Progressive Antitrust

“Progressivism” refers to a collection of theories about the appropriate role and obligations of the state. Several American political administrations have worn the label “progressive.” Presidential candidates from both major political parties have run and served under that banner for more than a century, through the 2016 election season. Most of these administrations or intending administrations have advocated for interventionist antitrust policies, reflecting a belief that markets are fragile and need repair, that certain interest groups require greater protection, or in some cases, that antitrust policy is an extended arm of regulation.

Overall, progressive administrations have produced an impressive economic record, at least when compared with real world alternatives. For example, economic growth and job creation during Democrat administrations has been roughly double that which occurred during Republican administrations. But the progressive record in antitrust policy tells a different story, particularly prior to the Clinton administration. Not only have progressives been expansionist in antitrust policy, they also pursued policies that did not fit well into any coherent vision of the economy, often in ways that hindered rather than furthered competitiveness and economic growth. In fact, for much of its history progressive antitrust policy has exhibited fairly strong special interest protectionism.

This Article argues that most of this progressive antitrust policy was misconceived. Not only have progressives been expansionist in antitrust policy, they also pursued policies that did not fit well into any coherent vision of the economy, injuring the very interest groups the policies were designed to protect.

What should be the role of antitrust in a progressive economy that is more intensively regulated than the one that existed when the antitrust laws were passed? Antitrust could pursue one of three very general routes. First, what it has historically done is develop interventionist approaches that recognize many of the same goals and interest-group pressures as regulatory policy generally. Second, it could pursue internally a set of essentially neoclassical goals, limiting its own decision-making to markets in which the government has not asserted conflicting regulatory policies. Or third, it could act as a “super-enforcer” of competition, actually limiting or disciplining regulation that conflicts with its own neoclassical principles. The approach suggested here is a version of the second, provided that care be taken to distinguish public from private conduct. Although the progressive state’s expanded ideas about the role of regulation are justified, as a general matter these views should not spill into antitrust policy. Rather, the country is best served by a more-or-less neoclassical antitrust policy with consumer welfare, or output maximization, as its guiding principle. Not only is such a policy consistent with overall economic growth, it is also more likely to provide resistance against special interest capture, which is a particular vulnerability of the progressive state.

The full text of this Article is available to download as a PDF.