The ‘Borking’ of America

Robert Bork set in motion pro-monopoly policies that have ravaged the middle class, particularly in small-town and rural America.

Speculation that Donald Trump may fire Robert Mueller is causing people to beef up on their Watergate history. Trump’s slow-motion purge of officials connected to the Russia investigation has drawn comparisons to the Saturday Night Massacre, in which Richard Nixon ordered the firing of special prosecutor Archibald Cox, burning through two attorneys general in one evening before finally finding a willing accomplice in Solicitor General Robert Bork. The renewed relevance of the episode is exposing a new generation of politicos to Bork’s name.

To the extent that people already remembered Bork, who died in 2012, it was mostly as the guy whose name became shorthand for failed Supreme Court nominations. Ronald Reagan nominated Bork to the court in 1987. Within hours, Ted Kennedy took to the floor of the Senate to deliver a blistering attack on Bork’s record and reactionary judicial philosophy. Kennedy painted a vivid picture of “Robert Bork’s America,” one “in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters…and the doors of the federal courts would be shut on the fingers of millions of citizens.”

The speech came to largely define mainstream perceptions of Bork’s long legal career, and the Senate’s rejection of his nomination permanently altered the Supreme Court confirmation process. But it was the now-forgotten testimony of Charles G. Brown, an obscure state official, that ultimately offered the more prescient vision of “Bork’s America,” one that had less to do with Watergate or civil rights and more to do with a fundamental economic shift toward gross inequality and concentration of wealth. Bork’s intellectual legacy set in motion policies that have ravaged the middle class, particularly in small-town and rural America. Those changes helped foster the resentment and despair that made a Trump presidency possible. Brown tried to warn us.

Brown, the West Virginia attorney general, addressed the Judiciary Committee on the twelfth day of Bork’s confirmation hearings. The danger in putting Bork on the Supreme Court, he testified, came from Bork’s radical views on antitrust—an esoteric but essential area of law that allows the government to prevent monopoly formation and anticompetitive business practices. Vigorous antitrust enforcement had thrived since the New Deal era. But in The Antitrust Paradox, published in 1978, Bork argued that everything about the doctrine was wrong. The only legitimate concern for antitrust enforcement, he claimed, was “consumer welfare,” meaning low prices. Consolidation was fine—great, even—as long as it led to greater efficiency, which would necessarily lead to lower prices or better service. There was little to fear from a monopolized economy, because if a monopoly ever abused its power, a new player would enter the market to undercut it. Other impacts of consolidation—on workers, on the political system, on entrepreneurship and innovation—should be ignored completely, sacrificed at the altar of efficiency.

If Bork’s jurisprudence were allowed to take hold at the Supreme Court, Brown argued, it would do lasting damage to the ability of government to protect the public against concentrated wealth and power. Brown warned that “the real victims of a Bork antitrust era on the Supreme Court will be the consumers, the small business entrepreneur, and the mid-size corporations.”

Brown understood that his testimony was unlikely to grab headlines. “Judge Bork’s effect on antitrust law is simply not as conducive to a ten-second spot on the evening news as other issues so hotly debated in these past weeks,” he conceded. Nevertheless, he concluded, “I submit to the committee that in no other area will the effect of a Bork appointment be so completely felt.”

But Brown was overlooking one thing: the “Bork antitrust era” had already begun. Even before publishing The Antitrust Paradox, Bork had indoctrinated a generation of lawyers into his worldview while serving as solicitor general. Before Bork, the federal government and courts defended competition as a principle, and stepped in to prevent mergers that would be considered trivial today. But by 1979, the Supreme Court was officially endorsing Bork’s claim that Congress had actually intended to adopt the “consumer welfare” standard when it wrote the first antitrust law in the 19th century. In 1982, the Justice Department formally revised its merger guidelines to incorporate the “consumer welfare standard,” leading to a dramatic decline in enforcement and an explosion of merger approvals that continues to this day.

The downturn in antitrust enforcement has remained a bipartisan tradition ever since it was initiated by the Reagan administration. The Clinton administration dedicated more resources to antitrust enforcement—most notably in a landmark case against Microsoft—but refused to reconsider Reagan’s merger guidelines against the backdrop of a wave of mergers in the 1990s. A huge decline in competition in the airline industry happened on Barack Obama’s watch; by the end of his presidency, just four airlines controlled 80 percent of the market. Even a few years before his death, Bork was still leaving his imprint on the antitrust landscape, authoring a study that argued that Google did not have a monopoly on search—never mind the practices Google deploys to undermine competitors across a range of services.

The victims of the “Bork antitrust era” have been just who Brown feared, as increased monopolization has devastated small businesses and consumers. Mergers have generally led to higher consumer prices, the opposite of Bork’s prediction. Black-owned businesses have been crushed by growing concentration, the Big Four airlines use their market power to gouge consumers with fees, and major mergers have led to deep regional inequality, spurred by the closure of hospitals, retail stores, rural airports and more. Brand new research shows that market concentration is a key reason for the long-term stagnation of workers’ wages. Today, we do live in Robert Bork’s America, but it is the one foreshadowed by Brown, not by Kennedy.

The good news is that a growing set of policymakers have finally woken up to this most destructive component of Bork’s legacy. The Democrats’ “Better Deal” economic agenda includes a section on reducing economic consolidation. Progressive think tanks are putting forward policies that promise to restore competition and innovation, and more House and Senate officials are taking heed. Progressive champion Keith Ellison joined last fall with several House Democrats to form a new antimonopoly caucus, and Senate Minority Leader Chuck Schumer acknowledged last summer that “namby-pamby” Democrats had been too weak for too long on antitrust.

What remains to be seen is whether fighting back against corporate concentration and monopolies will resonate with voters. Bork-style economic policy has further empowered the wealthiest, most entrenched players in our economy. Witness, for example, the HQ2 bidding war, in which Amazon has insisted on a national groveling contest over a few thousand jobs at the already-thriving company. And even monopolies that aren’t household names use their consolidated power to further extend their dominance. Just last week, the California senate narrowly rejected a bill banning Styrofoam at the behest of Dart Container, a company that controls over 50 percent of the foam cups market, and is one of Sacramento’s most prodigious lobbying and campaign money forces. Fighting back against powerful monopolies will be difficult, and while Democrats have committed to the fight on paper, they have yet to develop a proven winning message with voters.

When Tom Perriello ran for Virginia governor last year, he made taking on monopolies a major part of his campaign pitch, betting that voters in working class regions would respond to rhetoric about the economic effects of Walmart and other giants on their communities. Though Perriello did well in the rural communities he targeted, Ralph Northam defeated him soundly in the primary. Congressional candidates in Texas, Pennsylvania, Iowa, and Hawaii are trying to succeed where Perriello failed, but it is not yet clear that their anti-monopoly message will penetrate in a year when Democratic primary voters are more fixated on the immediate threat of Trump’s erratic authoritarianism. But the two problems, economic and political, are inextricable: political power has grown to be just as concentrated as wealth. We’ve been living in Bork’s America for so long that it is has come to feel inescapable. The challenge for progressive candidates is to convince voters that there is a way out.

Jordan Haedtler

Jordan Haedtler is a freelance writer and nonprofit professional. He manages the Center for Popular Democracy's Fed Up campaign, an initiative to bring the voices of working families and communities of color to the Federal Reserve. His pieces on climate change, politics, and the Fed have appeared in Grist, The American Prospect, The Nation, The Hill, and Huffington Post.