The Case for A Populist Antitrust Movement

For many decades now, antitrust enforcement has been a technocratic enterprise.

Economists and lawyers dominate the proceedings, mostly out of public view.

Political interest in antitrust is tepid at best.


This is all in stark contrast to the antitrust populism of the past, when antitrust was a topic of public debate and even a defining issue in the 1912 presidential election.

Many antitrust experts say that antitrust populism should be relegated to the dustbin of history.

Not Sandeep Vaheesan.

Vaheesan is a special counsel at the American Antitrust Institute in Washington, D.C.

Vaheesan has just authored a insightful law review article titled The Evolving Populisms of Antitrust (93 Nebraska Law Review 2, 2014)

“From its inception, antitrust law has sought to protect some relatively vulnerable group from the power of big businesses,” Vaheesan writes. “Even when it has been the standard-bearer of elite opinion, the Supreme Court has applied the antitrust laws in the name of protecting a particular group of non-elite Americans from the predations of powerful business enterprises.”

“In other words, antitrust has always been populist and claimed to ‘speak for the vast majority of Americans who work hard and love their country’ and “against a variety of . . . ‘fat cats’ and ‘Big Men.’” As articulated by the Supreme Court, antitrust law has spoken against big business on behalf of consumers, small producers, or both.”

Vaheesan says that today, some corporate antitrust commentators have called for the Supreme Court to abandon its focus on protecting consumers and focus exclusively on maximizing so-called economic efficiency, regardless of its distributional consequences

According to this school of thought, “the antitrust enforcement agencies and courts

should be indifferent toward whether a dollar goes to consumers in the form of savings or to producers and shareholders in the form of profits.”

But in his law review article, Vaheesan argues that “courts should reject this approach and strengthen the historic commitment of antitrust law to consumer populism.”

“Just as antitrust can help consumers, consumers can provide needed political support for antitrust enforcement,” Vaheesan concludes. “By establishing a consumer constituency, antitrust enforcers can ensure the continued vitality of U.S. competition laws. They can establish, to paraphrase Richard Hofstadter, antitrust prosecutions with an antitrust movement. In deciding between competing interests, antitrust law should categorically prefer one dollar of purchasing power for a consumer over one dollar of additional rents for a powerful corporation.”

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