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Hack WatchNewsletter | April 28, 2023

New York Times Lets Trump Alumni Test-Drive Antitrust Arguments

Media Accountability

This article first appeared in our weekly Hack Watch newsletter on media accountability. Subscribe here to get it delivered straight to your inbox every week, and check out our Hack Watch website.

On Wednesday, the United Kingdom blocked Microsoft’s $69 billion acquisition of video game giant Activision. The move sent markets reeling and corporate mouthpieces foaming. Two such mouthpieces, Jay Clayton and Gary Cohn, got a slot to talk about it on The New York Times Opinion page the next day. As the Times writes in their author bios, “Mr. Clayton was a chairman of the Securities and Exchange Commission and Mr. Cohn was a director of the National Economic Council in the Trump administration.”

Before we even address their argument, consider what it says about the Times that they published these two men in particular. As Wesley Lowery pointed out in a must-read Columbia Journalism Review piece on Tuesday, as much as papers like the Times claim they courageously held Trump to account during his presidency, mainstream media editors used every possible euphemism to describe Trump and his policies — “racially charged,” “norm-breaking”, and so on — to avoid directly addressing what a hateful, corrupt project it truly was. Printing a piece by two Trump-era policymakers is the flip side of that coin. The New York Times, of all outlets, insists that these men be treated as thoughtful, sober-minded analysts, instead of the right-hand men for a corrupt, hateful regime they are.

Nor, indeed, are Clayton and Cohn remotely independent observers of the Microsoft-Activision merger issue today. Clayton is now a Senior Policy Advisor and Of Counsel (read: lobbyist) at BigLaw firm Sullivan and Cromwell, which has plenty of tech clients, including Microsoft in the past. Cohn is the vice chairman of IBM, which has an obvious interest in retaliating against antitrust enforcement in the tech industry. The Times discloses none of this. 

If the Times Opinion editors do not think Clayton and Cohn are as crazy as the man for whom they worked, they ought to read the piece they published. The article is an absolute mess, in ways indicative of the fundamental duplicity in all Trump-style faux economic populism.

Clayton and Cohn claim that the UK’s decision to block the Microsoft-Activision merger “is a blow to American sovereignty” and that regulators are “outsourcing U.S. regulatory policy to Europe.” They grumble that “now there is no doubt that a transaction involving two major U.S. companies will have its timing and material terms dictated by Europeans,” and warn “Shouldn’t we expect European regulation of U.S. matters to favor European interests over the interests of U.S. citizens? […] What if Chinese regulators make similar assertions?” 

Rhetorically, this is as Trump-populist as a regulatory law argument can get: valorization of American authority, distrust of other nations and globalization, specific disdain for “outsourcing” (though outsourcing jobs is nothing like what they’re talking about), and so on. 

But if one resists the patriotic fervor, and bothers to actually parse their argument, one can see that there’s no actual pushback to globalization or corporate capitalism in here at all. No, what Clayton and Cohn want is more unfettered, untrammeled corporate power for firms across the globe, just as long as they’re American firms.

They claim that American regulators, like Lina Khan at the Federal Trade Commission, are “deferring to foreign counterparts, citing euphemisms like ‘international cooperation’ and ‘global regulatory harmonization’ while paying short shift to their obligation to consider domestic consequences in accordance with our laws.” In other words, they’re mad that American companies which operate worldwide are subject to regulation worldwide, and American regulators haven’t bullied their foreign counterparts into deference. 

This is an absurd claim. Microsoft and Activision both sell products in the UK. That means they are subject to UK regulation and law enforcement, like it or not. The only way for a foreign company to not have to submit to the laws of a nation in which it operates is if nations write protections into the trade deals which Trump-style anti-globalists claim to hate.

If, as Clayton and Cohn argue, the US should exert more economic sovereignty, that necessarily implies that the UK and other foreign governments can exert more economic sovereignty within their own borders too. This includes the sovereign right to block mergers deemed anti-competitive under UK law. If Microsoft and Activision don’t like that, then they can pull out of foreign markets — an option which is glaring in its absence from Clayton and Cohn’s article.

The only way this would not naturally follow is if Clayton and Cohn believed the US deserves special economic powers — the power to shape all antitrust enforcement, in this case — which no other country is entitled to. But surely “sensible Republicans” like them wouldn’t argue for something like that, right?

Still, Clayton and Cohn continue to argue that the US has become weak and feeble, because regulators, “in their zeal to achieve a social policy agenda set by a few extreme progressives in the Democratic Party,” have developed a new modus operandi: “when our laws do not provide their desired outcome, the law should be bent.” Except, again, the Microsoft-Activision case they’re discussing is not about “our laws.” It’s about the UK’s laws. Clayton and Cohn are just pointing out that other countries enforce their own laws when American firms break them within their borders. How is that an outrage?

Clayton and Cohn are determined to prove that the FTC is up to something shady with the Europeans (a term they apply to UK citizens throughout an article on global economic policy, despite a certain famous trade incident — for their purposes, it seems foreigners are interchangeable.) They cite emails obtained by the Chamber of Commerce, which show that FTC officials…emailed with their foreign counterparts ahead of a European decision to block a healthcare merger. The Chamber’s smoking gun is that the tiny startup being acquired, Grail, didn’t even operate in Europe…except Illumina, the conglomerate firm doing the acquiring, does. If this was a somewhat novel antitrust theory, it’s certainly not an outlandish one. 

Moreover, it’s not illegal or unethical for the FTC to coordinate with its European peers. Quite the contrary: international communication is the only way to make sure that the FTC and its peer regulators understand what is being asked of companies operating abroad. All of these agencies are stretched thin and dealing with corporations that affect markets worldwide. It makes sense for regulators to coordinate worldwide as well — indeed, even greater global cooperation on things like tax evasion is needed to tame the harms of global capitalism. 

So Clayton and Cohn’s argument is that Microsoft and Activision should be able to do business in any country they want — but should not have to follow any local rules of the road. They think the American government should flex its muscles to structure global markets however it wants — but that foreign governments don’t deserve the same authority. And their main piece of evidence that something shady is going on is a few emails and some wild inferences, like any half-baked conspiracy theorist.

All of this adds up to an attitude that anything American is inherently superior, and deserves to dominate a world of its inferiors. But again, surely the “reasonable Republicans” like Clayton and Cohn wouldn’t believe something that authoritarian, right?

Clayton and Cohn’s article marks a new tactic for the right-wing pushback to anti-monopoly reform. Perhaps recognizing that “hipster antitrust” isn’t the insult that a bunch of preppy lawyers thought it was, big business appears to be testing out using Trump’s rhetoric to serve its own ends: rile the people up with nationalist appeals that sort of sound like an agenda in their interest, but which actually continue the same-old business of consolidating wealth and power. 

Indeed, this is what Trump used his own rhetoric for: his primary goal with the Presidency was to profiteer off and defraud the American government on an unprecedented scale. The fact that he unleashed open hatred toward every marginalized group in America was, to him, ultimately a means to an end.

Big business using populism to fight checks on its power might sound like a contradiction in terms. It’s not. Populism is a style of rhetoric, not a coherent ideology in itself — libertarianism is populism for wealthy capitalists, for example, in which successful entrepreneurs are “the people” and beneficiaries of redistributive programs are “the elites.” Even neoliberals from Bill Clinton to Ronald Reagan assumed populist personas: “the people” in their world were middle-class suburbanites tired of “the elites” in “special interest groups” and Big Government (whatever that is) constraining markets which yearned to be free.

The Times, like many major center-left news media, often clutches its pearls at the thought that we’re living through a populist moment. Likewise, putting down “the populists” on both the left and the right is one of Larry Summers’ favorite rhetorical moves. But the fact that we’re living through a populist moment simply means that people feel more than ever that they’ve gotten a raw deal, and that someone in power has lied to them. This doesn’t mean they can necessarily describe why the systems are failing, or who lied, or about what.

Anyone who can articulate their beliefs as a theory which answers those questions can seize that populist spirit — even big business. In this case, Clayton and Cohn want you to believe the systems are failing because anyone, anywhere in the world is checking the power of big business, and that regulators lied about serving the public’s interests. Since that’s obviously ridiculous, their argument has to be dressed up in a veil of patriotism to disguise the con: you don’t want Europeans regulating our multinational conglomerates, do you?

Just because someone sounds angry at someone with power doesn’t mean they’re mad at the right person for the right reasons — nor does it mean they aren’t activating populist passions as a cynical move to consolidate power. Anyone can tell you they’re an ally of the common person. The question is who does, and doesn’t, fall under that label.

Media Accountability

More articles by Max Moran

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