By Josh Withrow, National Taxpayers Union
Although some on the right have become more open to considering antitrust as a response to concerns about the power that the “Big Tech” companies are able to wield over public discourse and access to information, conservatives have by and large continued to recognize the importance of keeping antitrust aimed at economic harms to consumers. Thus, it was somewhat of a shock when the enormously influential and respected Heritage Foundation published a “road map” to “combatting Big Tech’s totalitarianism” that included a prescription for an incredible expansion of antitrust enforcement.
Written by Research Fellow Kara Frederick, the report documents a long list of troubling behaviors by Google, Meta (Facebook), Apple, Amazon, and Twitter, among others, in their restrictions of free expression on their platforms and their treatment of conservative viewpoints in particular. However, the detailed policy prescriptions at the end of the report involve investing the government with tremendous new powers in order to alter these private companies’ behavior. First among her prescriptions is a startling expansion of the scope of antitrust enforcement that clearly moves beyond the consumer welfare framework that conservative organizations — including the HeritageFoundation itself — have long defended.
Frederick does briefly mention that the consumer welfare standard should be codified into law. This would be a very positive limitation on government power, and is something that Senator Mike Lee included as part of his antitrust reform bill the TEAM Act (S. 2039) introduced this Congress. The problem is that the rest of the antitrust reforms proposed in the report would vitiate the substance and spirit of the consumer welfare framework, and indeed share more in common in many respects with the progressive vision for a revitalized, expansive antitrust.
To quickly recap: by the middle of the Twentieth Century, U.S. antitrust laws established to break up the giant cartels of the late 19th century were being wielded against private industry so haphazardly that a consensus emerged across a wide spectrum of political and economic thought that they needed to be constrained by definite guiding principles. The legal framework that emerged from this over a series of legal decisions in the 1960s and 1970s was spearheaded by conservative scholars, especially Robert Bork, and focused antitrust enforcement on the preservation of “consumer welfare.” The establishment of the consumer welfare standard for antitrust has been called “the Right’s greatest legal success.”
Frederick starts by recommending increased scrutiny of Big Tech mergers “past, present, and future.” The narrative that somehow the large digital platforms have gotten a pass on anticompetitive mergers and acquisitions (M&A) has been a frequent talking point of the Left, who accuse Big Tech of enforcing “kill zones” by gobbling up nascent competitors before they grow large enough to be threatening. Actual research into Big Tech M&A activity has failed to back up the kill zone theory, but that unfortunately hasn’t stopped a bill (S. 3197) banning M&As by tech firms over a given size from achieving bipartisan support.
Other proposals would fundamentally undermine due process of law by shifting the burden to companies to prove that a merger is not anticompetitive, and would have a negative impact on tech startups, who rely upon acquisition by larger incumbents as an exit strategy. The existing proposals to increase scrutiny of or even to ban mergers by the Big Tech companies are thus entirely incompatible with the consumer welfare standard. Frederick also echoes progressive efforts to ban “self-preferencing,” another restriction that makes little sense if the goal of antitrust enforcement is to ensure the protection of consumer welfare.
Even more alarming is Frederick’s recommendation to “launch aggressive antitrust investigations to determine whether Big Tech companies are colluding on content moderation and viewpoint discrimination against legitimate speech.” This is followed by suggesting that the “limitation of access to political speech and the exploitation of user data constitute[s] harm to consumers” while demanding that the consumer welfare standard be defined as applying to “zero price markets.”
These suggestions fall into the same routine as progressive antitrust crusaders, who claim that the consumer welfare standard is blinded by a reliance on proving monopolistic price increases, whereas many of these online platforms offer many services for “free” but profit from them in other ways. In fact, it has always been the case that antitrust cases can be brought against harms to product quality and to innovation as well. Some of the pending antitrust cases against several of the Big Tech firms being pursued by the Federal Trade Commission (FTC) and the Department of Justice (DoJ) hinge upon these non-price harms, as did the government’s successful case against Microsoft over two decades ago.
Seeking to include an entirely non-economic harm (restriction of speech or viewpoint discrimination) under the auspices of antitrust enforcement would further drastically reshape the scope of antitrust enforcement. To begin with, content moderation by private platforms is protected under the First Amendment, even if the way that these platforms police “disinformation” is viewed as concerning. More importantly, the consumer welfare standard focuses antitrust analysis on economic evidence for anticompetitive conduct by a firm, and there is no way to quantify something like “harms to free speech.” Such a judgment would be necessarily subjective and political and thus to shoehorn it into the consumer welfare standard is to fundamentally rewrite it, not codify it.
Using antitrust to police non-economic harms has been a primary goal of progressive antitrust reformers who seek to use enforcement to achieve social change. For example, current FTC commissioner Rebecca Slaughter has repeatedly suggested that she wishes to use antitrust to enforce anti-racism and “equity.” Current FTC Chair Lina Khan wants to return antitrust to the regulation of “market structure,” returning to the bad old days where merely being a big, successful company meant that the government needed to rein it in.
Wanting the leading online platforms to be better custodians of free and open discourse is a noble goal, but empowering government enforcers to define what that looks like is perilous at best. Ultimately, issues of content moderation and possible biases against conservative speech should not be addressed via antitrust, and assuming that government enforcers will use such authority in a way that benefits conservatives is wildly optimistic. The Heritage Foundation’s consistent, decades-long support for the consumer welfare standard and a cautious approach to antitrust continues to be the correct approach, this recent deviation notwithstanding.
Josh WIthrow is the Director of Technology Policy for the National Taxpayers Union Foundation.