If you know the name Robert Bork, it’s probably in the context of his failure to secure Senate confirmation when Ronald Regan put him up for the Supreme Court (his sins from his days in the Nixon administration caught up to him).
But Robert Bork’s failure to attain a Supreme Court seat did nothing to erode his influence: indeed, Bork’s work, more than anyone else’s, is responsible for the new Gilded Age, with its inequality crisis, political instability, and looming environmental disaster. If the human race ends up extinct in a generation or two, Robert Bork will be high up in the list of people to blame for it.
Bork was a liar, who invented a fictional history of US anti-monopoly law in which the lawmakers who authored, debated and passed those laws didn’t actually mind monopolies at all — all they cared about was “consumer harm” (that is, the prices paid by the public rising in the short term after a company or handful of companies cornered their markets); and “collusion” (especially trade unions, consumer groups, and other checks on corporate power).
Bork’s ideas were radioactively implausible, but they did have an important advantage in the “marketplace of ideas”: they stood to make the richest people in America much, much richer, and so Bork found no shortage of corporate backers who helped him create a network of judicial “education” programs, political campaigns, think tankies, and intellectually dishonest academics who would line up behind his idea. Every president since Reagan has expanded Bork’s doctrine, allowing for even more aggressive market concentration, producing a country (and a world) where a handful of firms dominate virtually every industry, from telcoms to talent agencies, wrestling to eyewear, to Big Tech.
And while all this has made the 0.1% a lot richer, the major impact has been to increase the power of corporations over governments, at the expense of democratic control and transparency. Once firms are concentrated, they find it easier to agree on a common set of lobbying goals, and they have the excess capital (“monopoly rents”) to spend on achieving those goals.
This corporate power was what animated the lawmakers who crafted US anti-monopoly laws: the corrupting influence of trusts and the robber-barons who ran them were seen as antithetical to good governance, national welfare, and widespread prosperity. Corporate concentration was a force for political destabilization and corruption, and the fact that this also meant higher prices was important, but not central, to US anti-monopoly policy.
Bork offered a radical reinterpretation of antitrust law. Inventing a legislative history out of whole cloth, he argued that Congress enacted the Sherman Act only to protect “consumer welfare” and not to control the broader economic and political power of corporations. Further, based on hypotheses with little or no empirical support, he asserted that mergers and trade restraints allowed businesses to lower costs and improve services and thereby benefit consumers.
Bork did believe in one antitrust prohibition. He argued that collusion among rivals should be aggressively prosecuted. His conception of collusion swept broadly and did not differentiate, for example, between pharmaceutical companies conspiring to raise prices on prescription drugs and public defenders banding together to obtain a living wage.
In the 1970s and 1980s, corporate attorneys, citing and quoting Bork on behalf of their clients, found increasingly receptive audiences in the federal courts and agencies. The Supreme Court, starting in the Nixon years, and the Department of Justice and Federal Trade Commission, beginning with Reagan, were eager to read the theories of Bork into case law and policy. (In 1982, Reagan appointed Bork as a court of appeals judge and gave him the opportunity to directly rewrite antitrust doctrine.) For instance, in a 1979 decision, the Supreme Court, quoting Bork’s Antitrust Paradox and relying on his fabricated account of congressional intent, stated “Congress designed the Sherman Act as a ‘consumer welfare prescription.’”
Bork’s intellectual clout reflected a larger shift in judicial philosophy during the period. The big business-funded law and economics movement preached a particular brand of economic theory (aligned with Bork’s) through judicial training programs. They persuaded federal judges to protect the privileges of the wealthy and large corporations.
How Robert Bork Fathered the New Gilded Age [Sandeep Vaheesan/Promarket]
(via Naked Capitalism)