Neo-Brandeisians confuse authoritarian rule with liberty

The neo-Brandeisian (NB) movement has always been about using the government to control others. Its primary strategy is to use antitrust to limit what consumers and businesses can do, but the movement is also interested in using economic regulation, control of property rights, and public ownership of businesses to impose its will on the economy. Now, this authoritarian bent is prompting some to grab power by bypassing governmental checks and balances. If they are successful, it won’t be good for democracy.

To illustrate the movement’s authoritarian bent, consider the writings of three of its more prominent leaders: Federal Trade Commission (FTC) Chairperson Lina Khan, Open Markets Institute Director Barry Lynn, and Columbia Law School Professor and former Biden White House Antitrust Advisor Tim Wu.

Khan
explained
in 2018 that the movement seeks to use government controls to limit the size and scope of individual businesses. In a 2014
article
with Zephyr Teachout, Khan added that NBs prefer “an economy populated by many small businesses” to one where consumers choose to buy from large companies. Lynn is more specific. He
explains
that NBs want the government to “reengineer” and “reorganize” U.S. industries,
including
“intentionally structuring corporations and markets.”

Not only do the NBs want to control how many customers a business can serve, but they also want to design businesses’ products. Khan gained fame
advocating
that the government should redesign Amazon’s e-commerce platform, making it like eBay, as Lynn
explained
. Wu launched the net neutrality craze in 2003 with the
proposition
that governments should dictate that broadband be uniform and featureless (i.e., neutral).

For those of us who see power in liberty and consumer sovereignty, it is difficult to understand NBs’ desire to control which businesses exist, the products they sell, and how many customers buy from them. Khan
says
the
goal is to diffuse businesspeople’s economic and political influence. Even though this diffusion would be accomplished through coercion, she argues it promotes democracy.

Lynn
says
the NB mission is a story of good versus evil, with NBs opposing large successful businesses committing “moral crimes . . . looting and breaking the foundations of a good economy and a good society.” But how is it a moral crime for large numbers of customers to choose the same business?

Thomas Sowell and Adam Smith foresaw NB thinking. In 1995 Sowell and Thomas J. DiLorenzo
referred
to such people as “the anointed” and explained that the anointed see themselves as operating on a higher moral and intellectual plane than others do. This leads them to believe that their personal preferences should “supersede the preferences of everyone else.”

In 1759 Adam Smith
referred
to someone with this view as a “man of system,” who is “very wise in his own conceit” and “enamoured with the supposed beauty of his own ideal plan of government.” This type of person sees the world as a large chessboard and other individuals as pieces that the man of system moves around at will, seemingly ignorant of the fact that real people move of their own preferences and volitions.

There seems to be a sense of urgency in the movement to exert command over the economy. In a 2020
interview
, Khan said she and her colleagues see themselves as creating an opportunity to reset antitrust’s “foundational paradigm.” She offers: “Historically these moments of real contestability are rare, so there’s a tremendous amount of work to be done.”

Retiring FTC Commissioner Christine S. Wilson noted that Khan is taking
unprecedented
actions
to control the FTC and stifle dissent. This was on display in Khan’s 2022
initiative
to regulate how businesses learn about customers and maintain data security. Even though Congress has not passed legislation on these issues, Khan “
isn’t waiting around
” for Congress to act.

Wu provides additional insight into why NBs press beyond what Congress has authorized. After leaving his White House post, he used the occasion of a conference in Brussels to express his view that NBs should not let Congress get in the way of the NB agenda. Politico
quotes
him as saying, “I think it’s very important not to just have it focused on, you know, did Congress pass new legislation. . . . Congress at this point is possibly the least democratic branch of the United States government.”

Wu also
suggested
NBs should politicize courts. If current judges find that the movement’s preferred policies are not in today’s laws, Wu believes these judges should be replaced with ones that would pursue a progressive economic agenda.

What’s to be done? There is a need for Congress to continue to provide oversight of agencies, for judges to enforce the rule of law, and for those of us who engage in the public debate to continue to shine light on the actual practices and ideals of the NB movement. Transparency, good government, and sound reasoning are on the side of good policy.

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This article originally appeared in the AEIdeas blog and is reprinted with kind permission from the American Enterprise Institute.