Jul 14, 2026
On July 14, The Capitol Forum held a conference call with Sean Flaim, Visiting Scholar at The Catholic University of America Columbus School of Law and Co-Chair of the American Bar Association Antitrust Section’s Legislation Committee, to discuss his recent article for The American Prospect, “The Assault on Congress’s Anti-Monopoly Solution”. The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: Hello, everyone, and welcome. I’m Teddy Downey, Executive Editor here at The Capitol Forum. And today I’m pleased to be joined by Sean Flaim, Visiting Scholar at the Catholic University of America, Columbus School of Law and Co-Chair of the American Bar Association Antitrust Sections Legislation Committee. He is also a Senior Attorney in the federal government.
We’ll be talking about his recent article, “The Assault on Congress’s Anti-Monopoly Solution,” which examines the historical origins of independent agencies, the relationship between antitrust and constitutional structure, and the implications of the Supreme Court’s recent decision in Trump v. Slaughter. Sean, thank you so much for doing this today.
SEAN FLAIM: Yeah, thank you so much. And just to start this off, as a Senior Federal Government Attorney, I am here in my personal capacity and nothing I say should be attributed to the federal government or any entities within. Thanks.
TEDDY DOWNEY: Yeah, important note to get things started. So, I think maybe to set the scene for everyone here, it would be good to just get a quick background from you on what happened recently in this Trump v. Slaughter decision.
SEAN FLAIM: So, Trump v. Slaughter, and its companion case Trump v. Cook, were cases challenging the President’s removal power over multi-member commissions. In Slaughter, it was Rebecca Slaughter’s position from the Federal Trade Commission. And in Cook, it was — I can’t remember her first name, but one of the members of the Federal Reserve, Lisa Cook. Lisa Cook, yes. And the cases came out pretty differently.
So, in Trump v. Slaughter, what the Supreme Court did is followed a line of decisions going all the way back to a case called Myers v. United States, saying that under the Constitution, under Article II, that the President has removal power over anybody who is in the Executive Branch. And it specifically overruled a case called Humphrey’s Executor that was decided in 1938, which limited that, which was the first case that really limited Myers, saying that multi-member commissions, independent commissions like the FTC, were only allowed to be removed for cause, not for anything else.
The Supreme Court has been slowly kind of chipping away at that decision, especially over the last twenty years. And basically, in Trump v. Slaughter, they put the final nail in the coffin. They overruled Humphrey’s Executor and upheld the firing basically of Rebecca Slaughter.
In Cook, on the other hand, it was kind of an interesting decision. Because in Cook, Chief Justice Roberts actually went through the history of the various banks of the United States and used that to kind of justify to say that the Federal Reserve was a different type of entity and kind of used this history and tradition that he ignored in the Slaughter case in order to uphold her for cause removal.
It actually went a little bit further. It’s not just for cause removal, but actually says that she needs due process rights. Like if she’s going to be removed for cause, she needs to have notice of the allegations against her. There needs to be some sort of proceeding. So, it’s actually even more insulation than was ever put forward for any of the other independent commissions.
And it is an interesting decision because what it fundamentally comes down to is Chief Justice Roberts says, here is the one institution, the Federal Reserve, that most protects the interests of concentrated economic power, and we’re going to leave that one alone. Because I don’t know, you know, I’m not going to attribute things to John Roberts. But it was not coincidental that all of the other commissions that the President now has removal authority over are ones that disciplined private power, whether it was the FTC, generally with corporations, but things like the EEOC for discrimination, the Securities and Exchange Commission for the securities markets.
So, it set up this basically this enforcement. The Federal Reserve has enforcement authority. It’s like, so it wasn’t on the issue of enforcement. It was which one was most important, basically, to concentrated economic power.
TEDDY DOWNEY: And I want to get into what it means practically in a second. But first, I would like to get your thoughts on (a) how incoherent was the logic of the court’s decision on these two decisions, these two opinions? And then also, what do you think that it means for just the rule of law at this point?
We’ve seen a lot of Supreme Court decisions that seem not to care about precedent, not to care about history, not to really care about legislative intent, that are just so nakedly focused on the outcome, which is either accruing authority to the President or helping big business, I think are kind of the two pillars, if you’re just looking at outcomeoriented. You could add in some other elements there if you wanted. But what do you think? Where do you think we are with the Supreme Court and the rule of law?
SEAN FLAIM: Sure. So, I mean, yes. I mean, you hit the nail on the head. I mean, the two opinions are not internally consistent with each other. And actually, I think it was Amy Coney Barrett who actually wrote a really persuasive, I think, dissent in the Cook case, essentially arguing that. That you’re drawing kind of an arbitrary line between the two, and you’re justifying it on history. But here you are in a companion case, overturning a precedent, which is also history. It’s 90-something, almost 100-odd years, of history of the government being set up in this fashion, and Congress now being told that it’s not able to do it. And this isn’t the first. These aren’t the first cases — even this term or in prior terms — that have kind of done this, that have taken powers out of Congress’ hand.
And the best other case I can describe from this term that people know about is Louisiana v. Callais, where, essentially, the Supreme Court has written the 15th Amendment’s enforcement power out of Congress’s hands, saying that they’re no longer able to enforce the Voting Rights Act as written. And when Justice Alito wrote that decision, he wrote it in constitutional terms, basically asserting that the Supreme Court is the ultimate arbiter of the Constitution, which, if you look at the Constitution itself, is not actually anything listed in there.
All three branches have a role in determining what the Constitution means. And, in my opinion, Congress is actually the one that has the primary role in that portion. It’s just ceded that role to the executive branch and the judicial branch. But at any time, I think it could take it back if the political winds lined up.
I was going to say, I think that kind of answered the question. The only thing I would go into, in terms of the overall rule of law, one of the things that makes law, kind of a fundamental thing is the kind of the stability. And that’s the whole point behind precedent. Once a decision is made, the stability of the law and the ability of people to predict what’s going to happen, because we know the rules in advance, allows people to do planning. And that applies to individuals just as much as it does to businesses.
And we’ve now actually entered an era with Trump v. Slaughter, where businesses won’t be able to plan appropriately, knowing who the president is. If the next president comes in and hires Lina Khan back or somebody even more pro-enforcement — I know a few — all of a sudden, you’re going to see whiplash in terms of the activity of the FTC.
And, of course, you’re going to have the Supreme Court trying to weigh in on this more aggressive enforcement, trying to pull back power. But this is going to end up being kind of an endless cycle. I mean, the whole point behind law is this principle, I think we call equal application, like the rules apply to everybody.
And when you have wild swings in power, you have the ability for one president to set one set of rules, one president to set another set of rules — and Congress is kind of, by nature, also the slowest body. Maybe the Supreme Court’s a little bit slower — but it’s hard to keep up with an aggressive executive on the Democratic side or the Republican side.
TEDDY DOWNEY: Yeah, I want to get into what it practically means in a minute, but your piece goes a lot into the history of why these institutions were designed this way. Why did Congress design the agencies the way that they did, these independent agencies? And then maybe after that, we can talk about the practical effect of what has been undone.
SEAN FLAIM: So, I’ll actually answer that question by going back a little bit further into history and just talk about the Constitution itself. The Constitution was written by people who were thoroughly versed in British common law and everything else. Antimonopoly has existed since the 1600s in British law.
The monopolies that kind of existed around the time the Constitution came out were the government-sanctioned ones. The British East India Company is a great example. The framers knew this while they were drafting the Constitution, and it influenced basically everything that they did.
I mean, the various checks and balances between Articles I, II, and III are all anti-monopoly design, trying to break up the various power centers in government to make sure that no branch is going to be able to be captured by a single interest at any given time.
And so, obviously, the Supreme Court was actually one of those. The lifetime appointment was meant to insulate that from being captured altogether by anything else. Congress, if it was captured, there’s an election every two years. If the presidency is captured, there’s an election every four. So, like, everything about the Constitution was designed that way.
And if you fast forward to the Bill of Rights — a lot of people don’t know — but one of the proposed amendments when they were doing the Bill of Rights was an anti-monopoly amendment. And the only reason it didn’t actually end up passing was because the various founders were concerned that it would interfere with two things, (1) the establishment of a national bank, and (2) the Progress Clause, so patents and copyrights. Both of those are what are government-granted monopolies. And so, they were afraid if they just put in this generic anti-monopoly amendment, it would stop them from doing the certain things that they thought should be done.
But this history, if you go through it from the founding then through the 1800s, all the states had common law antimonopoly power. You could bring a case if there was a monopoly inside the state, and you could get enforcement within the state courts and whatever else. And it wasn’t until around 1880 that Ohio went after – I believe it was Standard Oil. But they were able to break up the monopoly within Ohio. But Standard Oil just reincorporated itself in New Jersey next door and was able to reestablish their monopoly within a month or two after the decision breaking them up in Ohio.
That’s what led to the Sherman Act. And the Sherman Act was, again, this response, this competition, actually, between, people who wanted to do monopolies and Congress trying to figure out ways to stop them. And so, we had the Sherman Act that was passed.
And five years after the Sherman Act was passed, the Supreme Court weighed in and said, well, this whole sector of the economy, it’s local. It’s private. It has nothing to do with antitrust. And so, five years later, after Congress passes a criminal statute, the Supreme Court says, no, well, it doesn’t apply to somebody that you obviously wrote the statute to apply to. And then you see later on, the presidency — Teddy Roosevelt’s a great example, in 1904, used the statute to great effect to break up — sorry, it was E.C. Knight. I’m trying to remember exactly what it was in the case, but used it to its function in terms of breaking up a monopoly. And so, you could see the executive was enforcing it.
But then you could see later, the next administration, when it shifted over to the other party, enforcement went to nothing. And, in fact, during the Taft administration, there was a great consolidation in the money system. And towards the end of the Taft administration, Congress started an investigation of what they called the money trusts. The money trusts were basically coordinated boards of directors and things in Wall Street that were controlling credit throughout the entire country on a monopoly basis.
And Congress created what’s called the Pecora Commission. It started while President Taft was still in office. It did a number of hearings during the last two months of his term. If you remember back then, we turned over in March. And in March, when — I’m forgetting the president. Anyways, when the presidency turned over in March, he continued to support the Pecora Commission. And there was a great report that was issued. And that became part of Louis Brandeis’s “Other People’s Money,” where he basically broke it down for a regular, a general, reader’s audience, what was going on and why this was so bad.
And “Other People’s Money” is actually what led to the creation of the FTC. And what was the FTC meant to do? Well, we have five commissioners that are only removable for a cause. So, all of a sudden, you have an independent power center created in the government. Five commissioners, three from one party, two from the other. So even within the commission, you have two different power centers, minimum.
And then you have different authorities. You have a quasi-legislative authority, the ability to do 6(b) reports, to tell Congress about bad conduct, to even write rules, although it was never really exercised that much. Here’s your quasi-legislative authority. You had the quasi-executive authority. There were certain things they could do on an executive basis where they could actually physically go into court and do things.
And then they also had the quasi-judicial where they had their own internal judicial review. It was more limited. It was just injunctive relief that was appropriate, never monetary relief that had to go to the courts. But those three powers were meant to compete with each other. Which one was going to be the one that was going to be most effective to discipline private power?
So, every aspect of the Federal Trade Commission was designed with competing powers or different ways that different ideas could surface. And whatever the best one was going to arise is the one that should win. And the reason that they came up with the FTC, of course, was, as I said, the presidency would enforce and then it wouldn’t for four years, would enforce for another four years. And so, with this independent power center, you have a new competitor with the president in terms of enforcement. So, the FTC, which is bipartisan, will enforce during those four-year periods where the president isn’t that interested in doing it.
And so, when you’re going on that — and I’ll stop right there. But essentially, the whole design, the design of the FTC, was so thoughtful in thinking through how do we create these competing power centers? I’d argue as much thought was put into the Federal Trade Commission Act as was put into the Constitution itself.
TEDDY DOWNEY: And one of the things you mentioned in the piece is that the history behind the FTC and the other independent agencies was to stagger the appointments to inoculate it from the swings in political power. That was a key feature, correct?
SEAN FLAIM: Yeah, that was a key feature. I mean, you had people that were there for seven years. If you’re a president, you’re going to get to nominate pretty much all of them if you have an eight-year term. But otherwise, I don’t know that everybody expected that everybody was going to have eight-year terms or whatever else, but that’s why you had to have the split between commissioners. Even if you had a president that was going to be in office for eight years, he still had to appoint two people of the opposing party. So, you never were going to get that situation where the agency was going to get captured the same way that the executive would every four years.
TEDDY DOWNEY: And then let’s talk quickly about just the practical effect of allowing the president to fire anyone at any time from an independent agency. To me, the practical effect — I’m curious to get your response — is there’s no point in ever being a minority commissioner. Why would you do it? You get fired immediately if you dissent or do anything the president doesn’t want.
To your point about the certainty, you’re basically just making it another arm of the presidency and you just take a lot of the — the point of the whole thing. Why do you have a lot of employees? If the thing can just be operated out of the White House, why do people work there? What are they doing all day? What’s the point of the Chairman even if you’re just taking orders from the White House? The whole concept of it seems to be completely turned upside down. And if you think about some of the interesting things that happen in an independent agency, well, a lot of the ideas can come from dissents. Some of the out-of-party commissioners can be interesting, influential, have ideas, push back.
And then on the flip side, when they agree, they lend more legitimacy to decisions by having them be bipartisan. You lose all of that. That’s all out the window. Just from a practical standpoint of operating the government, how dramatic of a change is it to be able to go from “you can’t fire anyone except for cause” to “you can fire anyone whenever you want, period.”
SEAN FLAIM: Yeah. No, it is. And it comes back to, remember, the reason we have a president is because we didn’t want a king. And unfortunately, we’re returning to a situation where the presidency now has so much power through the removal appointment for everybody else, that even though the independent agencies still exist, they no longer really have the power to do anything that’s not the will of the president.
And one of the things I talk about in my article is the theorist Carl Schmitt, who’s best known, unfortunately, for being part of the Nazi Party. But he wrote, before the Nazi Party existed, about what he called the friend-enemy distinction. And really, when it comes to power, the power is being able to declare somebody an enemy, that you are outside the law, you are no longer protected by it. Or you’re a friend, you are going to be protected inside the law, we’re going to do everything else. And that friend-enemy distinction is not law. That’s the problem.
If you can say that somebody is outside the law, we no longer have equal application. We have one class who is protected by the law, but is not constrained by it. And we have another class that’s constrained by the law, but not protected by it. And the most uniquely corrosive thing you can do to the rule of law is to get rid of equal application, because every other part of what the law really means relies on equal application. If it’s not equal application, it’s just power. And people don’t react well to that. It is what causes wars.
TEDDY DOWNEY: And it’s certainly not what you would expect from a democracy. Now, if you look at the institutions that now are left to do the disciplining of power, you’re really seeing it in the U.S., really only at the state level, if it’s not, or I should say, in a way that’s like sort of like rule of law oriented, as opposed to what you’re saying, the sort of friend-enemy or just kind of authoritarian style. That’s part of the design too, of the U.S.
And so, how important is — what I think is kind of funny is you get the sort of status quo Democrat, which is kind of a neoliberal, sort of historically likes the Supreme Court because of some of the progressive things that they’ve done over the years. But now Democrats are, all of a sudden, they’re Jeffersonian, right? They’re like, hey, Jefferson had some flaws, but he’s the one that put all this power to the states. And that’s really what’s keeping us afloat here. I find that pretty funny. But I want to get your take on how important is the distribution of power to the states?
SEAN FLAIM: I’m sorry, I should have actually mentioned that before. Because I think that, from the constitutional structure, is actually probably the most important. Because what I was talking about — now that we have the unitary executive — is that all enforcement power federally is now subject to the President and his desires and everything else. But the Constitution gives us one additional check against that, and that is the states themselves.
The states are able to do enforcement on their own terms. And one of the things we have today, which is encouraging, which we didn’t really have in the 1800s, was the ability of states to communicate with each other and coordinate their activity on the enforcement sphere.
And I went back to this when I talked about the Ohio case breaking up Standard Oil. Back then, they were able to go incorporate in another state. And if they wanted to coordinate, somebody had to jump on a horse. I don’t know exactly when the telegraph was created, but somebody had to communicate between the states. And being able to coordinate these multi-state coalitions to do enforcement was just not something that was possible back in the 1800s.
It is possible today. And you’re seeing states not only do that, but you’re seeing bipartisan coalitions of states. And, in fact, we talk about that. The FTC was a bipartisan coalition. You see states that are considered the deepest red states joining up with the deepest blue states. Because I think everybody, for the most part, understands how important anti-monopoly is, how important it is not to let government itself or the tools that we need for government and the media case, I’m sorry, the Paramount case, that was just filed, like, that is a fundamental democracy case. That is the reason the states are bringing it. He who controls the information that gets to the public, that is a power that is too dangerous to put in any one spot.
And so, it’s not amazing to me. It’s actually exactly what was meant to happen, you know, by creating this system of federalism. The states were supposed to be able to use enforcement power to do things that Congress would not. Obviously, there are certain limitations. To this extent, the states are trying to regulate interstate commerce, the Supreme Court has the dormant commerce clause. So, the Supreme Court has created doctrines where it can even go in and tell the states, well, no, your enforcement’s too good because that’s really Congress’s job. But it does create this different center of power. And I think it all goes back to everything.
Like, competition is most important. When you have ideas — this current president’s idea of competition and its value is different from the state attorneys’ general ideas. And in a democracy, you want the best ideas to come out and you want the best idea to win. It’s almost an evolutionary story with power. Like, you want as many ideas as possible and may the best one win because that’s how we make progress.
TEDDY DOWNEY: The way I think about the Constitution and a lot of the laws that you’re talking about are efforts to sort of do that vision of the founders, which is to distribute power, right? And when you have this accumulation of power — I’d say outside of the norm of what was expected in the Supreme Court and the presidency, and you want to have a democracy, and if the society believes in the original intent of that, which is to distribute power — you would think that the next set of ideas, the next political movement, would be to disaggregate that accumulated power.
What are the ways — what do you think about when you think about Congress, when you think about the states taking on this unitary executive authority, this sort of really incredible power grab from the Supreme Court away from Congress? And, to date, Congress is doing almost nothing to stand up to that aggregation of power in the presidency and the Supreme Court. What do you expect to see going forward?
SEAN FLAIM: So, I expect to see a number of things. And I’m just going to caveat with this. I’m not advocating for one thing or another. I actually try to keep myself closer to nonpartisan than anything else. But, I mentioned this earlier, Congress is the most powerful branch when it chooses to be. The only true check on Congress is the people that vote for them. And that’s why at least one part of Congress gets a vote every two years. The other part of Congress, a third of it turns over every two years. But Congress is the only branch with the power to remove people from the other branches.
Congress has the impeachment power, which applies to Supreme Court justices and the president. If it chose to use those powers, we would have all these rulings reversed instantaneously. We would have the enforcement decisions reversed almost instantaneously. Probably a little less on the executive side, considering removing the President just puts it to the Vice President and whatever else. Although, I will credit J.D. Vance with being one of the more anti-monopoly vice presidents we’ve had in quite a while. But short of that, Congress has an amazing amount of other powers.
For instance, stripping the jurisdiction of the Supreme Court. Congress could create a national constitutional court whose jurisdiction was all constitutional questions that were brought in pending litigations. So, if you’re bringing it in at the district court level and you have an appeal that is with a constitution issue, it goes to the constitutional court and then no further review after that.
The Supreme Court has limited jurisdiction. And at any time, Congress can say there’s a certain class of cases that you can’t hear at all and everything else. Congress could pass a law saying we’re overturning your constitutional decision and you have no authority to review this law. These are drastic steps.
And what I’m trying to say, the check on Congress doing that is the fact that they are up for election every two years. And if they get out over their skis, they’re going to be the first people to hear that they got out over their skis and everything is going to come back the other direction.
And so, there is a number of tools at Congress’s disposal. I mean, gutting the Supreme Court’s budget to zero, no more law clerks, no more clerks whatsoever. Moving them to an office park in Tyson’s Corner, while putting somebody else in the nicer offices in the Supreme Court building. Like there’s a million things that could be done that would get the point across that the people who really have the ultimate say is Congress at that point.
And you’ve not seen the executive branch ever say that the Supreme Court is the final decision maker. And one of the points that I brought up for this, the Supreme Court, being the only determinator of constitutional issues, actually comes from a case called, I think it’s Cooper v. Anderson from the 60s or maybe even the early 70s.
And that’s the case where there was a Brown v. Board of Education breaking up a segregation. The state said no. And the Supreme Court said, no, we told you what the constitution is. We’re the final authority on it. And they based that on Marbury v. Madison, which didn’t actually say that. But they took it since then.
And the reaction to the court doing that from the Nixon administration and the Reagan administration was no. Edwin Meese gave a speech in 1986 where he said, no, the executive has just as much authority to interpret the Constitution as the Supreme Court. And we’re not going to abide by a Supreme Court ruling that we believe really isn’t fundamentally in line with the Constitution.
Now, of course, it was a speech. It never happened. But you’ve seen Congress kind of acquiesce to a lot of this stuff. And you’ve never seen the executive do that. The executive has always been energetic enough to say, like we’re going to — now it’s saying we’re going to ignore Congress and we’re going to ignore the Supreme Court. But they’ve always said that they were going to ignore the Supreme Court if it really came to push versus shove.
And one of the things that people say the Supreme Court has — the only power that it has is persuasion. Like, it’s the persuasive ability of its opinions. It does not control the armies. It does not control the money. So, it is very interesting to me how aggressive this particular conservative Supreme Court has been. Because they’re inviting a backlash on themselves from the other branches once the other branch gets its feet under it.
And I think you were implying or not implying this. But I think a Democratic Congress is going to realize that. You have talk that I’ve seen most recently, including from my Representative Jamie Raskin, they’re talking about solutions that we never would have heard of that would not have been spoken publicly 10 years ago, 20 years ago. This is real.
TEDDY DOWNEY: I think you could even say one year ago, two years ago, I think you would have been laughed at if you said, hey. Congress could really look seriously at regulating the Supreme Court in all these like seemingly petty ways, but also just like signaling ways. We’re going to take away your power. And I think the reason why I’m confident this is going to happen is because of how dramatically the Supreme Court has acted recently — to your point — against the rule of law, just the speed with which they have completely undone the Voting Rights Act. That’s just like such a fundamental and important set of laws and enforcement about like people’s right to vote and how you participate in a democracy, a lot of these enabling.
So, just to me, the aggressiveness of the Supreme Court and speed with which they’re undoing rule of law, threatening rule of law, has is what is actually inviting that backlash, to my mind. That’s why I’m confident it’s going to happen. We actually are going to do an event with Mr. Raskin late September to talk about this exact thing, or one among other things, as well as anti-trust and anti-monopoly policy.
Now, I also want to ask you about one thing. You were an intern at the FTC. I don’t want to spend too much time on the FTC. But one of the problems that happened with the design — I think, flaw, or one of the things that didn’t work right about the, hey, let’s stagger the appointments. Let’s have robust ideas — was ideological capture throughout the government for a 30, 40 year period of time where really the consumer welfare tests or just general laissez-faire attitude toward bigness pervaded both parties.
And so, the FTC was effectively rendered powerless or sort of a shell of what it was imagined to be doing. And you had this huge concentration of power over that time, huge concentration in industry, as a result, both DOJ and FTC. I mean, it didn’t matter the different structures. They weren’t competing over enforcement. They were competing over who can do less, who can performatively do nothing.
And what is your reaction to that? That it wasn’t actually, you know. Now, obviously, Trump has done this sort of authoritarian power grab. The Supreme Court has enabled him to do it. But before that, there was — I don’t want to pretend like things were going well. There was true dysfunction and a breakdown in the philosophy of enforcement. What is the solution to that from a design feature?
SEAN FLAIM: So, this is going to be — I can’t remember. It might have been Brandeis that actually said this. But the best way to compete with an idea is with competing ideas. And I think what happened was when Robert Bork wrote “The Antitrust Paradox,” which just so happened to be a very pro-business point of view, people just stopped putting forward competing ideas. You did not have an anti-monopoly constituency that started putting these things forward.
I’m going to just go back to a personal anecdote, well before I went to law school. I’ve been thinking about the issue of rivalry and competition essentially my entire life. And I actually just finished a book on that very subject. And one of the classes that I remember from college was I took this mass media and pop culture class. And one of the very first things we discussed in this class was the concentration of media.
And so, this was in the 90s. And the professor puts up this huge chart showing there used to be like hundreds of different movie studios, back when movies were created and everything else. And it basically showed everybody merging and merging and merging. And I think, back in the 90s, he was very, very concerned because there were only like 10 or 11 left. That seems quaint now. With Paramount attempting to merge and whatever else, 11 would actually be a decent amount of competition. We’re down to two or three at this point. And so, that actually is what got me interested in this topic altogether. But it really is, as I said, about competing ideas.
And I think when I went to law school — I tell people sometimes that I’m the Forrest Gump of antitrust. And the reason why, when I was in law school, I did an internship at the White House in what’s called the Office of Science and Technology Policy. And one of our lunchtime speakers that came in was Tim Wu. And he came in talking about his book, “The Master Switch,” which is his book about the communications industry. And here I was an eager law student. I bought the book. I knew he was coming in. I bought the book. I read the whole thing. And immediately, I got to the end of the book, and I’m like, I mean, you have such intelligent questions.
And I get in there and my mouth like blah, blah. But basically, I said, like, the one takeaway that I have is how much this industry has concentrated and become. And I was just, that to me is because the speech or the ideas, the power over that is power over everything else. If you have a monopoly over the ideas, you have a monopoly over essentially any other part of our lives, governance, and everything else. And I said that to him during the talk. And he was like, oh, yeah. Go back and read my paper. And so, I read his paper on copyright.
Well, fast forward, exactly a year, I go to do my internship at the Federal Trade Commission for Commissioner Julie Brill. Guess who had the office next door to me? I was on the third floor. Office of Policy Planning was next door to me. And Tim Wu was in the office literally next door to me. And so, I’m not telling everybody that I’m the one that made Tim Wu go do antitrust. But I was there, like at the beginning. Just like Forrest Gump, I was in the background standing there.
You know, I met Zephyr Teachout at a cocktail party around the same time. And we got into this eight hour conversation. I remember at the time, she’s like I think we should just ban companies with a market cap over $10 billion. She’s like, argue me out of it. And me being like, oh, now that I’ve taken my antitrust class, like I’m going to make the economic argument. And she’s like, yeah, that’s all good. But it’s just all corruption at the end. And I tried to argue her out of it.
And if I met her at the same cocktail party today, I would be like, you are so right. Like everything that you said, I should have agreed with you. Maybe $10 billion. Maybe we’ll haggle over the number. Maybe $10 billion is too high or too low. But you can see everywhere in the economy.
I was one of the first people to do a public panel with Lina Khan back — I don’t know if she was still — I think she had left Yale and she had either got to Open Markets. But I did a panel with her back in 2017 or 2018 — that’s on YouTube — talking about a progressive view of antitrust. And it was her, Sally Hubbard, and two other people that I can’t remember off the top of my head. So, these issues have been with me for a long time. And I’ve been thinking about it for a long time. And like I said, it’s all about the ideas.
TEDDY DOWNEY: Yeah, I want to mention, if you have questions, please put them in the chat. We’ll get to them momentarily. So, you mentioned distribution of power. You mentioned control over the media. In many ways, you’re seeing those as the central fights right now, across the world, really. Europe is trying to regulate big tech, which obviously controls communications platforms, among other things, regulating AI, again, which is going to have a huge role in access to information. Those are the big fights in the U.S. as well, Big Tech.
You have, as you mentioned, concentration in movies, concentration in TV, concentration in books. So, do you think that those media markets are special? Like, are they more important than other markets to ensure that you don’t have dominance and you have real competition? Or at least not, the absence of being dominated?
SEAN FLAIM: Yeah, I’ll give kind of a bipolar answer to this. And the reason I say bipolar is it depends on what era that we’re talking about. If we were sitting back in the 60s or 70s, and the dominant form of communication was still television and radio, we put competition rules in for that. We accepted the fact that there were three major broadcasters for years.
And then, of course, Fox was added as the fourth major broadcaster. We even had WGR — I can’t remember what the last one was — for a while. We accepted that and we said, okay. We knew it was important. I mean, the FCC was created because we knew it was important to keep competition going in those sectors.
Today, it is still important. It might be a little less important, provided we still have a free and open internet. Because the ability for people to get their ideas out in the world has honestly never been easier. At least to release the ideas. Getting a platform is a whole different story. And so, to the extent that platforms are regulated, it’s like more ideas. We just want ideas to continue to continue flowing.
So, the internet is good for that. But I do share concerns. I mean, you see in the United States, one news organization, CBS, that used to be one of the leading — I’m not going to say they’re ever fully independent or whatever else, but their voice has been squashed.
And a significant part of the country still gets their information from network news. There’s even people, believe it or not, that don’t have internet, and just get their over the air broadcasts. And they deserve free information as much as everybody else.
So, like I said, I have two different views. It is important. You need to make sure that the marketplace of ideas never gets monopolized. But I think we have a much stronger system now where, even if there ended up being monopoly control over information and ideas for a while, there’s always going to be a method to get your ideas out.
And, like everybody has noticed, everything is a pendulum between liberalism and basically illiberalism. Liberalism is that market of ideas and may the best one win. Illiberalism is what you see with Hungary’s Orban, with the Carl Schmitt concentrated power, whatever you might think is going on in the United States right now. And so, it’s two poles. It’s two ways of thinking about things. And ideas are, I think, the most important battle in between those two forces, in between liberalism and illiberalism.
TEDDY DOWNEY: I love how we’ve gotten brought in a lot of philosophy here today, which is a favorite of mine to do. Again, if you have questions, please put them in the chat or in the questions pane. We’ll get to them momentarily. I want to get back to this idea of just like companies over a certain size are just too big.
A lot of people would say, wow. That’s a really radical thing to say. I’m curious how you’ve come around to thinking that that is a good idea. Because you actually don’t –I can also imagine a conversation with Zephyr Teachout where she makes a case for this. But you actually don’t hear this kind of idea that often. How have you come around to thinking that way?
SEAN FLAIM: So, to me, it goes back to the actual history of the Sherman Antitrust Act. I mean, if you read the Sherman Antitrust Act, it’s a criminal statute. It just says you can’t do this, X, Y, and Z.
It’s one of the few criminal statutes that I’ve ever seen where a court turned around and said, well, no. We’re going to make some of this conduct legal. And that was the Standard Oil decision by the Supreme Court, putting in the rule of reason and everything else. But if you look at the historical debates with Sherman, they were concerned about the political power, the concentrated economic power creating political power and distorting our ability to govern ourselves.
And so, it was really looking at that history and going through it that really made me come around kind of to the idea that if you look at the history of antitrust enforcement, it wasn’t until the 30s or 40s that you even heard economics cited as evidence in an antitrust case. It was just like this company is too big. It’s got these bad contracts, but they didn’t try to quantify it or anything. That was a later development, that sort of thing.
And so, the fact that I think this entire age of attorneys or entire group of attorneys, especially now, senior partners at firms, came of age in a time where we just think of antitrust and economics as being two things together. And that is a capture of what antitrust doctrine is all about.
It was never meant to be a solely economic doctrine. It was only pushed there because concentrated power knew that if we throw economics in there, we can throw our expert witnesses who will say, oh no. This merger is great in there and that sort of thing. It gave the ability to use certain types of evidence against clear congressional constraints, especially in mergers.
I mean, Congress passed a law that basically says you want to stop mergers. You want to stop concentration in its incipiency. That’s not a rule of reason standard. That’s the government that says, no, no, no. You guys are too big. That’s really what that legal standard is. And already, that one has been, over the years, captured by the court saying, oh no. This is still more rule of reason. We’re going to credit this economic testimony that all these benefits are going to accrue and stuff like that. That’s just not that part of it.
And so, it sounds radical, like $10 billion is too big and whatever else. And it is. But it gets to a more fundamental point, that economics is not the only part of antitrust doctrine. It was always meant to protect government from being captured by economic power. And I think it still is. And I think people like Lina Khan understand that. Because they also, like me, study the history.
TEDDY DOWNEY: What do you see as particularly worrisome when you see concentrated economic power and concentrated political power right now?
SEAN FLAIM: I’ll have to go back to this merger, the Paramount merger. I mean, I see the interests of a certain faction in government aligning with the interests of a certain faction of private power in order to capture our ideas machinery. And that is probably one of the more worrying things.
Luckily, as I said, we still have a lot of ability to get our other ideas out there/ There are two other major networks that do not seem like they are bending too far. Although, if you watch the Sunday shows, they’re bending more than they should. That is kind of the biggest concern for me.
But there’s always going to be an interest. I mean, the whole point behind the unitary executive, is it is a lot easier to spend a bunch of money on one campaign than it is trying to spend a bunch of money on 435 campaigns or 535 campaigns and trying to hope we get enough of that number to capture the machinery.
The unitary executive is the plum or the peach, or whatever you want to call it, in terms of the ability of concentrated economic power to capture the wheels of government. And the Supreme Court’s a close second. Which is another reason why we’ve seen so much money, the dark money groups that spend on Supreme Court appointments. You get justices that are appointed for life. They’re going to come up with decisions like this.
And as I said in my article, they’re almost always in favor of economic power. And that goes back to the founding. It doesn’t go back to the Sherman Antitrust Act. It goes all the way back to the founding. The Supreme Court has always bent towards the side of concentrated power. And partially, that’s because concentrated power is the one that most often gets to the Supreme Court in the first place.
TEDDY DOWNEY: Yeah, I want to ask a last question. We haven’t gotten any from the audience. What do you think about the idea that — the Republican Party historically has been the party of big business. They’re not hiding that. Maybe there was a little bit of confusion around that with Trump. But, in the end, successfully implemented a party in favor of helping big business. You may have some quibbles with that. I mean, you say, hey, well, it’s the businesses that they prefer. But, in general, you put money into the ballroom or whatever, you get what you want for the most part. Or if you have enough money, right?
But there’s another party, a competing party, the Democratic Party, which historically has held itself out as the party of the people. How dangerous do you think it is when the Democratic Party is captured by money and interest, which it has been for quite some time now? And there is an intellectual debate now over how to properly implement a party that represents the people, the public, the public interest, more broadly.
The example I have that kind of sticks in my brain is the reporting out of the American Prospect recently around the Abundance Network or the Abundance Institute, or whatever, which is a group of billionaires throwing hundreds of millions of dollars annually around to influence the Democratic Party. And in the documents, it really showed a real disdain for democracy to me.
But it’s a very influence — I mean, that’s like closer to the status quo norm of the Democratic Party is like this sort of abundance network. They brag about how successful they’ve been in capturing the Democratic Party. In fact, I’m curious if you, I mean, because that’s really where I look at it. It’s like if you don’t have a real rivalry, you don’t have a real competition, you don’t have a real party that actually represents the people, this whole system really doesn’t work. It was really not going to work. What’s your response to that kind of worldview?
SEAN FLAIM: Yeah. So, I will say that — this is actually something I talk about in my book a little bit — it’s like you’d like to think that this was all planned. Like, there’s some cabal of like really rich people somewhere who was like we’re just going to fund the abundance movement. That’s the way we’re going to get our way and whatever else.
And my book makes the point that it’s not so much a cabal. It’s capture. It is people who have their ears open and they hear an idea and they’re like, oh, well. This is an idea I’m going to support. It’s useful to me.
And so, the abundance agenda itself came out of people who are nominally liberal, the people who were sponsoring it at the beginning, Matthew Yglesias, Ezra Klein. And these are people who are nominally on the liberal side, more moderate, liberal, whatever else.
But you have seen it kind of run away in terms of, well, this is very useful because it’s an anti-regulatory viewpoint. And who are the regulations really restricting? It is restricting businesses and whatever else. And I think there’s a debate over whether the regulations that they want to cut are good or not. I agree with Matthew Yglesias’ book about housing regulations and how that is actually hampering the housing market and stuff like that. There is a lot of red tape to cut. But in the end, the people who put that tape in it in the first place were the democratically elected officials. And so, competing with the ideas, I think, is what the abundance movement is all about.
But if we step back maybe, a larger frame and like the more institutional history, you’re right. The Republican Party is always — and this is going back to Lincoln — was always kind of supported by big business and prowhatever else. It wasn’t until the civil rights movement in the 1960s that the more the base of the party flipped from one side to the other. Republicans, before 1960, were generally less focused on racial or immigration issues than Democrats. And that flip happened. That’s all kind of part of the pattern.
I mean, we’ve seen over time, for the Republicans, that flip allowed them to gain electoral advantage because it brought them a lot closer. For decades, the Democrats dominated Congress after FDR, who was the last, maybe even the first, most populist president that we ever had. And Democrats dominated stuff for a long period of time. Because people were really tuned into the anti-monopoly idea and the anti-big banks controlling what we do, wanting small distributors, small companies, to survive. We didn’t want all the chain stores and that sort of stuff.
And the switch allowed the political influence that allowed the Republicans to start winning elections that allowed them to put forth more ideas. And, of course, you had Bork in the 1970s who essentially seeded an idea that both parties thought, well, this seems right. Like, we should let things economically go forward. We should concentrate on economics to the exclusion of everything else.
And I think today we see that debate inside the Democratic Party between, I guess, the abundance wing and the populist wing. I sometimes think about it as the Lina Khan wing. And she’s not the only one. And I think that that’s a real debate. And at the end of the day, what really needs to happen, out of whatever debate, is one party or the other needs to put together a coalition large enough to do something. Because if you look at American history, the past 20 years have been this zigzag pattern back and forth between competing power centers. And it’s because one power center wants to get rid of government all together. And then that starts happening and people are like, no, we want government. And they vote the other side back in.
So, it’s a tension that’s always existed in this country. It’s always going to exist in this country. And it goes back to it’s the ideas that matter. It’s the people that come up with the best ideas. And I’m hoping one day we have a Republican Party that goes back to being more of an ideas party. Because I haven’t felt recently — I mean, if you look at the legislative track record of this Congress, we haven’t seen a lot of ideas. We’ve seen a lot of deference to the President to just implement stuff. But without Congress, that could all be washed away in an election.
TEDDY DOWNEY: Yeah. Well, we’ll have to see how this all plays out. It is a very interesting time, a lot of back and forth, when it comes to politics, when it comes to law. Sean, thank you so much for doing this today.
SEAN FLAIM: Absolutely. Thank you so much. It was great being here.
TEDDY DOWNEY: And thanks to everyone for joining us. This concludes the call. Bye-bye.
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