Conservatives are fed up with elite corporate America. They have long felt that corporate media has been in all-out war against the conservative movement. The U.S. Chamber of Commerce’s recent break with conservatives has been well chronicled. And now we have reports of a hundred or more executives from elite companies gathering to organize opposition to popular conservative policies, including plans for pulling or delaying investment in States where conservative policies advance.
Coming on the heels of the big-business response to Georgia’s recent voting reforms—replete with Major League Baseball pulling its All-Star Game from Atlanta in favor of Denver, where there are fewer days of early voting—this meeting feels like an exclamation point on the end of a collapsing relationship. You now see influential conservatives calling for “war with the corporations.”
Whether or not the coming battle with corporate elites is the right path forward, a fight is clearly brewing. The current moment offers principled conservatives a chance to reappraise the proper role and power of corporate elites. And that reappraisal should undoubtedly include looking for a fresh set of guiding principles for how to approach consumer protection.
Conservatives have too often failed to present a compelling approach to consumer protection. A harsh commentator might characterize longstanding conservative policy as “don’t go after elite corporate America, ever, over anything.” But certain conservative officials have started to test an approach that focuses on everyday consumers rather than having consumer protection be about punishing corporate America, protecting corporate America, or picking and choosing winners in the marketplace.
With these recent experiences in mind, conservatives should diligently channel four key principles whenever they deploy consumer protection powers:
1. Curable consumer harm should be the foundation of any consumer protection action. Before launching an enforcement action, there should be not only actual consumer harm that the corporate defendant caused, but also a way for consumers to be made whole. If consumers haven’t been harmed in a concrete, cognizable way, there is little reason to deploy substantial public resources. And that is especially true if there is no plan for how to put money back in consumers’ pockets. Otherwise, the whole enterprise collapses into another big-government feedback loop that benefits mostly the bureaucracy.
2. Corporate willfulness should be the touchstone for when to go after companies. Public officials shouldn’t be in the business of suing corporations for accidents, mistakes, or misunderstandings. And there is plenty of shady, willful conduct by corporate elites that could be pursued without getting distracted by unintentional missteps—from automakers hiding defeat devices in their diesel cars, to Google’s hijinks in preventing consumers from turning off location tracking and corporate monitoring, the pool is deep. And that’s before considering that many State consumer laws reserve the most serious punishments only for willful violations.
3. There has to be a goal of ensuring that consumers retain options. Public officials shouldn’t be using enforcement actions to shut down industries or business models that are already legally operating. Consumer protection is about consumers and making their lives better, which includes ensuring them more choices; it should never be a tool to pick winners and losers in the marketplace by stamping out some industries for the benefit of others.
4. Money in consumers’ pockets has to be the end-all, be-all. It’s pointless to identify curable consumer harm willfully caused by a corporation if you don’t focus above all on remedying that harm. From the initial request for relief through negotiations and litigation to final resolution via trial or settlement, consumers should always be the focal point, coming first in line and capturing the maximum benefits.
These principles put consumers first and stay true to conservative beliefs. And they certainly diverge from the left’s approach, which too often seems fixated on some combination of bureaucratic empire building and reshaping the economy by banishing whole industries to the ash heap. This is crucial—violating your principles and mimicking the left just to spite certain companies or industries is a dangerous, unhinged path that ends with greater conservative losses and threatens our free economy.
Left-wing consumer protection efforts look like the attack a few years ago on Exxon for not toeing the appropriate line on climate change—there was no consumer harm, just a desire to punish the fossil fuel industry for existing and not voluntarily shutting itself down. The same applies when liberals point consumer protection laws at firearms, conservative think tanks, or other disfavored actors. And it doesn’t get any better when liberals obtain big pots of money from corporate wrongdoers. When that happens, they have a habit of pocketing it in government coffers or sending it to their outside allies, leaving everyday consumers empty-handed. Perhaps the most famous example was when President Obama’s Department of Justice inked settlements with big banks and others that counted dollars donated to liberal non-profits as worth twice as much toward settlement obligations as dollars sent to those who brought the cases.
These are exactly the wrong approaches, and it shows. Sen. Bernie Sanders and other liberals have long lambasted conservatives as being beholden to corporate elites. The current moment offers conservatives a chance to regroup around a better approach, with four key consumer protection principles that focus on consumers, protect the marketplace from political vendettas, and offer a stark contrast to left-wing efforts that so often fail everyday consumers.
O.H. Skinner is the executive director of Alliance For Consumers and the most recent solicitor general in the Arizona attorney general’s office, where he represented Arizona against some of the world’s largest, most high-profile corporations.