Towards a Democratic Antitrust

This symposium discusses the “The Politicization of Antitrust.” As the invite itself stated, this is an umbrella topic that encompasses a wide range of subjects: from incorporating environmental or labor concerns in antitrust enforcement, to political pressure in enforcement decision-making, to national security laws (CFIUS-type enforcement), protectionism, federalism, and more. This contribution will focus on the challenges of designing a system that protects the open markets and democracy that are the foundation of modern economic and social development.

The “Chicago School of antitrust” was highly critical of the antitrust doctrine prevailing during the Warren-era Supreme Court. A key objection was that the vague legal standards of the Sherman, Clayton and the Federal Trade Commission Acts allowed for the enforcement of antitrust policy based on what Bork called “inferential analysis from casuistic observations.” That is, without clearly defined goals and without objective standards against which to measure these goals, antitrust enforcement would become arbitrary or even a tool that governments could wield against a political enemy. To address this criticism, Bork and other key members of the Chicago School narrowed the scope of antitrust to a single objective—the maximization of allocative efficiency/total welfare (coined as “consumer welfare”)—and advocated the use of price theory as a method to reduce judicial discretion. It was up to markets and Congress/politics, not judges (and antitrust), to redistribute economic surplus or protect small businesses. Developments in economic theory and econometrics over the next decades increased the number of tools regulators and Courts could rely on to measure the short-term price/output impacts of many specific types of conduct. A more conservative judiciary translated much of the Chicago School’s teaching into policy, including the triumph of Bork’s narrow interpretation of “consumer welfare.”

The Chicago School’s criticism of traditional antitrust struck many correct points. Some of the Warren-era Supreme Court cases are perplexing to say the least (e.g., Brown Shoe, Von’s Grocery, Utah Pie, Schwinn). Antitrust is a very powerful tool that covers almost the entire economy. In the United States, enforcement can be initiated by multiple federal and state regulators and by private parties (for whom treble damages encourage litigation). If used without clear and objective standards, antitrust remedies could easily add an extra layer of uncertainty or could even outright prohibit perfectly legitimate conduct, which would depress competition, investment, and growth. The Chicago School was also right in warning against the creation of what it understood as extensive and potentially unchecked governmental powers to intervene in the economic sphere. At best, such extensive powers can generate rent-seeking and cronyism. At worst, they can become an instrument of political vendettas. While these concerns are always present, they are particularly worrisome now: a time of increased polarization, dysfunctional politics, and constant weakening of many governmental institutions. If “politicizing antitrust” is understood as advocating for a politically driven, uncontrolled enforcement policy, we are similarly concerned about it. Changes to antitrust policy that rely primarily on vague objectives may lead to an unmitigated disaster.

Administrability is certainly a key feature of any regulatory regime hoping to actually increase consumer welfare. Bork’s narrow interpretation of “consumer welfare” unquestionably has three important features: Its objectives are i) clearly defined, ii) clearly ranked, and iii) (somewhat) objectively measurable. Yet, whilst certainly representing some gains over previous definitions, Bork’s “consumer welfare” is not the end of history for antitrust policy. Indeed, even the triumph of “consumer welfare” is somewhat bittersweet. With time, academics challenged many of the doctrine’s key tenets. US antitrust policy also constantly accepts some form of external influences that are antagonistic to this narrow, efficiency-focused “consumer welfare” view—the “post-Chicago” United States has explicit exemptions for export cartels, State Action, the Noerr-Pennington doctrine, and regulated markets (solidified in Trinko), among others. Finally, as one of us has indicated elsewhere, while prevailing in the United States, Chicago School ideas find limited footing around the world. While there certainly are irrational or highly politicized regimes, there is little evidence that antitrust enforcement in mature jurisdictions such as the EU or even Brazil is arbitrary, is employed in political vendettas, or reflects outright protectionist policies.

Governments do not function in a vacuum. As economic, political, and social structures change, so must public policies such as antitrust. It must be possible to develop a well-designed and consistent antitrust policy that focuses on goals other than imperfectly measured short-term price/output effects—one that sits in between a narrow “consumer welfare” and uncontrolled “politicized antitrust.” An example is provided by the Stigler Committee on Digital Platforms Final Report, which defends changes to current US antitrust enforcement as a way to increase competition in digital markets. There are many similarly well-grounded proposals for changes to other specific areas, such as vertical relationships. We have not yet seen an all-encompassing, well-grounded, and generalizable framework to move beyond the “consumer welfare” standard. Nonetheless, this is simply the current state of the art, not an impossibility theorem. Academia contributes the most to society when it provides new ways to tackle hard, important questions. The Chicago School certainly did so a few decades ago. There is no reason why academia and policymakers cannot do it again.   

This is exactly why we are dedicating the 2020 Stigler Center annual antitrust conference to the topic of “monopolies and politics.” Competitive markets and democracy are often (and rightly) celebrated as the most important engines of economic and social development. Still, until recently, the relationship between the two was all but ignored. This topic had been popular in the 1930s and 1940s because many observers linked the rise of Hitler, Mussolini, and the nationalist government in Japan to the industrial concentration in the three Axis countries. Indeed, after WWII, the United States set up a “Decartelization Office” in Germany and passed the Celler-Kefauver Act to prevent gigantic conglomerates from destroying democracies. In 1949, Congressman Emanuel Celler, who sponsored the Act, declared:

“There are two main reasons why l am concerned about concentration of economic power in the United States. One is that concentration of business unavoidably leads to some kind of socialism, which is not the desire of the American people. The other is that a concentrated system is inefficient, compared with a system of free competition.

We have seen what happened in the other industrial countries of the Western World. They allowed a free growth of monopolies and cartels; until these private concentrations grew so strong that either big business would own the government or the government would have to seize control of big business. The most extreme case was in Germany, where the big business men thought they could take over the government by using Adolf Hitler as their puppet. So Germany passed from private monopoly to dictatorship and disaster.”

There are many reasons why these concerns around monopolies and democracy are resurfacing now. A key one is that freedom is in decline worldwide and so is trust in democracy, particularly amongst newer generations. At the same time, there is growing evidence that market concentration is on the rise. Correlation is not causation, thus we cannot jump to hasty conclusions. Yet, the stakes are so high that these coincidences need to be investigated further.  

Moreover, even if the correlation between monopolies and fascism were spurious, the correlation between economic concentration and political dissatisfaction in democracy might not be. The fraction of people who feel their interests are represented in government fell from almost 80% in the 1950s to 20% today. Whilst this dynamic is impacted by many different drivers, one of them could certainly be increased market concentration.

Political capture is a reality, and it seems straightforward to assume that firms’ ability to influence the political system greatly depends not only on their size but also on the degree of concentration of the markets they operate in. The reasons are numerous. In concentrated markets, legislators only hear one version of the story, and there are fewer sophisticated stakeholders to ring the alarm when wrongdoing is present, thus making it easier for the incumbents to have their way. Similarly, in concentrated markets, the one or two incumbent firms represent the main or only source of employment for retiring regulators, ensuring an incumbent’s long-term influence over policy. Concentrated markets also restrict the pool of potential employers/customers for technical experts, making it difficult for them to survive if they are hostile to the incumbent behemoths—an issue particularly concerning in complex markets where talent is both necessary and scarce. Finally, firms with market power can use their increased rents to influence public policy through lobbying or some other legal form of campaign contributions.

In other words, as markets become more concentrated, incumbent firms become better at distorting the political process in their favor. Therefore, an increase in dissatisfaction with democracy might not just be a coincidence, but might partially reflect increases in market concentration that drive politicians and regulators away from the preference of voters and closer to that of behemoths.   

We are well aware that, at the moment, these are just theories—albeit quite plausible ones. For this reason, the first day of the 2020 Stigler Center Antitrust Conference will be dedicated to presenting and critically reviewing the evidence currently available on the connections between market concentration and adverse political outcomes.

If a connection is established, then the question becomes how an antitrust (or other similar) policy aimed at preserving free markets and democracy can be implemented in a rational and consistent manner. The “consumer welfare” standard has generated measures of concentration and measures of possible harm to be used in trial. The “democratic welfare” approach would have to do the same. Fortunately, in the last 50 years political science and political economy have made great progress, so there is a growing number of potential alternative theories, evidence, and methods. For this reason, the second day of the 2020 Stigler Center Antitrust Conference will be dedicated to discussing the pros and cons of these alternatives. We are hoping to use the conference to spur further reflection on how to develop a methodology that is predictable, restricts discretion, and makes a “democratic antitrust” administrable.  As mentioned above, we agree that simply “politicizing” the current antitrust regime would be very dangerous for the economic well-being of nations. Yet, ignoring the political consequences of economic concentration on democracy can be even more dangerous—not just for the economic, but also for the democratic well-being of nations. Progress is not achieved by returning to the past nor by staying religiously fixed on the current status quo, but by moving forward: by laying new bricks on the layers of knowledge accumulated in the past. The Chicago School helped build some important foundations of modern antitrust policy. Those foundations should not become a prison; instead, they should be the base for developing new standards capable of enhancing both economic welfare and democratic values in the spirit of what Senator John Sherman, Congressman Emanuel Celler, and other early antitrust advocates envisioned.