How To Save A Republic

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Posted: Jan 19, 2021 9:45 AM
How To Save A Republic

Source: AP Photo/David Goldman

Suppose that you’d been a sentient adult on December 7, 1941, when Pearl Harbor was bombed. Now posit a friend, a self-proclaimed advocate for freedom – which, in the United States, means a conservative or libertarian, a person of the right. Finally, imagine that on the morning of the 8th, your friend insisted that as a man of liberty he sought to instigate a nationwide campaign against motorcycle helmet laws.

It’s my guess that you’d scratch your head at that, and rapidly conclude that your friend was either not very serious about preserving liberty or just not very serious. After all, a far, far greater threat to liberty than helmet laws had appeared over the horizon just the day before, and protection of liberty required fighting that threat, the existential one.

We could pile up other examples (a pacifist neighbor who refuses to arm up to defend your neighborhood against a feral torch-bearing mob ready to burn it down, for instance), but I suspect the point is clear. Our political opponents have not begun (and nor do I think they will begin) aerial sneak attacks on our homes, but they have started burning the property of their perceived opponents and destroying cityscapes. Yet their actions are dismissed as trivial or lauded as righteous defiance by collusive “news” sources, who also insist that the explicitly Marxist and self-declared revolutionary bases and purposes of their organizations and their efforts do not reflect either on the broader movement or even on the organizations themselves or their violent behavior. Meanwhile, the intensely stupid but not broadly threatening actions of a cadre of ostensible right-wingers in the Capitol have been hung around the necks of the whole right as a condemnation of our entire value system, and our fight for a free and nondiscriminatory society and for equality of treatment and of law.

At the same time, a massive combination in restraint of trade has tried to destroy Parler, a competitor of some of those actors, a competitor unique only because it permitted us on the right to communicate like the left can everywhere – without constant censorship to drive our ideas and concerns from the public stage. And a similar combination is trying to drive all of us out of economic and social life entirely – literally ruining our lives.

Don’t be fooled. While the focus of the witch hunt is on Trump Administration figures for now, that’s just the entering wedge. If the left gets away with this, the focus will expand to include everyone on the right. And then American liberty – which at its most fundamental level depends completely on the ability of all Americans to speak up and to participate in politics without fear for their lives, property or livelihoods – will have been destroyed forever.

It’s that important. It’s an existential threat.

Our response must be equal to defeating this threat, while time remains. To return to the Pearl Harbor analogy, people ostensibly of the right who still wring their hands about applying antitrust and other existing laws to thwart this trend are as lost, or as unserious about preserving American liberty, or as unserious generally, as the motorcycle-helmet moron of the comparison. There is a hierarchy of rights and freedoms. We free-marketeers must still work to minimize regulation, but almost no one on the right (except admirable hard-core libertarians, who slot nicely into the position of the pacifist facing the slavering mob) argues against all regulation or business legislation, and so should not be taken seriously should they argue that narrow, carefully targeted regulation, or legislation, or enforcement of existing law, is somehow inappropriate now.

So where should we stand?  

First, we must deploy existing antitrust law in this emergency to its fullest extent (or maybe to its fullest civil extent; I wonder if the colluding CEOs are aware that the violation of some of these statutes carries potential prison sentences?) to end collusive big-business/big-government efforts to drive us out of public and economic communication and life. The very fact that these companies are succeeding is illustration of their monopoly power and of the restraining effect of their illegal combinations. We must use these laws to their greatest extent.

We must also craft and push amendments to the anti-trust laws and to the 1996 telecommunications act that will ensure that this can never happen again. Forget about merely repealing section 230. We must add provisions establishing that communications platforms may only discriminate amongst content if their discrimination will not materially interrupt the competitive market for open, non-discriminatory communications. In other words, these companies can be big and open, or niche and discriminatory, but not market-settingly big and discriminatory. This is hardly radical; it lies at the heart of anti-trust theory, common-carrier theory, and a wide range of other standard business law. We on the right would prefer, when companies are acting like business organizations rather than petty tyrants, to minimize regulation – but these are not such times.

At the state level, we must seek adoption of viewpoint-nondiscrimination laws: laws making it illegal for businesses to discriminate on the basis of disfavored political or policy participation, in the same way that it’s illegal to discriminate against disfavored groups, for the same reasons and with the same penalties for violations. And when we return to power nationally, we must add that protection to other federal non-discrimination laws.

We must also work not only to support shareholder primacy for corporations, but to strengthen it. It is not enough to defeat the “stakeholder” model that would free CEOs to interfere in politics in ways that have nothing to do with their businesses. State corporate laws must be amended to limit the power of corporations to do only those things which are demonstrably likely to advance the specific interests of the corporation as reflected in its aggregate (not just short-term) value, rather than things the purported benefits of which would redound primarily to the general public or to future generations. Business corporations are not designed to be private policy shops for their CEOs, who at all events aren’t policy experts. We should foreclose that option completely.

I’m sure that some on the right, perhaps even some writers on these pages, will disagree with this analysis. And I certainly will not on that ground question anyone’s motives. But I hope that when those objections arise, you’ll analyze them with this question in mind: is this commentator, in effect, whistling while the Republic burns?

Scott Shepard is a fellow at the National Center for Public Policy Research and Deputy Director of its Free Enterprise Project.