When a handful of obdurate conservatives vowed to oppose Donald Trump even if he were to win the Republican Party’s presidential nomination, they did so for two reasons. First, he seemed destined to lose. Second, they feared that Trump, by virtue of his malleable boosters in conservative media, was uniquely able to redefine conservatism. This concern has proven prescient. Trump is leading conservatives to embrace liberal political objectives purely out of spite. His Justice Department’s effort to block a merger between AT&T and CNN’s parent company appears to be an example of this corruption.
On Monday, Trump’s DOJ announced that it would sue to prevent the “vertical merger” between AT&T, a content distributor, and Time Warner, a content provider and the company that owns CNN. It was a strange decision by an administration that has so far been unflappably friendly toward big business. It contradicts a move by the FCC last week, which made it easier for local-market media companies to consolidate by doing away with dated ownership restrictions. What’s more, as the Wall Street Journal editorial board noted, this is the first effort by the Justice Department to sue to block a vertical merger since 1977’s United States v. Hammermill Paper Co., which the government lost.
In a recent interview predating the DOJ’s announcement, the Trump administration’s top antitrust regulator, Makan Delrahim, insisted that politics must not interfere with enforcement matters. “That would be antithetical to everything I’ve stood for,” he said, adding that the government could risk upsetting the marketplace by issuing abrupt changes to standing U.S. antitrust legal theory. Usually, the government seeks an out-of-court settlement that would mitigate a vertical deal’s potentially negative consequences for consumers and competitors. Not in this case. For Trump, this deal must not go through.
He said as much himself. “I’m not going to get involved in litigation,” Trump declared before promptly involving himself in litigation. “Personally,” he added in the same breath, “I’ve always felt that was a deal that’s not good for the country.” Delrahim has since changed his tune on the potential threat to the marketplace posed by abrupt and seemingly arbitrary shifts in its antitrust theory. “[T]here is an instinctive reaction to big business these days,” Delrahim said in the interview he now insists was taken out of context. “There are people who think big is just bad.” Yes, those people are called liberals.
In January, a group of 13 Democratic senators signed a letter indicating that they were skeptical of how an AT&T/Time Warner merger would “serve the public interest.” Sens. Elizabeth Warren, Bernie Sanders, Al Franken, Cory Booker, and others demanded that these two companies demonstrate how their joining would benefit consumers and serve the “broader policy goals of the Communications Act.” That’s not how this works; the burden is on the government to demonstrate why this commercial transaction is not in the public interest. These Democrats’ letter concluded with an admission that their opposition to a potential vertical merger between AT&T and Time Warner was entirely political: “We maintain that further consolidation in the telecommunications and media industries should only be permitted if it results in better and more affordable services for consumers across the nation.”
That was, in essence, the Obama administration’s stance on this issue. Gene Kimmelman, an Obama-era antitrust official, told the New York Times that this merger could be a “disaster for consumers” if it prevented the ongoing disruption of the cable marketplace by online video providers. But even the Obama administration allowed vertical mergers between companies that were not direct competitors. The 2011 deal that combined Comcast and NBC involved bigger risks to the marketplace than those posed by the merger between Time Warner and AT&T. Despite Obama’s acquiescence, liberals opposed that deal, and they oppose this one.
In a rare display of affection for Donald Trump, Matt Stoller—a fellow at the liberal Open Markets Institute—heaped praise on the administration’s new antitrust policy. He noted, though, that it is at least conceivable that Trump could be leaning on his DOJ to punish CNN. “If true, Trump would not be not the first president to consider using antitrust to achieve political ends,” Stoller observed. “President Richard Nixon once demanded the Justice Department hold off on an antitrust suit against ITT for partisan reasons.” That’s not a defense. It’s an indictment.
The fact is that the government’s case seems a weak one. It must now demonstrate why a company that accounts for 10 percent of cable and broadcast viewership should not merge with a firm that has just 25 million video subscribers, down a half million this year alone. Those disruptive online video providers (Netflix, Amazon, Google, and so on) boast tens of millions more subscribers and are partnering with AT&T’s competitors to provide subscription incentives and alternative distribution methods. Delrahim himself once said that he did not view this prospective merger as “a major antitrust problem.” The government has major hurdles to overcome in court, which is why it will need all the political cover it can get.
It seems likely that Trump is looking for that very political cover from his erstwhile free-market allies in the GOP by aggravating their persecution complex. Conservatives don’t like how CNN treats them, their views, their causes, and their president. Therefore, maybe they will look the other way while the government uses the levers of the state to punish the network’s owners, distorting the marketplace and freezing capital in the process. They might, but they shouldn’t.
There is nothing conservative in this decision. The economic or legal theories that justify this move are dubious. On its face, the DOJ’s decision is arbitrary and vindictive. Conservatives who endorse it because of its effects on a suspect media outlet are sacrificing character and conscience. This decision compels conservatives to abandon principle and endorse liberal economic objectives only to satisfy a desire to see their perceived adversaries suffer.
Trump is establishing a precedent that will be used against conservatives and their interests in the near future. The president’s prosecution of the culture wars on Twitter has enlivened his base, but this represents a shift from the venal to the vindictive. It has the appearance of an abuse of power, and conservatives are right to look upon it with skepticism. If they shrug this off, it will demonstrate that anti-Trump conservatives were right all along.
