The ideological certitude with which FTC Commissioner Lina Khan explains her latest investigation of Microsoft is revealing of the zeitgeist of our time. Interviewed by the Wall Street Journal, she explains that Microsoft may have violated antitrust law–or rather policy and politics, because it is not properly law–by consensually hiring the co-founder of startup Inflection AI and almost all its staff, and compensating the ongoing concern with a licensing fee. Watch the video accompanying the story “FTC Opens Antitrust Probe of Microsoft AI Deal,” June 6, 2024. It is with the most reasonable political correctness that Ms. Khan declares:

In Washington, there is increasingly a recognition that we can’t as a government just be totally hands-off and stand out of the way.

I wonder at what fleeting moment the young law professor nominated by Joe Biden thinks the federal government was “totally hands-off” and “out of the way.” It would be interesting to know what evidence she has to support her contention.

She also says:

You’re right that in some ways this is going to look different. … And we as policymakers and we as a society can help make decisions and choices that are going to steer the technologies on a path that actually serves us rather than a model where a handful of companies are just extracting more and more from society, from creators, and people feel they don’t have recourse.

Who are “we as policymakers” and “we as a society”? Are the two political “we” the same? Don’t “we as policymakers” represent at best 50% +1 of the “we as a society”? And that is the best case. I suspect that our Washington political bureaucrat hasn’t reflected much on these issues and entertains an intuitive and naïve conception of democracy. Twentieth-century welfare economics and social-choice theory, often developed by economists who, like Ms. Khan, had a sweet tooth for economic and social planning, showed that “we as a society” raises problems of preference aggregation that can only be solved by authoritarianism—“dictatorship,” in the terms Kenneth Arrow’s famous theorem. Only a society of identical individuals can be imagined as saying “we” (through our collective mouth). James Buchanan and public-choice economics added a realistic view of “we as policymakers” and a more sensible view of democracy.

In reality, Ms. Khan’s “we as policymakers” hides an authoritarian desire to control society:

At the FTC … we are scrutinizing the entire stack, from the chip, to the computing cloud, to the models, to the apps. … The raw material for a lot of these tools is in the hands of a very small number of companies. … There could be self-dealing, there could be discrimination, there could be exclusion, so that the big guys are just getting bigger at the expense of everybody else.

Ms. Khan seems to unknowingly admit that her crusade is part of a general ideology of social engineering from above.

Could it be that Microsoft and Inflection structured their deal so that it did not fall foul of what the surveillance state does not like? That is certainly a possibility. It is a scary possibility, but not in the way Khan seems to imagine. The rule of law does not consist in a majoritarian government using a wide and expanding complex of laws and regulations to prevent anything “we as policymakers” do not like and mandate anything that “we as policymakers” want. Such a conception of government represents a “government of men” (OK, make it “of persons”), not a “government of laws.” With the proliferation of laws and regulations, there must now exist at least one legal instrument for every potential power grab. Refusing to see this suggests a disregard of both the economic-scientific study of society and the modern conception of liberty, in favor of an unexamined and dangerous predilection for collective choices over individual choices.

As an instinctive adherent to majoritarian democracy—we as policymakers representing we as the current majority in society—Ms. Khan should be as happy if Donald Trump is elected policymaker-in-chief as if the crown is given to Joe Biden. The people will have spoken in one case as in the other. Setting the problem in these terms suggests that the danger of collective choices is the same on the right and on the left as we know them: under a strong leader, “we” impose “our” preferences on the rest of the “we.” It is urgent to think out of the political box.


Big Mother grabbing control of bad businesses (By DALL-E under the inspiration of P. Lemieux)

Big Mother grabbing control of bad businesses (By DALL-E under the inspiration of P. Lemieux)