What Would William Howard Taft Do About Facebook?


Happy Facebook testimony day! As Mark Zuckerberg faces two marathon days of testimony on Capitol Hill, his Senate questioners can do no better than to rediscover the forgotten wisdom of William Howard Taft. For the question of how to curb monopoly power was the central question in the 1912 presidential campaign.

All three candidates wanted to curb the trusts, but they disagreed about the best regulatory response. Taft, the Republican incumbent, was a judicial president who wanted to use antitrust law to curb the political and economic power of monopolists like J.P. Morgan, the Zuckerberg of his day. (Taft brought more antitrust suits in a single term than his predecessor, Theodore Roosevelt, had brought in nearly two.) The Hamiltonian Roosevelt, championing "the New Nationalism" called for the creation of a federal bureau of corporations to regulate the giant trusts. And the Jeffersonian Woodrow Wilson, championing the "New Freedom," relied on his economic advisor Louis Brandeis's libertarian critique of "the curse of bigness" to argue for breaking up the trusts, or preventing them from forming in the first place.

On Capitol Hill today, the neo-Wilsonians are led by Elizabeth Warren, who gave an speech in 2016 quoting Brandeis's warning that the "concentration of economic power" meant that "private corporations are sometimes able to dominate the state." Neo-Wilsonians support breaking up Facebook on the grounds that, as Warren put it, "Left unchecked, concentration will destroy more small companies and start-ups. Left unchecked, concentration will suck the last vestiges of economic security out of the middle class. Left unchecked, concentration will pervert our democracy into one more rigged game."

The leading Brandeisian think tank, Barry Lynn and Matt Stoller's Open Markets Institute, propose a range of remedies the Federal Trade Commission could impose to reign in Facebook's monopoly power, from spinning off Facebook's ad network to requiring transparency of all political communications on Facebook ("Sunlight is the best disinfectant") to passing European style data protection regulations requiring user consent before data can be shared. But although some of these remedies have some traction among libertarians as well as civil libertarians, there is little appetite in Congress for breaking up the platforms.

The vision of a European-style federal privacy law would be the culmination of Theodore Roosevelt's vision of big government regulatory bodies empowered to oversee big corporations. But although Mark Zuckerberg has more or less asked Congress to regulate Facebook ("The question isn't, 'Should there be regulation or shouldn't there be,'" he told Wired. "It's 'How do you do it?'"), there has historically in Congress been no majority support for federal privacy regulation along the European scale: conservatives and libertarians who fear big government surveillance are eager to roll back rather than to expand government regulations of the private sector.

In practice, therefore, the remedy with the greatest political support in Congress may be the Taftian approach: more vigorous antitrust regulation. That would mean, to start, establishing whether Facebook violated its 2011 consent decree with the Federal Trade Commission and pursing fines against individuals who encouraged the violations.

During the 2016 campaign, both Donald Trump and Hillary Clinton gave speeches talking about the need for vigorous antitrust enforcement. In that sense, both candidates were wisely channeling the wisdom of our most judicial president, William Howard Taft.

NEXT: The Fruit of the Poisonous Tree and the Mueller Investigation, cont'd

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  1. He would post pictures of his dinner, duh. Also, possibly, pictures of his enormous bathtub being installed in the White House.

  2. Just a reminder. Whenever you find yourself asking what a historical figure would have done in later circumstances, you encounter a paradox. It’s time travel, there’s always a paradox.

    “Present circumstances” include unknowable?but enormous?character-shaping inputs from social trends, economic changes, scientific discoveries, historical happenstance, etc., which all occurred after the life of your historical figure?and thus were no part of his character. According to taste, you can make your historical figure cease to be who he actually was, by hypothetically supplying his character with present context. Or, if you prefer, you can deprive him of any even-approximate encounter with present circumstance by demanding he confront the present as he was in the past. Either way, the “What would historical so-and-so do?” question becomes pointless.

    1. Well that was vapid as hell

  3. I’m curious as to how Judge Louis Brandeis, as stated in this article, could have written a “libertarian” critique on “the curse of bigness” when, as I understand it, he was a pronounced progressive and, as identified by Justice William O. Douglas, “a militant crusader for social justice”? Am I missing something?

    1. The relationship between progress and libertarianism?

      1. No, how, as a “Progressive” did he write a “libertarian critique”? There’s a significant difference between the two concepts.

  4. In the fourth paragraph, could the spelling on “reign in Facebook’s monopoly power” be corrected?

  5. What is Facebook’s (or Amazon’s, or Google’s) monopoly? Are persons forced to use their services? Don’t users voluntarily join these services? I fail to see what economic harm these services provide that exceed their benefits. Now privacy regulation is something different, but people who use these services are idiots to think that their information is under lock and key.

  6. “.. there is little appetite in Congress for breaking up the platforms.”

    I’m sure it is entirely coincidental that Facebook has donated money to the people in Congress who would make any decisions concerning its fate.


    “Members of the House and Senate committees that will question Facebook CEO Mark Zuckerberg about user privacy protection next week are also some of the biggest recipients of campaign contributions from Facebook employees directly and the political action committee funded by employees.”

  7. The entitled generation entitles you?

  8. What’s the worst-case scenario if the government does nothing to regulate Facebook?

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