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CHICAGO (Project Syndicate)With the prominent antimonopoly advocate Lina Khan having been appointed the new chair of the Federal Trade Commission, it is a good time to consider what influence the so-called New Brandeisians will have on U.S. antitrust law.

Khan is a leading figure in that movement, and another prominent exponent, Tim Wu, now sits on President Joe Bidens National Economic Council. Arguing that antitrust law and enforcement are too weak and ineffectual, the New Brandeisians, named for the late Supreme Court Justice Louis Brandeis, are more open than traditional antitrust experts to breaking up monopolies.

Their argument was that the robber baronsmen such as the oil tycoon John D. Rockefeller and the steel magnate Andrew Carnegieand their companies were simply too powerful. Their political and economic power were inconsistent with democratic self-government.

Even before the New Brandeisians achieved prominence, there was a growing consensus that U.S. courts and regulatory agencies do not enforce antitrust law as vigorously as they should. A long period of lax enforcement has led to more concentrated markets, higher prices for consumers, and skyrocketing corporate profits. A partial solution is to give regulators more resources and strengthen the standards that regulators use to approve big business mergers. A bill sponsored by Democratic Sen. Amy Klobuchar of Minnesota proposes to do precisely that.

But beyond supporting these simple measures, the consensus among antitrust experts dissolves. The debate is shaping up as one between centrist or center-left technocrats who consider more enforcement resources and higher merger standards sufficient, and New Brandeisians who seek much more. (The right seems to be sitting on the sidelines, merely grumbling that Big Tech companies discriminate against Republicans.)

For their part, the technocrats are committed to traditional antitrust analysis, which weighs the benefits of market competition against the advantages of size. They believe that firms should be allowed to grow by offering superior products and services, even if they end up dominating markets. Mergers should be permitted as long as they generate economies of scale that outweigh the anticompetitive effects.

The New Brandeisians draw their inspiration from the antimonopoly agitation of the Gilded Age. Late-19th-century populists and 20th-century progressives such as Brandeis were not primarily concerned with efficiency, nor did they distinguish carefully between the effects of monopoly on prices, wages, competition, and other economic variables.

Their argument was that the robber baronsmen such as the oil tycoon John D. Rockefeller and the steel magnate Andrew Carnegieand their companies were simply too powerful. Their political and economic power were inconsistent with democratic self-government. It was this problem that antitrust law was meant to solve.

In the new antitrust debate, Big Tech is the flashpoint. When the technocrats look at that sector, they see firms that offer superior products and services at low prices, or even at no price at all. Business practices that raise antitrust concerns can be handled under prevailing standards, and should be condemned only after proof that, despite appearances, they raise prices. But the New Brandeisians see the recurrence of Gilded Age monopolization and insist that while the harms are not recognized by traditional antitrust analysis, they are harms just the same.

One such harm is political interference. Monopolies no longer dole out bribes to legislators as they did in the 19th century, but Big Tech clearly exerts substantial influence on U.S. politics. Democrats are still seething that the Russians used Facebook to propagate misinformation before the 2016 election, while Republicans complain that Facebook FB, +2.03% and Twitter TWTR, +2.94% kicked Donald Trump off their platforms. Depending on how you look at it, YouTube GOOG, +0.43% either spreads conspiracy theories or censors legitimate political dissent.

Another concern is perceived unfairness. Google supplies search results that include listings for Google-owned products and services. The Apple App Store sells Apple AAPL apps that compete with third-party apps. Critics argue that these and other companies take advantage of information they obtain from competitors who use their platforms to give their own products and services a competitive edge.

Yet another problem is the loss of consumer autonomy, stemming from the fact that Big Tech knows everything about us, from our shopping habits and search histories to our medical records and personal communications. Never before has so much been known about so many people.

In authoritarian countries, this information is shared with the government. In the U.S., not so much; but it is shared with other companies, and it often falls into the hands of hackers and other bad actors. Worse, some tech companies have used their engineering prowess and psychological know-how to addict and manipulate users.

Finally, the Big Tech companies are seen as a threat to a diverse, textured internet economy. Many people lament the loss of quirky online offerings, which have been replaced by the drab monocultures of Facebook, Google, and Apple.

The suddenness of change helps to explain why people were once so upset when Walmart WMT, +0.46% moved in and destroyed many small towns central shopping districts. While prices fell, a unique, often beloved, local commercial ecosystem was lost. Now, many towns are plowing taxpayer dollars into downtown revitalization efforts, using public funds to recreate amenities that the public valued and that the market destroyed.

Against this backdrop, traditional economists argue that antitrusta technical area of the law concerned with economic efficiencyis not the solution. Threats to small towns or larger democratic and economic values are better addressed with campaign finance laws, zoning laws, health and safety regulations, and so forth.

There is much good sense to this view: if we replace antitrust law with an all-things-considered judgment about the good and bad that any large firm may do, regulators and courts will flounder, and political considerations will intrude. It would be better to address the pathologies of the tech market with well-defined legislative reform.

But New Brandeisians would counter by pointing out that big companies can use their political power to obstruct those very reforms. After all, the tech giants have already opposed privacy and data protections, and regulations of corporate speech will go nowhere with the current Supreme Court precedents that protect it.

Remember, the main 19th-century worry about monopolies was that they wielded too much political power. If you cut them down to size, perhaps they wont, allowing democracy to flourish. Antitrust law is the only existing tool in U.S. law for converting a big company that has too much power into a bunch of small companies that dont.

Eric Posner, a professor at the University of Chicago Law School, is the author, most recently, of The Demagogues Playbook: The Battle for American Democracy from the Founders to Trump.

This commentary was published with permission of Project SyndicateBidens Antitrust Revolutionaries

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What's the goal: Democracy or efficiency? How to understand the impassioned debate over Big Tech and antitrust - MarketWatch

Written by Satvik Varma

Given the socio-political milieu we currently find ourselves enveloped in, we frequently need reaffirmation that our Constitution is supreme. That it provides the citizens many rights and liberties and has corresponding duties. That the rights can be restricted only in reasonable and limited circumstances. That our judiciary will step in to prevent state excesses and uphold the letter of the law and the spirit of our Constitution. That while the judicial system may be laden with delays, those are only cracks and it is otherwise intact and as multiple recent judgments from across the country have demonstrated adequately independent. And no matter how majoritarian a government we may have, we are still a democracy of the people, for the people and by the people.

While the judgments delivered by the division bench of Justices Siddharth Mridul and Anup J Bhambhani of the Delhi High Court are indeed only bail orders, an analysis of their contents and the jurisprudence they lay down highlights the role of constitutional courts. Namely, to interpret the law purposively and in a way that advances the objectives of the legislation. Its job is to read the law in such a way that it enhances personal liberties while maintaining a balance with the security of the state. It is to ensure that constitutionally accorded and legally protected citizen rights are not left to the mercy of executive supremacy. And at a time when society is polarised and fractured across various lines and where ideology has reached a vanishing point, courts will do all within their mandate to prevent the misuse of the law and alleviate the anxiety that has come to surround individuals.

For longer than we can imagine, law and society theorists have been preoccupied with attempts to explain the relationship between legal and social change. They view the law both as independent and dependent and variable (cause and effect) in society and emphasise the interdependence of the law with other social systems. British social reformer Jeremy Bentham expected legal reforms to respond quickly to new social needs and to restructure society. Contrastingly, German legal scholar Friedrich Karl von Savigny held that it is the law that follows social change. Whatever view one may support, it cant be denied they influence each other. The law, after all, reflects the will and wish of society as we have witnessed in India in the decriminalisation of homosexuality or triple talaq being deemed against our constitutional values or the striking down of adultery or the recognition of the rights of the transgender community or the granting of equal status to women in temple entry.

This brings us to the fact that the interplay of law and society leads to the development of both.Advancing this proposition, Nobel laureate Amartya Sen believes that legal development is not just about what the law is and what the judicial system formally accepts and asserts, but instead must take note of the enhancement of peoples capability their freedom to exercise the rights and entitlements that we associate with legal progress. For Sen, freedom is both the primary objective of development, and the principal means of development. Accordingly, he holds that development is enhanced in democracy by the protection of human rights. Such rights, especially freedom of the press, speech, assembly and so forth increase the likelihood of good governance. Resultantly, a nations development cannot be considered independent of its legal developments.

The Indian judiciary has made lasting contributions to our development whether by its conceptualisation of public interest litigation or simply by giving meaning to our Fundamental Rights by carrying forward the intention of our Constitution makers for example, declaring privacy a Fundamental Right. In this process, our courts have strengthened the Indian federation, deepened our democratic ideas, facilitated the working amongst various arms of government and furthered the objective of our Constitutions Preamble to promote fraternity and to maintain unity and integrity of the nation.

Examined with this spirit, the recent bail orders of the student activists advance the cause of justice, protect citizen rights, thereby strengthening our democracy, address the prevailing societal needs and consequently contribute to our nations development. After all, our courts do not function in a vacuum and our judges surely have views on whats happening around them. Reports of the fact that less than 2 per cent of the people arrested under UAPA across the country in five years till 2019 were eventually convicted (per data compiled by National Crime Records Bureau) must have weighed on the judges, as the process then becomes the punishment. They must also have been informed that a challenge to the constitutional validity of the 2019 amendments to UAPA, that terms individuals as terrorists, is currently pending where, and while theres no stay on the operation of the law, the state has not even filed its response. Should not the courts then reinstate the liberty of those incorrectly indicted? Doing right, Justices Mridul and Bhambhani only upheld our democratic traditions and advanced our constitutional values. In doing so, they restored peoples faith in our judiciary.

Going forward, one hopes that every time our democracy is in peril, our judges, in keeping with their oath to office bear true faith and allegiance to the Constitution and will, without fear or favour, affection or ill-will uphold the Constitution. If in the discharge of such duties, they embrace the role of judicial torch-bearers they will also be contributing to our nations development. Each time this happens will indeed be a great moment in the history of our democracy.

The writer is a senior advocate based in New Delhi

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UAPA bail: A triumph of rights and democracy - The Indian Express

As the Big Lie of a stolen election continues to dominate the Republican Party, GOP-controlled states enact restrictive voting laws and pursue preposterous election audits, aspiring candidates embrace the fiction of a stolen 2020 election, and a majority of GOP voters still believe Trump is the true president, the obvious questions follow: Where is this all headed? And is there any way out?

In one telling, the Republican Party will eventually come back to its senses and move past former President Donald Trump and Trumpist grievance politics, especially if Republicans lose a few elections in a row and realize that its a losing strategy. But theres another possible outcome: More contested elections, more violence and, ultimately, a collapse into competitive authoritarianism enabled by electoral advantages that tilt in one partys favor.

Trump and his particular style of party leadership are easy and obvious targets to blame for the decline of American democracy, as well as the Republican Partys increasing illiberalism. But if Trump was transformative, the more important question is: Why was he able to succeed in the first place?

The most compelling theory based on historical patterns of democratic decline is that hyper-polarization cracked the foundations of American democracy, creating the conditions under which a party could break democratic norms with impunity, because winning in the short term became more important than maintaining democracy for the long term.

In order for democracy to work, competing parties must accept that they can lose elections, and that its okay. But when partisans see their political opposition not just as the opposition, but as a genuine threat to the well-being of the nation, support for democratic norms fades because winning becomes everything. Politics, in turn, collapses into an all-out war of us against them, a kind of pernicious polarization that appears over and over again in democratic collapses, and bears a striking similarity to whats currently happening in the U.S.

Theres no shortage of plausible explanations for why U.S. politics has become so polarized, but many of these theories describe impossible-to-reverse trends that have played out across developed democracies, like the rise of social media and the increased political salience of globalization, immigration and urban-rural cultural divides. All of these trends are important contributors, for sure. But if they alone are driving illiberalism and hyper-partisanship in the U.S., then the problem should be consistent across all western democracies. But it isnt.

Whats happening in the U.S. is distinct in four respects.

First, the animosity that people feel toward opposing parties relative to their own (whats known as affective polarization in political science) has grown considerably over the last four decades. According to a June 2020 paper from economists Levi Boxell, Matthew Gentzkow and Jesse M. Shapiro, the increase in affective polarization in the U.S. is the greatest compared to that of eight other OECD countries over the same time period.

Second, the change in how Americans feel about their party and other parties has been driven by a dramatic decrease in positive feelings toward the opposing party. In most (though not all) of the nine democracies, voters have become a little less enthusiastic about their own parties. But only in the U.S. have partisans turned decidedly against the other party.

Boxell, Gentzkow and Shapiro caution that the cross-country comparisons are not perfect, since they rely on different survey question wordings over time. But they also dont pull any punches in their findings: [O]ur central conclusion that the U.S. stands out for the pace of the long-term increase in affective polarization is not likely an artifact of data limitations.

Third, more so than in other countries, Americans report feeling isolated from their own party. When asked to identify both themselves and their favored party on an 11-point scale in a 2012 survey, Americans identified themselves as, on average, 1.3 units away from the party that comes closest to espousing their beliefs, according to an analysis from political scientist Jonathan Rodden. This gap is the highest difference Rodden found among respondents in comparable democracies. This isolation matters, too, because it means that parties cant count on enthusiasm from their own voters instead, they must demonize the political opposition in order to mobilize voters.

Fourth, and perhaps most significant, in the U.S., one party has become a major illiberal outlier: The Republican Party. Scholars at the V-Dem Institute at the University of Gothenburg in Sweden have been monitoring and evaluating political parties around the world. And one big area of study for them is liberalism and illiberalism, or a partys commitment (or lack thereof) to democratic norms prior to elections. And as the chart below shows, of conservative, right-leaning parties across the globe, the Republican Party has more in common with the dangerously authoritarian parties in Hungary and Turkey than it does with conservative parties in the U.K. or Germany.

The U.S. is truly exceptional in just how polarized its politics have become, but its not alone. People in countries with majoritarian(ish) democracies, or two very dominant parties dominating its politics like in the U.S. think Canada, Britain, Australia have displayed more unfavorable feelings toward the political opposition.

In fact, in a new book, American Affective Polarization in Comparative Perspective, another team of scholars, Noam Gidron, James Adams and Will Horne, shows that citizens in majoritarian democracies with less proportional representation dislike both their own parties and opposing parties more than citizens in multiparty democracies with more proportional representation.

This pattern may have something to do with the shifting politics of coalition formation in proportional democracies, where few political enemies are ever permanent (e.g., the unlikely new governing coalition in Israel). This also echoes something social psychologists have found in running experiments on group behavior: Breaking people into three groups instead of two leads to less animosity. Something, in other words, appears to be unique about the binary condition, or in this case, the two-party system, that triggers the kind of good-vs-evil, dark-vs-light, us-against-them thinking that is particularly pronounced in the U.S.

Ultimately, the more binary the party system, the stronger the out-party hatred. But there is also something particular about whats happening in the U.S., even compared to other majoritarian(ish) democracies. For example, the major parties on the right in Canada and Australia have not become as illiberal as their American counterpart. Canadian politics scholars would point out that in Canada, regional identities are often stronger than national partisan identities, and this regionalism has kept Canadian politics more moderate. And Australian scholars would point out that ranked-choice voting has exerted a moderating force on Australian politics.

In the U.S., meanwhile, (and to some extent the U.K.), politics have become extremely nationalized. Cities became more socially liberal, multiracial and cosmopolitan, most of the rest of the country held onto more traditional values and stayed predominantly white, and suburbs turned into the political battleground. And as Rodden explains in Why Cities Lose, parties with rural strongholds often wind up with disproportionate electoral power, since their opposition tends to over-concentrate its vote in lopsided districts. This rural bias is especially pronounced in the U.S. Senate, for instance.

But while its true that cultural values have emerged as a more important organizing conflict across advanced democracies (one compelling explanation is that following the collapse of Communism and the rise of neoliberalism in the 1990s, parties of the left and right converged on support for market economics), the urban-rural split in countries with more proportional voting systems is far less binary. Thats in large part because in proportional democracies, multiple parties can still win seats in geographically unfriendly areas, with coalition governments including some balance of both urban and rural representation.

Its not just the lack of a stark urban-rural divide that makes proportional democracies less polarized, though. There is also less of a clear strategic benefit to demonizing the opposition in an election that has more than two parties. For instance, in a multiparty election, taking down one party might not necessarily help you. After all, another party might benefit, since negative attacks typically have a backlash. And because parties can take stronger positions and appeal more directly to voters on policy, theres less need to rally your supporters by talking about how terrible and dangerous the other party is. Moreover, in systems where parties form governing coalitions, demonizing a side youve recently been in a coalition with (or hope to be in the future) doesnt ring quite as true.

While it is both easy and appropriate to criticize Trump and fellow Republicans for their anti-democratic descent in service of the Big Lie, it takes more work to appreciate how the structure of the party system itself laid the groundwork for the former presidents politics of loathing and fear. A politics defined by hatred of political opponents is a politics ripe for hateful illiberalism.

The new scholarship on comparative polarization is crucial in understanding this dynamic. In one sense, it offers a very depressing view: Given the current binary structure of American party politics, this conflict is mostly locked in. No level of social media regulation or media literacy or exhortation to civility is going to make much of a difference. But it also offers a kind of master key: If the structure of a party system is as crucial as these studies suggest it is, then the solution is obvious: The U.S. may want to change its voting system to become more proportional.

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Why The Two-Party System Is Wrecking American Democracy - FiveThirtyEight

Today, politicians of both parties are playing Americans against each other to stay in office. For example, Sen. Joe Manchin, D-W.Va., a rich senator, is pushing against the For the People Act, which most West Virginians want to see passed, and is pushing against ending the filibuster, a supermajority requirement added by accident that makes it impossible to pass bipartisan legislation.

Heres how our country has gotten so corrupt and how Manchin is standing in the way of fixing it, and fixing democracy in the process.

The For the People Act would make sure that those who donate to political campaigns and political ads are disclosed and known, it would try to stop campaign finance corruption, try to stop legalized bribery and the revolving door, it would stop voter suppression like reducing polling station numbers, voter roll purges and felon disenfranchisement, and it would end gerrymandering, drawing congressional districts to favor one political party over another.

But Manchin is against it, because he is for a corrupt system. He says he wants to support bipartisanship, but his stance is creating more problems and pressure and more partisanship. Bipartisanship is not always a good thing. After all, the Fugitive Slave Act was part of a bipartisan compromise. What we need is nonpartisanship, not bipartisanship.

Originally posted here:
LETTER: Manchin is standing in the way of fixing our democracy - Charleston Gazette-Mail

Warren founded Generation Citizen, which engages young people in political activism to promote their civic education, and a visiting fellow at the SNF Agora Institute at Johns Hopkins University, which seeks to strengthen global democracy by improving civic engagement and inclusive dialogue.

The right to vote, the bedrock of our country's democracy, is under attack. Predicated on former President Donald Trump's continued insistence that the election was stolen, Republicans have launched an unprecedented push to make it harder to vote under the veneer of election integrity. According to the Brennan Center for Justice, at least 389 bills have been introduced in 48 states to restrict access to voting, and 14 states have already enacted laws that tighten the rules around casting ballots.

In response, more than 100 prominent scholars recently signed onto a statement declaring that democracy is "now at risk", and they called for urgent federal action, noting that several states are becoming "political systems that no longer meet the minimum conditions for free and fair elections." President Biden has enlisted Vice President Harris to lead the administration's efforts to protect voting rights. Democrats in Congress are waging an all-out campaign to pass the For the People Act (a comprehensive voting rights bill known as H.R. 1 in the House and S. 1 in the Senate) and the John Lewis Voting Rights Advancement Act (H.R. 4), which would restore provisions of the 1965 Voting Rights Act struck down by the Supreme Court.

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The reality, however, is that passing both bills is highly unlikely, given fervent resistance from Democratic Sens. Joe Manchin of West Virginia and Kyrsten Sinema of Arizona to abolishing the filibuster. Signing the bills into law would also be insufficient efforts to actually save our democracy.

Biden clearly understands the crisis in democracy, remarking at his first press conference: "I predict to you, your children or grandchildren are going to be doing their doctoral thesis on the issue of who succeeded, autocracy or democracy, because that is what is at stake." The administration's approach to the domestic and global crisis in democracy has been centered on focusing on voting rights and planning a "Democracy Summit," bringing together countries and civil society around the world dedicated to the pursuit of democracy.

Voting and a summit are not enough. On other issues, like the economy, infrastructure, racial inequality and climate change, the administration has launched bold efforts, allocating trillions of dollars of funding and passing transformational policies that may remake the fabric of American society for generations to come. Biden should recognize the existential nature of the threat to democracy, and articulate and pursue a similarly bold democracy agenda. This agenda should focus on the hyper-local and the macro-global: promoting democracy at the most local levels of government, while also leading a global vaccine distribution plan that demonstrates the soft power of the American government at the international stage.

Protecting the right to vote is crucial. Republicans are pursuing regulations that are race-based and will disproportionately restrict access to people of color. But the crisis in democracy goes far beyond access to the ballot box.

The Economist Intelligence Unit's Democracy Index evaluates democracies around the world, measuring 60 indicators across five general categories: electoral process and pluralism, the functioning of government, political participation, democratic political culture and civil liberties. The United States currently ranks 25th out of 167 countries analyzed marking it as a flawed democracy.

The crisis in democracy is not just an American problem. According to the index, less than 9 percent of the world's population currently lives in a "full democracy." More than a third of the world's population lives under authoritarian rule.

The fact that democracy is receding across the globe demonstrates the endemic nature of the problem: It goes far beyond any leader or political party. Individuals are increasingly distrustful of a system that they feel like has promised much, and offered little in return, especially as economic inequality increases across the world. The fact that China, as an emerging power, has provided an alternate form of government is threatening. China's average GDP growth of 7.01 percent from 2013 to 2020 marks one of the world's highest, while its rank on the Democracy Index is one of the world's lowest. China's autocratic system is attempting to demonstrate that countries can build economic power without democracy.

In the wake of China's rise, Biden sees his role in restoring democracy as pursuing policies that will strengthen the economy and lessen inequality, proving, as he articulated in his speech to a joint session of Congress, that "democracy still works, that our government still works and we can deliver for our people." He needs to go beyond delivering results and invest serious resources into the local aspects of democratic culture, and the global potential of American democratic power.

At the local level, studies have articulated that the increasing focus on the federal level furthers polarization and democratic dysfunction. Conversely, local cities and towns across the country have the potential to productively engage citizens in democratic engagement. The city of Durham, N.C., has begun to implement an Equitable Community Engagement Blueprint, drafted in collaboration with community members, to authentically engage and involve community members in every step of the city's decision-making processes. Detroit has formalized a system of community "block clubs," connecting the city to community groups, business owners, faith leaders, educators and everyday residents, which has proven vital for vaccine distribution. The city of Seattle recently approved $1 million in spending to support the creation of a participatory budgeting process in the city. A recent bipartisan congressional effort has focused on a $1 billion fund for civics education in districts across the country. These experiments are occurring across the country the administration should highlight these efforts and allocate serious monetary resources to support and scale their implementation.

Globally, the Biden administration can and should continue to articulate a more forceful and ambitious comprehensive strategy to improve vaccine distribution. While the United States roars back, countries across the world, from India to Latin America, are experiencing the worst of the pandemic. While the administration has backed a global waiver to intellectual property protections around Covid-19 vaccines and recently committed 500 million vaccine doses to the rest of the world, much more is needed. Indeed, the World Health Organization estimates $11 billion vaccine doses are needed for 70 percent immunity. The U.S. needs to convince more democracies to give more vaccines and needs to ensure that countries can use intellectual property to create their own vaccines.

Indeed, this accelerated pace is still behind China's global vaccine distribution. To date, China claims it has sent "350 million doses of vaccines to the international community, including vaccine assistance to over 80 countries and vaccine exports to more than 40 countries."

Given the Biden-articulated choice between Chinese autocracy and U.S. democracy, countries may very well be persuaded by the Chinese model if they see them as better able to provide real results. If the U.S. is serious about showing that its model of democracy can work, it must demonstrate it can lead the world in ending the pandemic.

Ensuring that all Americans can vote is vital to a functioning democracy. But it is just one lever in ensuring that democracy can survive, and thrive. As the president has noted, the fate of democracy itself may be at stake. We should respond with that level of ambition.

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