The Forgotten Populist Issue

Why consumer protection is a winner for the New Right.

In Washington, it’s well known that congressional hearings often don’t accomplish much. As impressive as they might look in YouTube or X clips, in reality hearings are less about investigating facts and more about showmanship for a watching public. For witnesses on the receiving end of some sharp questioning, the experience might be unpleasant, but the stakes are rarely existential.

This wasn’t always the case. In decades past, high-profile hearings led to some of the biggest transformations of American culture. Cigarette use cratered after tobacco executives alleged, in a series of disastrous 1994 hearings, that nicotine wasn’t really addictive. Hearings on violent video games led to the creation of the Entertainment Software Ratings Board, which to this day helps parents control their children’s access to mature content.

Perhaps most famously, hearings on auto safety—prompted by Ralph Nader’s bestselling book Unsafe at Any Speed: The Designed-In Dangers of the American Automobile—gave rise to the Department of Transportation and the agencies that would later become the National Highway Traffic Safety Administration.

Political polarization is nothing new, of course. But instead of turning into partisan exercises, these past legislative hearings were catalysts for real change—a durable consensus, a shift in sentiment that reformed American life for the long haul. What drove that success?

At the heart of all these famous hearings was a common concern: consumer protection. In the simplest terms, Americans have a right to know what they’re buying and a right to be treated fairly in the process. That is a commonsense claim, and a bipartisan one. But so far it’s an issue that remains largely opaque in most New Right theorizing about industrial policy and the direction of the American economy.

Consumer protection—specifically, consumer protection considered as an independent and freestanding priority—is all too often missing from the populist economic agenda. But in forging a vision intended to endure, policymakers and theorists alike shouldn’t neglect this powerful tool.

For the better part of the last decade, conservatives on the “realignment right” have been working out the contours of a populist economic agenda. Frequent motifs include the need for tariffs, reindustrialization, reshoring, decoupling, and expanded antitrust enforcement. Those ideas now help shape the second Trump administration’s economic policy.

But only infrequently, and only in isolated contexts, is consumer protection treated as a priority. When it is, consumer protection isn’t viewed as an independent issue that spans economic domains, but merely as one mechanism among others to advance broadly socially conservative policy ends. For instance, social media companies might be compelled to deploy age verification technology or restrict access to pornography, while deceptive claims about youth gender medicine (puberty blockers, cross-sex hormone treatments, etc.) ought to be curtailed.

Those efforts are certainly worthwhile. But they merely scratch the surface of the topic. Consumer protection, rightly understood as a concern in its own right, is the quintessential populist economic issue—one that cuts across traditional partisan lines and ingroup interests.

The second Trump administration’s MAHA—Make America Healthy Again—messaging exemplifies this concern: Americans have a right to know what’s in their food supply and whether it’s really good for them or not. So too does President Trump’s executive order cracking down on misconduct in online ticketing marketplaces.

When thousands of Americans—especially elderly Americans—are preyed upon by offshore scammers hawking cryptocurrencies or business-building opportunities, that is a scheme to immiserate the American populace and enrich bad actors abroad. Battling it is well within the American national strategic interest.

Along with competition policy, consumer protection is one of the two major focus areas of the Federal Trade Commission, where I most recently served under Commissioner Mark Meador. As part of the FTC’s mission, litigators, economists, and investigators target misconduct ranging from outright scams to unfair or deceptive practices by otherwise legitimate companies.

Common scams include student loan debt relief frauds—individuals posing as loan servicers who promise to discharge consumers’ debts in return for up-front fees and monthly payments that go straight to scammers’ bank accounts. And they also include business opportunity scammers who market training courses falsely promising thousands of dollars’ worth of passive income. Lower-income Americans, who often lack access to stabler opportunities, are hurt most by these frauds.

So too, as part of its consumer protection mission, the commission polices unfair or deceptive practices by some of the most powerful companies in America—such as allegations against Amazon related to its Prime subscription signup process, in which users were allegedly tricked into signing up and denied easy opportunities to cancel. That case resulted in a $2.5 billion settlement with Amazon, one of the largest in FTC history, intended to help make affected consumers whole.

Prior to serving at the FTC, I had some misgivings about executive-branch agencies exercising broad authority. That concern, of course, is shared by many other lawyers reared in the conservative legal movement. But, properly understood, the FTC is less a regulator than a law enforcement agency—concerned, just like the Department of Justice, with holding accountable those who break the laws passed by Congress.

The FTC’s great advantage is that, at least in theory, it possesses investigative resources and statutory authorities that cut to the root of consumer protection problems. When presented with reports of fraud and misconduct, the commission can—and does—compel the production of documents and interrogatory responses from targeted corporations and from affiliated financial-services companies. These inquiries form the backbone of subsequent enforcement actions. This is markedly faster—and more economically efficient—than leaving individual consumers to try securing redress through individual or class-action lawsuits.

It is also staggeringly cost-effective. Whereas private lawyers operating on a contingency-fee basis may take 30% or more of a given settlement or judgment, the FTC returned almost $31 to consumers for every $1 allocated to the agency. The agency, in short, has an extraordinary force-multiplier effect, precisely the sort of effective governance approach that contemporary New Right conservatives should view as a model: serving the common good while cutting through red tape and high costs.

In a bitter irony, though, it is this very effectiveness that has hamstrung the commission’s ability to do even more. Because consumer protection is seen as a bipartisan, relatively uncontroversial issue, it has few if any prominent champions in Congress. That means little to no momentum exists behind the legal changes that, today, are needed to fully bolster the FTC’s consumer protection mission.

The FTC derives much of its operating authority from the FTC Act—a broadly worded statute creating the agency and empowering it to enforce both consumer protection and competition laws. But in 2021, the Supreme Court determined that section 13(b) of the Act, which had previously allowed the FTC to obtain equitable monetary relief in appropriate cases, had been read too broadly. Under the court’s new reading, the commission could put a stop to illegal practices going forward, but could no longer recoup many funds acquired through a target’s bad actions in the past.

Through creative lawyering and the use of other statutes providing for monetary relief, the FTC has continued winning back some funds in some cases—but more of Americans’ money is being left on the table than ever before. In essence, the commission’s consumer protection teams are now operating with one hand tied behind their backs. Working Americans are the ones who pay the price.

To be clear, this problem is quite fixable. Congress could easily amend section 13(b) of the FTC Act to expressly allow the agency to recover equitable monetary relief, just as the agency did before the 2021 Supreme Court ruling. Some legislation has previously been introduced that would do just that. But so far, those efforts have attracted little momentum. Particularly given that this legal issue is comparatively narrow and technical, galvanizing broad popular support is a challenge—especially when coupled with the conservative movement’s longtime skepticism of administrative agencies.

Understandable as this instinct may be in many cases, it is inapt here. Consumer protection laws do not exist to harass law-abiding American businesses. Every year, the FTC receives a vast number of consumer complaints while its own litigation and investigative resources are limited. As a result, its incentive is to prioritize only the largest and most egregious cases.

Fixing section 13(b) might not be the most glamorous policy initiative, but its moral logic is airtight: this is a way of returning unlawfully obtained money to the American consumers hurt by scams and frauds. It is a policy that, if seriously entertained by the full Congress, would surely command bipartisan support. All that’s been lacking is the will to act.

One of the key distinctions of New Right thought has been its emphasis on the common good. At the most basic level, this is the notion that political decisions ought not merely serve an aggregate of entrenched private interests, but rather aim at the flourishing of the whole.

Consumer protection law exemplifies this ideal, grounded in the conviction that when parties transact, they ought to be able to do so with all relevant information. Not only do these laws help consumers make informed judgments about the wisest use of their limited resources, they benefit businesses offering useful goods and services by cultivating a broader culture of marketplace trust. Where there is a pervasive, culture-wide fear of being scammed or conned, legitimate businesses suffer as commerce stagnates.

The New Right has done remarkable work in recent years to synthesize a policy vision of “industrial democracy,” with implications for disparate domains of economic and political life. In part, it has done so by recognizing that key structural questions—such as the role of corporate power in political and civic life—cut across sectors of the market. The problem is not isolated in one industry, such that Big Tech simply happens to be too big in its niche; the problem is that corporate consolidation as such has degraded quality and disempowered individual Americans. Hence, the New Right argues for the merits of antitrust—a broad anti-consolidation, pro-competition imperative—as a discrete, baseline principle that should apply across the economy.

We should think of consumer protection in the same way. Our goal should not be to enforce consumer protection laws in isolated areas in order to achieve a limited set of policy goals. Instead, consumer protection as such is a priority worth fighting for, because it sets baseline conditions of trust within which markets flourish and ordinary Americans feel like they’re getting a fair deal. As a genuinely bipartisan and populist policy issue, it offers the possibility of securing truly generational change. In a moment when political polarization only seems to be intensifying, that is a rare opportunity indeed.