op-ed

Will DOJ Deregulation Ironically Harm The Free Market?

Is the Department of Justice poised to roll back safeguards that protect free markets and free thinkers nationwide?

Not long ago, Lois Lerner and the IRS targeted conservative groups, two of which I ran in the State of Ohio. In clear violation of the law, the agency asked us to identify all the Tea Party members and groups we ever worked with, as well as each one’s tax identification number, transcripts of all our meetings, and copies of the materials distributed at each one. It does not take a rocket scientist to determine that this was a purely political move with the intent of measuring the size and scope of the conservative movement. Their goal was to intimidate Tea Party leaders, scare off donors, and make sure that the Tea Party groups were not as effective in the 2012 presidential election as they had been in the historic 2010 House elections. Their plan worked.

This problem was not exclusive to us. We further investigated this matter by organizing nationally and found that it was happening to conservatives across the country. Other groups had it worse than us and were told to provide everything from family members’ names to leaders’ intent to hold political office to a list of organizational donors.

After fighting a stressful five-year battle, we finally won the fight, ensuring that the IRS could never again be used as a political weapon against American citizens and groups they support. The IRS “express[ed] its sincere apology” for what occurred, and it was put under a free market consent decree halting all forms of agency-wide political discrimination.

But now, Attorney General Jeff Sessions has ordered the DOJ to review thousands of consent decrees, including those in the antitrust arena as well as those restraining police departments – regulations that he calls “one of the most dangerous and rarely discussed exercises of raw power.”

To be sure, Sessions isn’t completely wrong: a good portion of the United States’ consent decrees are outdated, ineffective, and unnecessary. However, we must caution the Attorney General to be selective in this review process, as scores of free market protective measures are at risk of being scrapped if he does not choose carefully.

Perhaps the best example of ineffective decrees are the ones the Obama Administration put the federal government and local police departments under, which Sessions blames for reducing officer morale. While there is no denying that this nation needs measured police and criminal justice reform, these decrees circumvent the Constitution, cost hundreds of millions of dollars, and have been found to be greatly ineffective. There are better legislative remedies to ensure a fine line is walked between reducing discrimination and abuse and protecting the citizenry. For that reason, consent decrees are not the answer – at least in this case.

But not all consent decrees are created equally. Some of them restrain the overarching government – or creatures of the overarching government – from abusing power. It is critical that the Justice Department makes this distinction and separates the good ones from the bad so it doesn’t rashly dispose of them all en masse.

The problem is that special interests seem to be convincing the DOJ that the term consent decree is inherently a dirty one and that this so-called burdensome red tape should be pulled back at every possible turn.

For example, recently the Justice Department held an antitrust consent decree roundtable – an event that was supposed to analyze the 1,300 decrees on the books but instead turned mainly into a conversation about the existing free market consent decrees restraining the music industry.

For years, ASCAP and BMI – the two collectives that control the performing rights licenses to virtually every song in the United States – have been advocating that the DOJ roll back the restraints that have been in place against them since 1941.

The reason the government established these consent decrees in question is because Constitutional-granted intellectual property rights naturally create an anti-competitive market in the music industry, where these two license-granters can raise prices and not have to worry about the typical repercussions of a competitor entering the market to undercut them.

Even SESAC – a smaller, upstart competitor that only controls about 4 percent of the performance licensing market – was recently forced to come under a similar agreement due to its engagement in equally anticompetitive behavior. And yet, the Justice Department is presently spending a good portion of its time debating removing the music collectives’ restraints, which help to enforce market pricing in a non-competitive industry.

I mention this case study not because I have any particular affinity for the music industry. I mention it because as a conservative, I worry that the DOJ is about to begin deregulating just for deregulating’s sake. I worry that every consent decree – even the ones that conservatives like myself fought long and hard to put in place – is at risk of being put on the chopping block and that the free market is about to become less free.

It is critical that the Justice Department realizes that not all consent decrees are merely liberal red tape. Whether it’s ensuring equal treatment for political groups or preserving fair market pricing across given industries, many of these decrees are the only thing stopping a multitude of level playing fields across America’s capitalist market economy from turning into a Wild West-like environment.

Groups like mine have fought long and hard to implement these guardrails, and we will fight just as hard now to protect them. Here’s hoping that the Trump administration is listening.

Tom Zawistowski is Executive Director of the Potage County Tea Party and President of the We the People Convention. He is a past president of the Ohio Liberty Coalition. 


The views and opinions expressed in this commentary are those of the author and do not reflect the official position of The Daily Caller.