Originally Published in the Washington Examiner on May 03, 2021 03:03 PM
By: Grover Norquist
Conservatives are understandably concerned about Big Tech censorship, with some looking to use antitrust law to “break up” companies they don’t like.
Politicizing the antitrust enforcement process would only play into the Left’s hands. It would be like performing an appendectomy with a baseball bat — it won’t accomplish what you say you want, but it will leave a mess on the floor.
The Left has long wanted to destroy the prevailing “consumer welfare standard,” a concept promulgated by conservative Judge Robert Bork that has now undergirded antitrust law for over four decades. The consumer welfare standard is simple. When evaluating alleged anti-competitive conduct, judges and regulators must look to whether the business practices in question have harmed consumers. Consumer harm is measured through tangible effects, such as higher prices or reduced product quality. The standard is designed to protect the competitive process, not individual firms in a marketplace from being beaten by rivals.
This focused, economically grounded approach to antitrust enforcement has been the rule for four decades. The consumer welfare standard has produced a more reliable, consistent approach to antitrust enforcement than in the abusive past. It has fostered innovation and economic activity.
Conservatives have never wavered in supporting the consumer welfare standard because it reduces arbitrary government action. The standard inoculates antitrust law from being used as a weapon for faceless government bureaucrats or self-promoting politicians to punish their political enemies. The Left wants to turn the clock back a hundred years on antitrust law in favor of a broader, more arbitrary enforcement approach. The “neo-Brandeisians” follow the teachings of late Supreme Court Justice Louis Brandeis, who thought a firm’s bigness in and of itself was evil and worthy of government intervention. Brandeis saw antitrust law as a tool to punish big companies for the sin of success, no matter how much it would damage consumers.
Naturally, the left-wing neo-Brandeisian standard opens the door to an emotionally charged approach to antitrust that is primarily concerned with addressing unrelated social goals. The Left lays a whole host of problems at the feet of these big companies, such as racism, poverty, and income inequality, and wants to use the government to break them up.
The biggest problem here?
We have already tried this approach in the United States, and it failed miserably. Just look at case law. Before the consumer welfare standard was adopted, antitrust law was vague and unfocused, leading to inconsistent rulings and enforcement actions designed to reward political allies or punish political enemies.
Abandoning the consumer welfare standard in favor of the Left’s approach would stifle competition and innovation. Overzealous regulators could target large companies no matter how they benefit shoppers. Greedy trial lawyers could make a killing suing companies for alleged anti-competitive practices. Even companies that have done nothing wrong would be forced to pay large sums to avoid an adverse decision in court. Successful firms under constant threat of antitrust investigation would be less likely to engage in robust competition, leading to higher prices and reduced access to goods and services for consumers.
So far, conservatives have rightly remained united against the Left’s big-government antitrust approach. House Republicans have unanimously opposed Democratic Rhode Island Rep. David Cicilline’s absurd playbook for breaking up Big Tech, and no Senate Republican has co-sponsored Democratic Minnesota Sen. Amy Klobuchar’s bill to restrict mergers and acquisitions arbitrarily. This does not mean that threats are not on the horizon. The fact is, antitrust law is simply not designed to address concerns with content and speech moderation. It is just the wrong tool for the job.
Klobuchar sees aggressive antitrust action as a tool to “rejuvenate capitalism” and has announced plans to target every industry with enforcement actions. That can never happen unless foolish Republicans join Klobuchar’s crusade. But if this did happen, it would open the door to unelected bureaucrats using the government to reshape the entire economy.
This is not conservative. Not free market. Not responsible. No matter how much smart left-wing politicians try to seduce conservatives into endorsing their radical antitrust approach, Republicans should not buckle.