I’ve Got The Power
Antitrust is now front and center in the national debate. Under the leadership of Lina Khan, the FTC has pursued an aggressive new “Neo-Brandeisian” philosophy of antitrust regulation—or, what you could call “hipster” antitrust. This philosophy believes antitrust should not be limited to the “consumer welfare standard” that has dominated antitrust legislation since the 1970s.
“Hipster” antitrust is inherently skeptical of large corporations. As we recently wrote, the philosophy of “Big is bad” is back. Therefore, the FTC has continually sued to block both corporate mergers and corporate acquisitions, and is now overstepping its authority into other realms.
At root, this antitrust philosophy believes antitrust laws are meant to address social matters. It is very activist in nature.
Now, the FTC’s new agenda raises a question: Do states have a role in pushing back against federal antitrust overreach?
In 2017, the DOJ challenged the proposed merger of AT&T and Time Warner. At the time of the merger, AT&T was a significant programming distributor because of its DirecTV and U-Verse services, while Time Warner was primarily a media and entertainment content provider (it owned CNN, HBO, Turner Broadcasting System, and Warner Brothers).
At least 20 state attorneys general joined the DOJ to actively investigate the merger, but none ultimately joined their suit, which undermined the entire thing. Moreover, nine states filed an amicus brief opposing the DOJ’s appeal.
They highlighted the aggressive nature of the suit. Then they said, “It is rare for the federal government to pursue an antitrust case involving major, national companies without any state joining the effort.”
The lesson from this case should be heeded: States have a role to play in pushing back against overstepping antitrust suits. They should do so.
If the recent past is any indication, the FTC, under its current leadership, will continue to pursue an aggressive campaign of federal government overreach into private business. The current precedents are allowing an unelected bureaucracy to override the laws of individual states—and those states have a role to play in pushing back, so the final say in these matters rests in the hands of the people.
If we’d all just read the 10th amendment.