We Should Not Have Our Constitution Redesigned by Antitrust Lawyers

Kristian Stout —  30 December 2019

[TOTM: The following is the sixth in a series of posts by TOTM guests and authors on the politicization of antitrust. The entire series of posts is available here.]

This post is authored by Kristian Stout, Associate Director at the International Center for Law & Economics.

There is a push underway to punish big tech firms, both for alleged wrongdoing and in an effort to prevent future harm. But the movement to use antitrust law to punish big tech firms is far more about political expediency than it is about sound competition policy. 

For a variety of reasons, there is a current of dissatisfaction in society with respect to the big tech companies, some of it earned, and some of it unearned. Between March 2019 and September 2019, polls suggested that Americans were increasingly willing to entertain breaking up or otherwise increasing regulation on the big tech firms. No doubt, some significant share of this movement in popular opinion is inspired by increasingly negative reporting from major news outlets (see, for a small example, 1, 2, 3, 4, 5, 6, 7, 8). But, the fact that these companies make missteps does not require that any means at hand should be used to punish them. 

Further, not only is every tool not equal in dealing with the harms these companies could cause, we must be mindful that, even when some harm occurs, these companies generate a huge amount of social welfare. Our policy approaches to dealing with misconduct, therefore, must be appropriately measured. 

To listen to  the media, politicians, and activists, however, one wouldn’t know that anything except extreme action — often using antitrust law — is required. Presidential hopefuls want to smash the big tech companies, while activists and academics see evidence of anticompetitive conduct in every facet of these  companies’ behavior. Indeed, some claim that the firms themselves are per se a harm to democracy

The confluence of consumer dissatisfaction and activist zeal leads to a toxic result: not wanting to let a good crisis go to waste, activists and politicians push the envelope on the antitrust theories they want to apply to the detriment of the rule of law. 

Consumer concerns

Missteps by the big tech companies, both perceived and real, have led to some degree of consumer dissatisfaction. In terms of real harms data breaches and privacy scandals have gained more attention in recent years and are undoubtedly valid concerns of consumers. 

In terms of perceived harms, it has, for example, become increasingly popular to blame big tech companies for tilting the communications landscape in favor of one or another political preference. Ironically, the accusations leveled against big tech are frequently at odds. Some progressives blame big tech for helping Donald Trump to be elected president, while some conservatives believe a pervasive bias in Silicon Valley in favor of progressive policies harms conservative voices. 

But, at the same time, consumers are well familiar with the benefits that search engines, the smartphone revolution, and e-commerce have provided to society. The daily life of the average consumer is considerably better today than it was in past decades thanks to the digital services and low cost technology that is in reach of even the poorest among us. 

So why do consumers appear to be listening to the heated rhetoric of the antitrust populists?

Paul Seabright pointed to one of the big things that I think is motivating consumer willingness to listen to populist attacks on otherwise well-regarded digital services. In his keynote speech at ICLE’s “Dynamic Competition and Online Platforms” conference earlier this month, he discussed the role of trust in the platform ecosystem. According to Seabright, 

Large digital firms create anxiety in proportion to how much they meet our needs… They are strong complements to many of our talents and activities – but they also threaten to provide lots of easy substitutes for us and our talents and activities… The more we trust them the more we (rightly) fear the abuse of their trust.

Extending this insight, we imbue these platforms with a great deal of trust because they are so important to our daily lives. And we have a tendency to respond dramatically to (perceived or actual) violations of trust by these platforms because they do such a great job in nearly every respect. When a breach of that trust happens — even if its relative impact on our lives is small, and the platform continues to provide a large amount of value — we respond not in terms of its proportionate effect on our lives, but in the emotional terms of one who has been wronged by a confidant.

It is that emotional lever that populist activists and politicians are able to press. The populists can frame the failure of the firms as the sum total of their existence, and push for extreme measures that otherwise (and even a few short years ago) would have been unimaginable. 

Political opportunism

The populist crusade is fueled by the underlying sentiment of consumers, but has its own separate ends. Some critics of the state of antitrust law are seeking merely a realignment of priorities within existing doctrine. The pernicious crusade of antitrust populists, however, seeks much more. These activists (and some presidential hopefuls) want nothing short of breaking up big tech and of returning the country to some ideal of “democracy” imagined as having existed in the hazy past when antitrust laws were unevenly enforced.

It is a laudable goal to ensure that the antitrust laws are being properly administered on their own terms, but it is an entirely different project to crusade to make antitrust great again based on the flawed understandings from a century ago. 

In few areas of life would most of us actually yearn to reestablish the political and social order of times gone by — notwithstanding presidential rhetoric. The sepia-toned crusade to smash tech companies into pieces inherits its fervor from Louis Brandeis and his fellow travelers who took on the mustache-twisting villains of their time: Carnegie, Morgan, Mellon and the rest of the allegedly dirty crew of scoundrels. 

Matt Stoller’s recent book Goliath captures this populist dynamic well. He describes the history of antitrust passionately, as a morality play between the forces of light and those of darkness. On one side are heroes like Wright Patman, a scrappy poor kid from Texas who went to a no-name law school and rose to prominence in Washington as an anti-big-business crusader. On the other side are shadowy characters like Andrew Mellon, who cynically manipulated his way into government after growing bored with administering his vast, immorally acquired economic empire. 

A hundred years ago the populist antitrust quest was a response to the success of industrial titans, and their concentration of wealth in the hands of relatively few. Today, a similar set of arguments are directed at the so-called big tech companies. Stoller sees the presence of large tech firms as inimical to democracy itself — “If we don’t do something about big tech, something meaningful, we’ll just become a fascist society. It’s fairly simple.” Tim Wu has made similar claims (which my colleague Alec Stapp has ably rebutted).

In the imagination of the populists, there are good guys and bad guys and the optimal economy would approach atomistic competition. In such a world, the “little guy” can have his due and nefarious large corporations cannot become too economically powerful relative to the state.

Politicians enter this mix of consumer sentiment and populist activism with their own unique priors. On the one hand, consumer dissatisfaction makes big tech a ripe target to score easy political points. It’s a hot topic that fits easily into fundraising pitches. After all, who really cares if the billionaires lose a couple of million dollars through state intervention?

In truth, I suspect that politicians are ambivalent about what exactly to do to make good on their anti-big tech rhetoric. They will be forced to admit that these companies provide an enormous amount of social value, and if they destroy that value, fickle voters will punish them. The threat at hand is if politicians allow themselves to be seduced by the simplistic policy recommendations of the populists.

Applying the right tool to the job

Antitrust is a seductive tool to use against politically disfavored companies. It is an arcane area of law which, to the average observer, will be just so much legalese. It is, therefore, relatively easy to covertly import broader social preferences through antitrust action and pretend that the ends of the law aren’t being corrupted. 

But this would be a mistake. 

The complicated problem with the big tech companies is that they indeed could be part of a broader set of social ills mentioned above. Its complicated because it’s highly unlikely that these platforms cause the problems in society, or that any convenient legal tool like antitrust will do much to actually remedy the problems we struggle with. 

Antitrust is a goal-focused body of law, and the goal it seeks—optimizing consumer welfare—is distinctly outside of the populist agenda. The real danger in the populist campaign is not just the social losses we will incur if they successfully smash productive firms, but the long term harm to the rule of law. 

The American system of law is fundamentally predicated on an idea of promulgating rules of general applicability, and resorting to sector- or issue-specific regulations when those general bodies of law are found to be inapplicable or ineffective. 

Banking regulation is a prime example. Banks are subject to general regulation from entities like the FDIC and the Federal Reserve, but, for particular issues, are subject to other agencies and laws. Requirements for deterring money laundering, customer privacy obligations, and rules mandating the separation of commercial banking from investment activities all were enacted through specific legislation aimed to tailor the regulatory regime that banks faced. 

Under many of the same theories being propounded by the populists, antitrust should have been used for at least some of these ends. Couldn’t you frame the “problem” of mixing commercial banking and investment as one of impermissible integration that harms the competitive process? Wouldn’t concerns for the privacy of bank consumers sound in exactly the same manner as that proposed by advocates who claim that concentrated industries lack the incentive to properly include privacy as a dimension of product quality?

But if we hew to rigorous interpretation of competition policy, the problem for critics is that their claims that actually sound in antitrust – that Amazon predatorily prices, or Google engages in anticompetitive tying, for example – are highly speculative and not at all an easy play if pressed in litigation. So they try “new” theories of antitrust as a way to achieve preferred policy ends. Changing well accepted doctrine, such as removing the recoupement requirement from predatory pricing in order to favor small firms, or introducing broad privacy or data sharing obligations as part of competition “remedies”, is a terrible path for the stability of society and the health of the rule of law. 

Concerns about privacy, hate speech, and, more broadly, the integrity of the democratic process are critical issues to wrestle with. But these aren’t antitrust problems. If we lived in a different sort of society, where the rule of law meant far less than it does here, its conceivable that we could use whatever legal tool was at hand to right the wrongs of society. But this isn’t a good answer if you take seriously constitutional design; allowing antitrust law to “solve” broader social problems is to suborn Congress in giving away its power to a relatively opaque enforcement process. 

We should not have our constitution redesigned by antitrust lawyers.

Kristian Stout

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Kristian Stout is the Associate Director at the International Center for Law and Economics (ICLE) and a contributor to TheHill.com. As a technology professional and entrepreneur for over ten years, Kristian’s scholarship is influenced by a practical understanding of the challenges facing innovators in the modern economy. Kristian has previously been a lecturer in the computer science department of Rutgers University, is frequently invited to speak on law and technology topics, and has been published in law journals and legal treatises. Kristian is an attorney licensed to practice law in New Jersey and Pennsylvania; is a partner at A&S Technologies, a software services firm; a member of the NJ State Advisory Committee to the United States Commission on Civil Rights; and sits on the board of the New Jersey Leadership Program, a nonprofit that places southasian youth into political internships in New Jersey.