After years of staring down threats within the government, conservatives are waking up to another potent and far less accountable threat: that of corporate conglomerates, and private concentrations of power.
Conversations about Big Tech censorship and cancel culture, while legitimate in their own right, often mask a deeper vulnerability that the rise of woke capital, acting at scale, presents — both to the individual, and to any small business that challenges the mainstream actors.
Banking services, email, and even web hosting services now come with ideological thresholds. Small businesses like Parler are snuffed out of existence on blatantly pretextual grounds for the sin of threatening their mainstream competitors. The ability to provide for one’s family can be threatened simply for refusing a vaccine that has been around for less than a year.
Savvy observers of woke capital’s ability to tyrannize its user base to hardly any economic consequence have made the link between concentrated or monopoly power and the downstream effect of suppression of speech and ideology in the marketplace. It is why there is newfound interest among conservatives for robust enforcement of the country’s antitrust laws, and ensuring those laws are best prepared to address the legal inscrutability of the digital economy’s largest actors.
But conservatives are reviving another area of law as well, with the goal of empowering the individual against some of the largest corporate interests in the world: private rights of action — otherwise known as giving private citizens the ability to legally enforce their rights under statute by suing companies for violations.
Republicans have historically been dubious about private rights of action (as well as class-action lawsuits) over concerns that frivolous lawsuits would pile up for the purpose of enriching trial lawyers while harassing businesses, forcing them to waste both time and resources. If businesses are perpetuating misdeeds in the market, either through antitrust violations, fraud, or other malfeasance, Republicans have argued that the regulating agencies — the Department of Justice or the Federal Trade Commission, for example — should be the enforcers and protectors of consumers.
But what happens when those agencies are no longer trustworthy? That is, increasingly, the attitude that is pushing conservatives to empower individuals to enforce their rights against major interests, instead of waiting for the government to do it for them.
This would seem to be an inherently conservative position to begin with. Conservatives generally love to privatize things. Why rely on the government to do what an individual with a lawyer can potentially do more efficiently?
Big Business Loves Big Government Enforcement
Big business, however, has spent years pushing the narrative that the government is a more able defender of an individual’s rights than the individual themselves. In a 2010 amicus brief filed in AT&T v Concepcion, the Chamber of Commerce made this case, arguing to the Supreme Court that the best way to police the marketplace was not allowing individuals to enforce their rights, but to let government agencies do it for them. It’s a bizarre argument from the business community until you consider the ramifications for the people making it.
Of course Big Business would rather deal with the federal government than have to litigate individual cases on the merits. Lumbering federal bureaucracies are resource-strapped and time-limited. Business interests would much rather negotiate a settlement agreement than take a case to litigation, and Big Business, particularly those represented by groups like the Chamber with armies of lobbyists in Washington, are much better positioned to negotiate away any violations.
Private rights, by contrast, are a far more democratic alternative to waiting for increasingly partisan government agencies to decide if claims are worth pursuing. This is particularly true for conservatives, who are unlikely to have their causes pursued by partisan actors within executive branch agencies.
Does anyone think the Biden administration would consider, for even a second, pursuing claims of market manipulation or anti-competitive behavior against Amazon, Google, and Apple on behalf of the conservative social media company Parler? Hardly.
Americans vs. The Interests
This dual recognition — that government agencies hostile to conservatives are unlikely to pursue their claims, and that unleashing the power of individuals against corporate interests is a democratizing antidote — is manifesting in a number of Republican-led bills containing private actions to hold corporations accountable, particularly Big Tech companies and vaccine manufacturers.
In the House, Rep. Greg Steube’s, R-Florida, CASE-IT Act is a popular Section 230 reform bill that, among other provisions, allows users to bring a civil action against dominant companies that fail to follow content moderation policies consistent with the First Amendment. Sen. Josh Hawley, R-Missouri,, along with Sens. Joni Ernst, R-Iowa, and Thom Tillis, R-N.C.., have a bipartisan bill that allows victims of rape and sex trafficking to sue pornographic websites that profit from their exploitation.
Rep. Michael Cloud, R-Texas, has taken the lead in giving private citizens the ability to seek recourse for any injuries suffered as a result of the COVID-19 vaccine. His “Don’t Jab Me Act,” which has also been introduced by Sen. Mike Lee, R-Utah, in the Senate, allows individuals who were injured as a result of being federally mandated to receive a COVID-19 vaccination to bring civil action against the government. A second bill, “Backing the Independent Decisions of Employees against Nefarious Mandates Act” provides similar recourse to individuals who were injured as a result of being required to receive the vaccine by their employer.
In an email to The Federalist, Cloud reflected the growing sentiment among Republicans on Capitol Hill seeking to empower individuals against mega-corporate interests, rather than waiting for the government to do it for them. “The American worker has been abused and left out to dry by the federal government,” he said, accusing “corporate overlords” of “eagerly serving as this Administration’s enforcement arm.”
“Complicit employers must be held accountable, and a private right of action empowers the American worker to take action against the employers that are encroaching on their privacy and freedoms to appease unconstitutional, authoritarian demands,” Cloud said.
Legal scholar John Coffee has argued that letting citizens sue, as opposed to the government simply authoring regulations, is a uniquely American method of enforcement, one that rests on the individual citizen’s capacity to fend for himself. It is also critical to upholding the rule of law, on which a functioning market economy rests.
As the famous Chicago school economists Gary Becker and George Stigler once emphasized, “The view of enforcement and litigation as wasteful in whole or in part is simply mistaken. They are as important as the harm they seek to prevent.”
Expanding private rights of action, as a matter of policy, is what you do when you can’t trust the government to fight for you. As government agencies shed their valence of neutrality and Big Business becomes overtly hostile to conservative causes, congressional Republicans are increasingly looking to give citizens the tools to fight back. Private rights of action are exactly that – accountability, democratized. Expect to see more of them.