Big Tech Is Just the Beginning: House Dems Seek Major Changes to Antitrust Law
Last week, Democrats on the House Subcommittee on Antitrust released their much-ballyhooed report on competition in tech to great fanfare. It’s a beast of a crie de couer, clocking in at 449 meandering pages of disputations on the power (but not so much the efficacy) of big tech companies. To absolutely no one’s surprise, antitrust hawks love it while antitrust doves (and the targeted companies) are picking it apart.
There was a minor subplot involving Republican subcommittee members splitting into two slightly differing dissenting reports, with ranking member Rep. Jim Jordan focusing on censorship against the outer party and Rep. Ken Buck offering a “third way” of marginal reforms (data portability, more merger scrutiny, more funding for regulators) that fall far short of the Democrats’ proposed radical antitrust overhaul. But for the most part, the reports didn’t break new ground (or really, much new news) beyond underscoring battle lines with a thick permanent marker.
Here’s what the Democrats want: to remove “the narrow construction of ‘consumer welfare’ [e.g. effects on prices and quality] as the sole goal of antitrust laws” with legislation that would be designed to protect “workers, entrepreneurs, independent businesses, open markets, a fair economy, and democratic ideals” through a grab bag of new prohibitions on specific practices like mergers.
That might sound nice to many. The problem is that protecting workers can mean not protecting entrepreneurs (or vice versa) depending on the case and the judge. And what is a “fair economy”? What are “our democratic ideals”? “Open markets”—a term favored by both George Soros and Charles Koch (do they agree)? Would any two Supreme Court justices—let alone our army of lower court judges—come up with the same definitions?
A great strength of the consumer welfare standard is that it’s, well, a standard. Some of us are workers, some of us are entrepreneurs, some of us own businesses, but we are all consumers. Setting the most inclusive group as the focus of attention removes the potential for inconsistently biasing exclusive groups.
You can measure economic changes. How do you measure democratic ideals? This is why critics say the Democrat plan would “politicize antitrust”—the proposed system introduces judicial subjectivity that could empower enforcers to effectuate social agendas through antitrust. Indeed, some antitrust hawks proudly admit this is the point.
Where the Democrats have been in lockstep, the Republicans have been a bit schizophrenic. It’s easy to see why. On the one hand, Silicon Valley has no love for the GOP. Executives from the firms now under antitrust scrutiny had a bit of an open-door policy with the Obama administration (and vice versa). Needless to say, those chummy visits have stopped under the Trump administration.
On the other hand, the consumer welfare standard that is in the Democrats’ crosshairs is arguably the greatest legal victory of mov
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