Over the past year, critics of progressive efforts like S. 2992 – the American Choice and Innovation Online Act – to overhaul American antitrust law have been unnecessarily kind. Many go out of their way to assign saintly motivations to proponents like Sen. Amy Klobuchar. Their logic usually claims that S. 2992 may inadvertently cause a negative outcome, and its writers accidentally oversaw such consequences.
But what if pain is the point? What if the bill has been written with the intent to create such a toxic and unaffordable online environment that it drives people off the platforms covered by the legislation?
If you hear what Progressives tell each other, this shouldn’t come as a shock.
Klobuchar’s major allies in her antitrust fight are known as “Neo-Brandeisians.” They are members of a radical intellectual movement that wants to fundamentally transform the private sector. The core of this transformation regards antitrust law. These are the types of wonky battles that most Americans luckily never need to learn about. But the Neo-Brandeisian brand of anti-economics has everyday American consumers in their crosshairs.
The union between Klobuchar and Neo-Brandeisian ideologues is telling. While most on the political left identify as “Post-Chicago School” – those inherently skeptical of the free market’s ability to address concentration – the Neo-Brandeisians go even further and break with the American antitrust tradition entirely. To them, big is bad, unless it’s the government.
This includes when businesses are able to drive down prices or create new and innovative products. For Neo-Brandeisians, there is no tradeoff that can justify bigness. In her infamous Yale Law Review article, Federal Trade Commission (FTC) Chair Lina Khan’s main critique of Amazon is that the retailer keeps prices too low. In another piece Khan published with the anti-capitalist outlet Law and Political Economy Project, she argues that antitrust must be reconfigured toward the redistribution of economic and political power and away from concerns regarding price. That is to say, in a Marxist publication, Khan endorsed antitrust as the primary mode to bring about a socialist economy in America.
White House advisor Tim Wu similarly rejects how large-scale businesses try to drive down production costs and consumer prices. In what could easily be confused for a piece of absurdist art, Wu penned a New York Times op-ed where he lamented the affordability of flour for amateur bakers. To him and other Neo-Brandeisians, large businesses are inherently and existentially threatening to their understanding of social, economic and climate justice.
Klobuchar’s S. 2992 should be seen as key to this ideological crusade. When we see a part of the legislation that could raise prices, weaken cybersecurity, undermine privacy, damage national competitiveness or diminish convenience, don’t assume it's just an unintended consequence. A Neo-Brandeisian reading of S. 2992 leads us to the straightforward realization that the purpose of the bill is to cripple the businesses it covers: Amazon, Google, Meta and Apple.
The danger of Neo-Brandeisian theory is that it is more than an intellectual proposal. It’s akin to a religious movement. Regardless of evidence, proponents of this thinking – Amy Klobuchar, Bernie Sanders, Lina Khan, Elizabeth Warren – have blind faith that their mission is righteous. Theirs is a cruel god that demands human sacrifices. It is a god that would force every American to empty their pockets upon its altar. Neo-Brandeisians are banging on the door seeking converts. It’s best for us not to answer.
Zach Lilly is Deputy Director of State and Federal Affairs at NetChoice, a trade association committed to making the internet safe for free enterprise and free expression, in Washington, D.C. He has also served in the executive branch and as a policy adviser to former Rep. Dave Reichert, R-Wash.