Genesis
Response
Penultimate
Finale
July 15th, 2021
In a debate filled with misleading claims and hyperbole I will begin with an objective understatement: It is an eventful time to be working on antitrust law.
The rebirth of the political antitrust movement has propelled competition law to the center of national debate. In response, the federal government and dozens of states have filed lawsuits against tech companies. Congress is considering several sweeping proposals that would fundamentally alter the goals of antitrust and limit judicial oversight in order to drastically expand the power of regulators.
Not to be outdone, the FTC is wasting little time expanding its own power under newly-confirmed Chair Lina Khan. This coincides with broader efforts to undermine or eliminate the consumer welfare standard, which the Supreme Court has embraced and repeatedly reaffirmed for more than four decades.
It has been observed that political antitrust movements always result in inconsistent goals, but their contradictions are not often exposed. There is little agreement on the exact problems this new antitrust regime is supposed to remedy and even less agreement over the larger purpose of antitrust law.
Prominent voices have advocated for the use of antitrust law for causes such as campaign finance reform, income redistribution, promoting progressive labor policies, countering systemic racism, stopping online political bias, redistributing political clout, and combating misinformation, and this is only to name a few. Antitrust is viewed as a convenient regulatory tool and as an easier substitute for unrelated legislative failings.
Strangely, at a time when antitrust expansionism has become fashionable again, there are efforts to create antitrust immunities for politically favored entities and causes. For example, allowing collusion, “the supreme evil of antitrust,” when it supposedly benefits the environment.
Astoundingly, Congress even seriously considered a proposal that would grant an antitrust exemption for a price-fixing cartel among members of the newsmedia. This was simultaneous with a revival of the discussion over whether to revoke baseball’s exemption. Although there are legitimate criticisms of the MLB’s exemption, if the goal is to stop large institutions from serving as proxies for progressivism, it seems that authorizing a mainstream media cartel is something to avoid.
However, these are not the conversations we should be having. It is all reminiscent of how Ralph Nader, prior to another period of antitrust expansionism, declared that “antitrust is going modern and will shed more and more of its complexities.” It did exactly that, and so did he.
Similarly devoid of complexities is the highly-charged antitrust discourse of today. This is coupled with the fact that, as demonstrated by the previous list of intended uses for antitrust, reform advocates emphasize the many things that antitrust law can be used to do, but fail to properly identify the ultimate goal of antitrust.
The absence of an underlying goal to which these efforts can be anchored has resulted in proposals that create a license for ideologically-driven mischief, untether antitrust from economics, and function to weaponize competition policy to reorder large sectors of the economy.
Proposals advertised as necessary to rein in "Big Tech" were the camel's nose under the tent. On Friday, this became abundantly clear with Biden's signing of the Executive Order on Promoting Competition in the American Economy. This is perhaps the most sweeping and economically consequential executive order of the past half-century, and will impact technology companies, financial institutions, ISPs, pharmaceutical companies, railways, airlines, biopharmaceutical innovators, patent owners, and much more.
There is much more to be said here – about the Executive Order, the process, and the many other pieces of the current antitrust debate – but that will have to wait for another day.
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