The Fed Soc Debate Turns Inward
Is concentrated corporate power a greater threat to individual freedom than government power?
The Federalist Society’s National Lawyers Convention is an annual homecoming that matches the most loyal university’s affair in zeal and affection. The Mayflower Hotel in Washington fills with tenured law professors fleeing starstruck 1Ls, federal judges holding court about baseball around coffee stations, and warm reunions for friendships begun in student and lawyer chapters around the country.
Fed Soc’s founding by conservatives who felt isolated, adrift, and unwelcome in elite law schools has instilled the organization with a spirit of camaraderie and mutual support, and the national convention is a testament to the home the conservative legal movement has built for itself. A quick glance through the themes that have keyed the convention in recent years yields a greatest-hits list of the issues that have united and spurred the movement’s efforts: the rule of law, agency accountability, the role of judges, and the structural limits of our constitutional government.
This year’s convention was different. The theme, “Public and Private Power: Preserving Freedom or Preventing Harm?,” raises a question that conservatives are debating vigorously amongst themselves. Fed Soc deserves high praise for leaning into it, acknowledging the degree to which some of the settled orthodoxies on which it built its coalition in the 1980s may require rethinking.
Any Fed Soc member can recite by heart the principles declared at the start of each event, that the society “is founded on the principles that the state exists to preserve freedom…” But to what extent does the state’s fulfillment of this obligation require it to act, rather than simply refrain from acting? Friends accustomed to agreeing on questions of judicial interpretation are finding that their answers are quite different, depending on whether they are reading Friedrich Hayek or Abraham Lincoln.
For an organization militantly committed to fostering a contest of ideas and subjecting its own principles and speakers to counterpoint and interrogation from opponents, applying its ethos to debates within the movement clearly poses new challenges. As someone who once assembled National Lawyers Convention panels, I know firsthand the difficulty of gathering dozens of the nation’s greatest legal minds in ways that ensure viewpoint diversity across panels and keynotes. Perhaps as a result, though, the places where this year’s convention fell short seemed obvious.
For instance, panels on social activism and corporate governance featured the standard debate about responses to harmful corporate behavior, with progressives advocating “Environmental, Social, and Governance” initiatives and libertarians countering with the traditional defense of shareholder primacy. Absent, and remarked upon in the hallways, was a genuinely conservative argument for a state role in constructing market guardrails and channeling competitive forces.
Thankfully, conservatives weren’t relegated solely to religious liberty panels. The exception that proved the rule was the conference’s premier Rosenkranz Debate, which this year addressed the resolution: Concentrated corporate power is a greater threat to individual freedom than government power. The 75-minute program, in both its strengths and shortcomings, was the most valuable exchange I have witnessed in four years of Fed Soc national conventions. Watch the whole thing.
For the affirmative, attorney Ashley Keller acknowledged that Ronald Reagan was right in 1986 to suggest that the nine most terrifying words in the English language were “I’m from the government and I’m here to help,” but he argued that nine new words pose the greater threat today: “I’m Facebook and I know what’s best for you.” While the concentration of public power will forever threaten republican government, novel concentrations of private power are now pursuing a common agenda that is destructive to freedom.
Keller observed that the converging trends of a “woke” ideology opposed to individual rights, abandonment of accountability to shareholders, and the emergence of unusual natural monopolies with durable concentrations of market power have produced terrifying results that implicate the same concerns as unconstrained government power and necessitate a robust response. A starting point might be vigorous application of existing antitrust laws and a doctrinal shift that looks beyond consumer welfare when identifying harms.
Former CATO president John Allison argued in the negative, alleging that each of Keller’s issues had in fact been forced on businesses by government. If government holds a monopoly on force, and corporations always attempt to maximize profit, then government must be creating any “woke” distortions.
Keller tested this conjuring of government’s invisible hand by asking a simple question: Could Allison name a single government regulation causing the corporate malfeasance that he, Keller, was warning about? Allison could not, instead leveling an ad hominem attack that Keller, lacking business experience, was naive, and then suggesting the real problem was not de jure regulation but rather “raised-eyebrow regulation” whereby government uses indirect pressure to force an agenda. Keller questioned the existence of this novel regulatory mechanism, and suggested that perhaps CEOs need to grow a spine.
A comment from Professor Joshua Kleinfeld, concluding the Q&A, captured well the dynamics of the debate as a microcosm of the much broader debate that Fed Soc must now navigate:
I just want to observe and think about the generational divide in the conservative movement that we’re seeing almost symbolized on stage as I watch the two of you. I’m of the same generation as Ashley [Keller]. It’s interesting, watching the two of you talk is like me and my dad having a conversation over the dinner table. My dad is a Reagan appointee to the district court and a George H.W. Bush appointee to the circuit court and he came up in the Reagan version of their conservative movement where the problem was inefficient and hapless government. It was the source of oppression and inefficiency, and the free market was the solution.
And then there’s this younger generation who have the same goals as you, which is a liberty-loving America, but we’re observing that there’s some new kind of market failure that makes that old Reaganite conception of how oppression works mistaken. I’m not just an observer of this generational divide; I am on one side of it decisively. Ashley is right in his contentions here and the reason why we are seeing what some of the older generation has not seen is that there has been a shift from oppression through governmental power to oppression through ideological power. The shift is coming from an ideologically unified ruling class coming through elite schools and then populating our elite institutions. It could be Goldman Sachs it, it could be your local school board, but there is a unified ideology that is the real issue of the fight here.
As its name implies, the Federalist Society concerns itself with ideas that go far beyond legal doctrine to the proper role of government and the design of wise public policy. Indeed, its flagship publication, edited by students at Harvard Law School, is called the Journal of Law & Public Policy. In its early decades, it seems to have inherited by default the libertarian economics of the Republican Party coalition.
Libertarians play an important role in conservative coalitions, but libertarianism is not inherent to the American political tradition broadly, the structures of the U.S. Constitution, or the jurisprudential commitments of originalism. Fed Soc’s next generation may bring the conservative legal movement’s thinking on public policy in very different directions. And no organization is better equipped to host, and flourish through, that debate.
Wesley Hodges is the coalition director for American Compass and former associate director of the Federalist Society’s Practice Groups. Twitter: @wesghodges