In July 2024, on the opening day of the RNC, Donald Trump officially announced JD Vance as his vice-presidential running mate. This move was interpreted by many commentators as a turn away from traditional GOP free-market orthodoxy. Vance had, after all, expressed support for higher corporate taxes, argued that markets should serve the common good, and even praised the work of Lina Khan. It would be “hard to overstate,” Matt Stoller observed, “the earthquake this pick has fostered in the citadels of power.”
How does that thesis look a year-and-a-half later? Like nonsense.
Even during the heady days of 2024, the possibilities for anti-monopolist diagonalism were overblown. Vance and other right-wing populists (like Josh Hawley) were fair weather anti-monopolists at best, with few allies in the Republican Party. Since then, their commitment and influence have only become more tenuous. What has emerged instead is an approach to market governance that centers around the whims and interests of Trump, his family, and allies—a form of deregulation that does not give way to “the market” but rather creates space for pre-bureaucratic personalist forms of power.
Let’s look around. Over the past six months, all of the pro-enforcement (if not quite anti-monopolist) appointees at DOJ have been pushed out, without a peep from Vance. The CFPB, under the leadership of sworn enemy of corporate accountability Russell Vought, has been effectively closed for a year. Both the SEC and the CFTC have dropped around half of their cases and cut staff to the bone. The USDA has “reorganized” to encourage incumbent employees to leave.
These developments have cleared the way for corruption and insider dealing. At DOJ, merger review has become a corruption-fueled settlement factory, interrupted only by the White House’s own corrupt efforts to use threats of antitrust enforcement to shape media discourse in their favor and line Trumpworld’s pockets. Financial regulatory agencies have been clear about their desire to see crypto and prediction markets grow, both of which Trumpworld likes to invest in and use for corruption. Under now-Chair Michael Selig, the CFTC announced that it will attempt to stop states from regulating prediction markets at all—meanwhile, administration insiders seem to be using these markets to profit from their insider knowledge about plans for tariffs and bombing foreign nations.
The one arguable exception to this pro-monopolist, pro-corruption reorientation of federal market governance policy is the FTC. The agency has remained relatively well staffed. Chair Andrew Ferguson, supported by Vance, voted in favor of Biden-administration-drafted 2023 Merger Guidelines as a Commissioner, explicitly told staff that those guidelines would continue to govern under his leadership, and has defended disclosure regulations that came with those guidelines in court (unsuccessfully so far). Although the FTC under Ferguson dropped its defense of the non-compete rule (due to new leadership’s belief that the FTC Act does not authorize competition rulemakings), the agency has continued to investigate and enforce against non-competes and to favor antitrust enforcement of labor rules as well. It has also continued various consumer-protection enforcement initiatives—preparing to propose on rental housing fees and click-to-cancel plans, settling or winning cases against various fraudsters, exploring safeguards for children on the internet—although mostly in a scaled back form characteristic of Republican administrations that follow Democratic ones.
If the FTC is an exception, it is a partial one. Its leadership has not stood in the way of the increasingly corrupt merger review at DOJ, and it has not demonstrated any fresh initiative for breaking up big firms or establishing terms for fair competition in frontier industries—both of which allow corruption and fraud to flourish. Still, the fact that the FTC has managed to carve out even this limited space for enforcement is notable, and the way that it has done so is revealing.
They key, I think, is that the FTC has introduced an element of what I have called (drawing from Justice Scalia) “Kulturkampf and fits of spite” into its approach to market governance. An increasing share of the rhetoric that comes out of the FTC is avowedly conservative and pugilistic toward the Biden administration and other enemies of the right-wing media ecosystem that Trump inhabits. For instance, when a Trump-appointed judge recently sided with the US Chamber of Commerce and vacated a Biden-era regulation that required more disclosures during merger review, the FTC called the Chamber of Commerce (the Chamber of Commerce!) “a left-wing, open borders supporting activist group.”
And this spitefulness has gone beyond rhetoric. Earlier this month, Chair Ferguson warned Apple that its Apple News algorithm might be “deceptive” insofar as it insufficiently boosts right-wing media outlets and warned multiple major law firms that their coordination over diversity in hiring might amount to “anticompetitive collusion.” Ferguson has also pledged to rid the FTC of DEI and prohibited FTC employees from joining the ABA after that organization expressed concerns about (and later sued because of) threats to the rule of law under the Trump administration. The FTC has also undertaken multiple investigations into gender-affirming care for trans people on the purported grounds that it might be “deceptive” about either the nature of gender or the side effects that come with it.
Few of these threats have escalated beyond strongly worded warnings. The internal employment policies have some teeth, and Ferguson did successfully convince merging media companies to refrain from “colluding” to withdraw support from media sources that take (hateful) right-wing positions. But I doubt we will see the deception cases end up in litigation, as they would pull at the limits of existing consumer protection doctrine (as I have explained with respect to transgender healthcare here) and push against the limits of the First Amendment. Indeed, it’s not clear to me that Chair Ferguson actually believes the legal theories he’s mouthing.
It seems more likely that this FTC will adopt the strategy we have seen at several other agencies during Trump’s second term: big talk that pushes the limits of law in the hope inducing anticipatory compliance or extracting corrupt settlements. If Apple and trans healthcare providers cave under the pressure, this FTC gets the result it wants without having to develop the legal theory or invest the resources in litigation. If they don’t, then everybody’s short attention span—including Trump’s—will move on to the next thing and there’s no loss on the record. In either case, the FTC has demonstrated its loyalty and its ideological bona fides. And that demonstration gives the FTC some room for maneuver in other areas.
In fact, it’s somewhat misleading to present this as “the FTC’s” strategy, because, as far as I can tell, it seems to be the strategy of Chair Ferguson the individual. Ferguson is a former Thomas clerk, and the chatter around Washington is that he’s angling for a spot high up in the federal judiciary himself. He landed his current job by making sycophantic public statements about Trump and sending a private memo that indicates his willingness to take on ideological enemies, and I have found it useful to see his tenure at the FTC as carefully orchestrated performance. (The fact that he can effectively set the agenda is also due to the fact that Trump fired the Democratic Commissioners—setting up the direct challenge to Humphrey’s Executor over which the conservative legal movement is currently salivating—and one of the other Republican Commissioners left, leaving only Ferguson and his ally Mark Meador.)
What does this playbook look like? Ferguson wants to attract the attention of Trump’s inner circle, which means the FTC needs to do more than simply be gobbled up by DOGE or Russell Vought. But he can’t be too ambitious, lest his actions anger a donor or interfere with Trumpworld corruption. The safest course is to make a lot of noise about going after Trump’s enemies, bring enough actual enforcement actions to be able to point to a record of effectiveness, and not lose cases in an embarrassing way. (It may also help to write unprecedently long opinions that demonstrate one’s familiarity with Thomas-style legal reasoning.) The most obvious targets to satisfy these various goals are vulnerable groups that MAGA has demonized. Big Tech fit that description a couple years ago, but since they’ve generally lined up behind Trump, one must proceed cautiously there: better to attack them on the limited grounds of censorship of right-wing voices (whether or not that leads anywhere) than to go after their market power or figure out what the details of common carrier regulation on content moderation would actually look like in practice.
What makes the case of Ferguson’s FTC notable is not his trajectory per se, but what it shows about how a market regulator must act to survive elimination in the current Trump administration. One must flatter Dear Leader, ensure that industries favored by him and his cronies are happy, find ways to target ideological enemies, and maintain ambiguity about one’s actual approach to market governance. Some parts of the FTC continue to function more or less as they have for years, shielded by Ferguson’s ambition and their lack of political salience in the current environment. Others have been enlisted into culture wars. And others have been eliminated or abandoned. All of this balances tenuously on Ferguson’s continued employment at the agency. If he continues to get passed over for judgeships, his creative ambition may well develop into a distinctive approach to FTC governance. If his “pick me” strategy works, though, the next FTC Chair will need to develop their own strategy for maintaining their role. A less ambitious chair might also be more deregulatory.
Situating the FTC in the broader landscape of market governance, the vision of “post-neoliberalism” that emerges has little to do with anti-monopolism or the centrist post-neoliberalism being promoted in some quarters. Indeed, it looks not unlike the deregulation of the 1970s returning as farce. Regulatory agencies are cut to the bone, leaving only relatively low-level anti-fraud enforcement. OIRA and OMB are avowedly antiregulatory and increasingly use their influence to advance the White House’s political agenda as agency independence erodes. Some residual notion of preventing overaccumulation of market power remains, but it is not applied in anything that resembles a consistent or principled manner. Backroom deals and open bribery shape increasingly large domains of policy. Other domains respond to the dynamics of moral panics and/or conservative grievance. Scams and frauds are not just tolerated but, at least in sectors in which MAGA leadership has a stake, actively encouraged. This is a world of increasingly concentrated economic power, and one in which that power and impunity is cemented through tribute to the President, the President’s family, and those the President favors. Carving out exceptions requires flattering those political insiders, which, so far, has required the boldness of individual ambition. Whether the regulatory paradigm that emerges lines up with this or that theory of economic regulation is mostly a matter of coincidence.
It is not as if we have reached a stable new paradigm. As ever, the Trump approach is improvisatory and chaotic, and the paradigm of market governance that has emerged is as much about which warring faction within the MAGA universe has maneuvered to win his favor in the current moment as it is about long-term coordination. Still, it seems highly unlikely that there will be any re-emergence of anti-monopolism or accountability (or even anti-fraud) sentiment as long as Trump is alive and as long as any successors have to work within the corrupt administration he put together. The staff has already been fired; the loyalty has already been declared. Any form of market governance that is even vaguely oriented toward dispersing power and holding power to account will require sweeping aside what Trump has built and building something new.
