In one of the most honest admissions from a progressive activist, Open Markets Institute Executive Director Barry Lynn acknowledged that the American Innovation and Choice Online Act is an unnecessary piece of legislation. Lynn has been a mentor in shaping the antitrust philosophy of Federal Trade Commission Chair Lina Khan, and his words hold massive weight in shaping modern progressive antitrust theories.
For Lynn to acknowledge the sufficiency of our current antitrust laws reflects that AICOA and similar radical bills are not actually necessary to respond to the antitrust challenges of today. Rather, they are political distractions intended to further the political careers of the main sponsor, Senator Amy Klobuchar (D-Minn.). In her book on antitrust, a work clearly written to earn Klobuchar some brownie points from progressives, she argued that “America’s laws have not updated to track the changes in America’s monopoly landscape.” This analysis skews the facts about America’s current legal framework to overstate the necessity and significance of Klobuchar’s legislative work.
Lynn’s statements directly contradicted the senator in saying that “we actually have some very important new laws – one of them is called the Sherman Act, one of them is called the Clayton Act,” referring to the set of antitrust laws passed in the early 20th Century that still adequately address modern antitrust issues. Senator Klobuchar has previously referred to AICOA as “much-needed legislation.” Lynn disagrees with that assessment. In fact, when referring to AICOA, he confidently said, “we don’t need it.”
Lynn has provided the basis for the scholarly framework that currently guides the FTC under Lina Khan’s leadership. Thus, if he feels that the FTC can effectively enforce antitrust violations by using our current body of laws, then those laws must be adequate for any antitrust enforcer, especially Lina Khan. Admittedly, Chair Khan has not found too much success during her tenure thus far, recently suffering an embarrassing loss in her attempt to block Meta’s merger with VR Fitness app, Within. However, it is Khan’s approach to enforcement that is interfering with her effectiveness, not the supposed inadequacies of our current antitrust laws. Instead of “maximiz[ing] the efficacy of the agency’s scarce resources,” Chair Khan’s warped understanding of enforcement has caused her to believe that “there can be enormous benefits” from pursuing cases “even if it is not a slam-dunk case, even if there is a risk you might lose.”
This approach has led to Khan pursuing obviously loser cases. A prominent example was her attempt to block the Meta-Within merger. Many long-time agency staffers had warned Khan would likely fail in court, but she still dedicated agency resources to the case regardless of their concerns. Khan’s desire to pursue politically friendly allegations of antitrust violations over legally obvious claims is causing Khan to allow apparent antitrust violations to go ignored, while she still proceeds to lose the cases that she does bring to court.
Barry Lynn’s statements exposed the myths underlying progressive legislators’ current antitrust rhetoric. They make it impossible for progressives to continue asserting that AICOA and similar bills are necessary to deal with modern antitrust problems. Considering the issues already plaguing these bills, Congress must finally admit that the bills are not a solution to our economic woes, and would actually exacerbate them more than help them.