Vaheesan on Antitrust in Two Gilded Ages

Sandeep Vaheesan, Regulations Counsel at the Consumer Financial Protection Bureau, has reminsicent of a classic article by my emeritus Georgetown Law colleague (and dean who hired me) Robert Pitofsky, The Political Content of Antitrust.  Mr. Vaheesan’s paper is Accommodating Capital and Policing Labor: Antitrust in the Two Gilded Ages:

In enacting the antitrust laws, Congress sought to prevent big businesses from maintaining and augmenting their power through collusion, mergers, and monopolistic practices and also aimed to preserve the ability of workers to act in concert. The antitrust laws have at times produced significant benefits for Americans. Antitrust achievements include the restructuring of the oil industry in 1911, the creation of competitive market structures in the mid-twentieth century, and the termination of AT&T’s telecommunications monopoly in 1984.

Yet, the history of antitrust in the United States is not one of uninterrupted successes. Over two multi-decade periods, the executive branch and federal courts, in enforcing and interpreting the antitrust laws, have failed to advance Congress’ vision and indeed inverted Congressional intent. During the original and current Gilded Ages, the antitrust laws were and have been used to protect the power of large-scale business and also to limit the autonomy of workers to organize and seek higher wages and better working conditions. Through this anti-labor application, the federal government has employed antitrust to aid big business, rather than restrain its power.

Despite this history of accommodating capital and policing labor, the antitrust laws can still be reinterpreted and redeemed. Executive and judicial action can remake these laws to control the power of large corporations through competitive market structures and also protect the freedom of all workers to organize for higher wages and better working conditions. A renewal of antitrust, in accordance with the expressed purposes of Congress, would help remedy the inequities of the New Gilded Age and create a more just society.

As it happens, just this morning I had another illustration of the appeal of the Gilded Age and Progressive Era for contemporary political analysts and commentators in an episode of the Washington Post’s “Daily 202,” podcast, Why a Republican strategist thinks we’re in a new Gilded Age.