regulation. And to show just how firmly he was in the mainstream, here’s a moment from Bork’s confirmation hearings. When the late Phillip Areeda, then a Harvard Law School professor and one of the nation’s top antitrust scholars, quickly brushes aside Bork’s critics.

PHILLIP AREEDA [Tape]: Some of those who criticize Bork say that he has a narrow view, that the antitrust laws protect only economic efficiency rather than some broader values. I’d like to put those vague abstractions on one side and bring the academic dispute down to Earth. The central point is whether the antitrust laws should protect inefficient producers at the expense of American consumers, and Bork’s writings give a negative answer to that, as indeed they should.

CHAKRABARTI: The late Phillip Areeda, at Robert Bork’s confirmation hearings in 1987. Now remember, it was in 1978 that Bork wrote The Antitrust Paradox. Almost exactly 40 years later, a Yale Law School student named Lina Khan writes Amazon’s Antitrust Paradox. It’s a law paper that goes as viral as law papers can go. She is now the FTC chair, and she recently spoke with CNBC and the New York Times. And she talked about her background as a law school student, a legal scholar and a journalist. And when she investigated what she says are the hidden impacts of antitrust regulations, and how legal theories like Bork’s actually played out in reality.

LINA KHAN [Tape]: And I think what we see is that some of the metrics that have been used over the last decades have not really captured, in full, the whole architecture of market power that we’re seeing and how it’s being exercised. And so for me, the key question is really, how do we make sure that our tools and our frameworks in the ways that we’re enforcing the law are matching the world that we’re living in? And are not just theory here and evidence here, but our theory and our tools are evolving to meet the evolving marketplace.

CHAKRABARTI: FTC Chair Lina Khan, just last month. Well, joining us now is Barry Lynn. He’s executive director of the Open Markets Institute. Barry Lynn, welcome to you.

BARRY LYNN: Hey, thanks for having me.

CHAKRABARTI: You know, FTC chair Lina Khan actually in her Yale paper, if I remember correctly, credits you with introducing her to the world of rethinking antitrust regulation. So tell me, how did you do that? How did you introduce her to that?

LYNN: Oh, I did that by actually hiring Lina out of college in 2011. And I was at that time, running a program at a think-tank called New America. And so it was a small program that we had put together, and Lina was actually the first full-time person that we hired to work on these issues. And that was just after I had published my second book, which was called Cornered: The New Monopoly Capitalism and the Economics of Destruction, which has been sort of the summation of the problems that this sort of new monopoly crisis in America has brought to the fore.

CHAKRABARTI: Barry, quickly describe to me, What do you mean by new monopoly crisis?

LYNN: Well, you know, the main thing is that the ideas that Robert Bork sort of brought into antitrust and used to reshape antitrust enforcement in the 1970s, 1980s and 1990s has unleashed a concentration of power across the American economy that is a threat to our democracy, our prosperity or national security. Just about everything that we hold dear. And this is the issue that we’re dealing with as a people today. It’s the biggest issue that we face.

CHAKRABARTI: Barry, just stand by for a second, because we do have to take that quick break. But when we come back, I want to hear from you about what opened Lina Khan’s eyes to that, as she worked with you at the Open Markets Institute.


Part III

CHAKRABARTI: Today, we’re taking a look at what happened in 1978, when Judge Robert Bork published his influential book, The Antitrust Paradox, that really focused monopoly regulation around this idea of consumer welfare. And then from that to now, where the current chair of the FTC, Lina Khan, wants to reorient federal thinking around monopolies to a question of democratic welfare. So here’s Lina Khan in 2017. That’s the year that she published a paper while in Yale Law School called Amazon’s Antitrust Paradox, direct reference to the title of Robert Bork’s book. Khan’s thesis was that Amazon’s scale and power today are similar to the scale and power of, say, railroads and telegraph companies 120 years ago.

KHAN [Tape]: And what we did back then is declare that these new technologies were forms of infrastructure on which all these other businesses had come to depend. And we adopted public utility regulations and forms of antitrust laws to kind of curb this power. I think the insights from our experience of that era, of the industrial age can prove very instructive for the challenges we’re facing in the information age.

CHAKRABARTI: FTC Chair Lina Khan, before she was chair back in 2017. Now, Barry Lynn joins us. He’s executive director of the Open Markets Institute, and that’s the place where Lina Khan really first immersed herself in this new way of thinking around antitrust. And Barry, if I understand correctly, Lina Khan had checked out your book that you had mentioned, while she was a Yale Law School student. And then when you hired her, can you tell us the story of what happened? Because in a piece written in the New Yorker, you told the New Yorker that you had asked Lina Khan a specific question during your interview with her. You asked her if she ever got angry. Now, why did you do that?

LYNN: Lina actually checked that book when she was still an undergraduate. … Because she went to Yale after working with us for three years, mainly as a reporter and researcher.

CHAKRABARTI: Oh, I apologize. I knew that, I just got my dates mixed up and I appreciate the correction. Go ahead.

LYNN: Yeah. No. And the reason you know it was, Lina is a very cool person. I mean, she is not someone who comes off as getting angry. And when I sat down with her the first time, I said, this person has a very impressive intellect. This person is very well educated. But they also have the shape, of the capacity to really use their education in a way that will allow them to sort of dig into issues, and understand them in ways that other people don’t.

But my one question, meeting with this person who was very cool, very calm, was whether they would have that passion to bring to the fight. Because we understood that this was the fight of our lifetimes. It’s like if we were going to have to deal with these concentrations of power, if we want to save our democracy, we want to save individual liberty. We want to save our communities. We want to deal with climate change. We have to break the power that has been concentrated in today’s corporations.

CHAKRABARTI: You know, in the article, when you said that, you know, initially when you asked her, like, do you get angry? She didn’t really say she did. But later on, during some of the work with you, the New Yorker says one afternoon she looked up from an article she was reading on her computer. And she said, Barry, I think I’m starting to feel angry. Do you remember what that article was, or what that moment was?

LYNN: I don’t remember the exact article. What I do remember is that what made Lina angry, and this gives you a real sense about who she is and how she fights. What was making her angry was the arguments that were being used to justify concentration of power. And she felt that these arguments were treating the American people in a disrespectful way, that they were treating the American people as children. That these were arguments [that] were insulting. And that made her angry. And she said, This is a democracy, and the American people have a right to get real information, and to make their own decisions.

CHAKRABARTI: So then tell me, what is it from, that you, Lina Khan, and now some others think is missing from the Borkian focus on the consumer welfare standard?

LYNN: What’s missing from the Borkian focus on the consumer welfare standard is the Declaration of Independence. The Constitution of the United States, the goal of equality for all. The goal of a democracy that integrates everybody, that gives everybody a say. The goal of a system that allows everybody to live their own lives without a boss getting in their face, and demeaning them and keeping them from seeking their own pathway through life. The problem with what Bork brought forth and I agree with Daniel Crane, we don’t know whether Bork meant ill when he was proposing these ideas, I think in certain ways he did. It’s unprovable.

But the results of what he achieved was an overthrow of a system. That we, the American people, had constructed over 200 years to keep ourselves free. And to keep ourselves safe, and to allow us to master every challenge that came our way. And that’s a really big achievement by Mr. Bork. And that’s why what we’re doing today is so important. Because in many ways, this is a reestablishment of the American Democratic Republic.

CHAKRABARTI: So Barry, can I just jump in here, because it’s so interesting to me. Because I can imagine that Robert Bork, or let’s just say more broadly, like almost every person who would describe what the orthodoxy has been around antitrust regulation for 40 years now, would invoke many of the same words — freedom, liberty.

But in this case, freedom from government intervention in the process of American business. The liberty to have markets decide, formulate and decide what meets the standard of welfare for consumers. I mean, but you’re using the same language, but concerned about liberty and freedom for entirely different groups.

LYNN: … It was very focused on liberty, but the liberty that he was preaching was liberty for the master, is liberty for the master of the corporation to do as he wished with the rest of us. And the liberty of the Declaration of Independence, the liberty that was preached by Louis Brandeis, the liberty that Lina Khan is thinking about when she’s sitting in the chair at the FTC, is liberty for everybody to live. With a dignified life, a prosperous life, as masters of their own selves. And not subjects of someone else’s will. So yeah, we can call it liberty, but it’s a really fundamentally different view.

CHAKRABARTI: Oh yeah, I’m just going to jump in her. Because a few minutes ago, I played a clip of tape from 1987 and Bork’s confirmation hearings. We heard Phillip Areeda, then a Harvard Law School professor. And in fact, the very concerns that you’re raising right now, in 1987, he sort of brushed them aside.

He said, I’d like to put those vague abstractions on one side and bring this dispute down to Earth. But you know, like the central question is, are consumers harmed? I mean, I think there are some people out there right now who would still be listening today. And say, when you talk about individual liberty and the founders, these are vague abstractions. Like how can a judge with an antitrust case before her, use those abstractions to determine whether or not a company is, you know, exercising monopoly power?

LYNN: To answer that first, Areeda was not the only person who spoke at those hearings. Another person who spoke at those hearings was a fellow named Robert Pitofsky. Robert Pitofsky, who later became chair of the FTC. And I think it was in, 1997 under Bill Clinton. Robert Pitofsky, at those hearings, warned the American people, warned the Senate that Robert Bork’s ideas were fundamentally subversive of democracy. Robert Pitofsky, these warnings played a part, played a major role in helping to block Robert Bork from getting on the Supreme Court.

So Areeda was not the only dude who was having a say that day. Other people saw the exact opposite thing, the exact opposite threat in Robert Bork. And as far as people saying that the consumer welfare standard allows for judges to have a better hold on science, on some kind of external standard on which to judge the value of one potential merger or another, its different structure of some industry. That’s absolute bunk. You look at the history of debate in the courts, over the last generation, on mergers. And you see absolute chaos.

There is no standard. This idea that we can judge with pricing is gameable by every single corporation. So even on its own merits, the consumer welfare approach doesn’t work. And what it does do is a license to concentrate absolute power over people. To take over entire sections of the political economy, and make the people who depend on those services, who depend on those goods, dependent on the master of the corporation that controls those services back, controls those goods.

CHAKRABARTI: Now, I want to play a little bit more from from Lina Khan because, you know, obviously, as you well know, she’s also bringing kind of a quantitative view to this as well. Because here in 2019 at the Aspen Ideas Festival, Khan talked about what she sees … [when] we’re talking about democracy. And some of the problems that the nation faces, including inequality. She says she sees a direct link with linkage between corporate consolidation and income inequality.

KHAN [Tape]: What happens when, you know, you go from a marketplace where you have the choice of 10 potential employers to a marketplace of two potential employers? Is that your bargaining power goes down. And so there’s a pretty direct correlation between increased concentration of labor markets and decline in wages.

It’s also become more difficult as markets have become more consolidated to start a new business and to compete that way. You know, for a lot of families, having your own business has been a key way to kind of pass down the wealth. And so insofar as it’s become more difficult to do that, I think that’s one avenue to the middle class that is being more blocked off.

CHAKRABARTI: That’s Lina Khan in 2019, before she became a current chair of the FTC. Now, Barry Lynn, back when you definitely started looking deeply into this, and even when you brought Lina Khan on board at the Open Markets Institute, you describe that time as this thinking about how to view monopolistic power in the country as on the fringe. So that’s not that long ago. I mean, it’s obviously not so much on the fringe anymore. What do you think about that?

LYNN: It’s been a really radical change. And, you know, the change began to really pick up speed 2016. That’s when Senator Warren kind of reached out to us, and said that she was very interested in our work and wanted to learn more about it, and invited me over for dinner. And I brought over to that dinner, I brought Lina to that dinner. I brought Jonathan Kanter, who’s now the assistant attorney general for antitrust at the Department of Justice.

… There were four of us in total. And Warren, a few two months later, gave a speech. It was actually June 29th, 2016. And that was the first major speech by a major public figure in the United States, saying, Hey, this Bork approach to competition policy? It didn’t work. It’s wrong. Not only is it wrong, it’s dangerous. So when Senator Warren did that, it caught people’s attention. And it basically changed the entire conversation in Washington. And it sped up this movement in a way that nothing else before, or since, has.

CHAKRABARTI: Earlier this week, we talked about how Standard Oil was broken up, but then we got Exxon later on. You know, Ma Bell was broken up, but then we had Verizon and other sort of more localized monopolies. What is it that makes you think that this new view of antitrust can actually lead to a recapturing of the kinds of foundational liberties you were talking about? You got 30 seconds for this one.

LYNN: Well, what will allow us to recapture our foundational liberties is to empower every single citizen of the United States, to understand what is the threat. Which is that when you allow concentration of power over communications, Google and Facebook power a concentration of power over the basic things of life. … What is the threat to your democracy, your liberty, the community in which you live? And if you look over here into this toolbox, what you see is a set of tools that Americans created over the course of 200 years, two centuries to solve every one of these problems.

CHAKRABARTI: Well, Barry Lynn, executive director of the Open Markets Institute. Thank you so much for joining us.

LYNN: Thank you for having me.

This article was originally published on WBUR.org.

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