Archives For Symposium

FTC UMC Roundup – Independence Day Week Edition

Gus Hurwitz —  8 July 2022

Happy Independence Day Week! Having started off with the holiday, this has been a relatively slow week on the antitrust front in the United States. But never fear, Europe is here to help fill out the weekly news roundup. And, even on a slow week there is plenty in the news domestically. Perhaps more important: everyone working on FTC and antitrust issues should take advantage of these respites when the come – any calm most likely is a harbinger of a storm to come.

This week’s headline is the passage of the Digital Markets Act (DMA) and Digital Services Act (DSA) by the European Parliament. The DMA has often been compared to the American Innovation and Choice Online Act (AICOA) – as of this week their biggest difference is that the DMA now is law while AICOA’s fate continues to appear fraught. For more details on the substance the DMA, we’ve discussed it on here on Truth on the Market, and both Axios and the Chamber of Commerce offer overviews.

Also on the European front, Europeans are beginning to reckon with the fact that soon Facebook may cease operations in Europe due to the bloc’s privacy rules. For pro-privacy regulators this may be viewed as a win. The rest of Europe was unavailable for comment (likely due to European privacy laws).

Back in the states the biggest news continues to be fallout from the Supreme Court’s embrace of the major questions doctrine. After a few days of misreporting on the opinion in West Virginia v. EPA as preventing the EPA from regulating greenhouse gasses, the media is now realizing that the import of the opinion goes to broader questions of the administrative state – and that it could impact tech regulation in particular.

Sophisticated thinkers have seen the potential impact of the case since before it was decided. In the days since they have been exploring the scope of the ruling and how the lower courts will implement it, discussing its implications for big tech, debating whether it will or will not limit the FCC’s net neutrality authority (answer: it will). And as numerous posts made as part of this TOTM FTC UMC Symposium have argued, it will likely substantially limit the FTC’s UMC rulemaking authority.

One thing I have wondered is how agencies will respond to the MQD in their rulemaking. Agencies often discuss the importance of their rules in an effort to justify them. Tom Wheeler was fond of discussing the Internet as the “most important network in the history of Man.” Arguing that the costs of regulatory action are very high helps to sell the benefits of regulation as substantial. But now, arguing that the costs of inaction are high might also make it easier to argue that the question being addressed in a major one – of vast political or economic significance. Will we start to see agencies downplay the importance of their work?

As usual, we can’t not have some updates on AICOA. The most salient update may be the lack of update. While Senator Klobuchar (D-MN) continues to push the bill forward, Leader Schumer (D-NY) has no apparent interest in bringing it to the floor. And even if it gets through the Senate, there may be trouble waiting in the House? Beyond that, this week saw both Zach Graves get off the fence and speak out against AICOA.

Quick hits: Protocol reports the CFPB is hoping to hire 25 technologists to help it wage war on the tech industry. Bloomberg reports the FTC is toying with the Robinson-Patman Act. And the FTC brings another right-to-repair action, this time against Weber, to prohibit warranties that are voided by independent repairs.

What you missed, What to watch? Last week’s Federalist Society discussion of Biden’s Antitrust Agenda: Mission Creep or Mission Achieved was a must-watch. Hope you didn’t miss it! If you did, you can redeem yourself by making it to AEI’s discussion with FTC Commissioner Noah Phillips on Crossing the Consumer Welfare Rubicon.

In Administrative Law, Antitrust & Competition, Antitrust at the Agencies Roundup, Truth on the Market , , , , , ,
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Why FTC Competition Rulemaking Likely Will Fail

Alden Abbott —  5 July 2022

[On Monday, June 27, Concurrences hosted a conference on the Rulemaking Authority of the Federal Trade Commission. This conference featured the work of contributors to a new book on the subject edited by Professor Dan Crane. Several of these authors have previously contributed to the Truth on the Market FTC UMC Symposium. We are pleased to be able to share with you excerpts or condensed versions of chapters from this book prepared by authors of of those chapters. Our thanks and compliments to Dan and Concurrences for bringing together an outstanding event and set of contributors and for supporting our sharing them with you here.]

[The post below was authored by Alden F. Abbott.]

I. Introduction

In over a century of existence, the U.S. Federal Trade Commission (FTC) has been a policy leader in developing American thinking about and in enforcing antitrust and consumer protection laws pursuant to several specific statutory mandates. It has also promulgated a substantial number of consumer protection rules, dealing with a wide variety of practices. It has almost never, however, enacted substantive rules seeking to regulate specified forms of business conduct that affect competition in the marketplace.    

In 2021, however, the prospects for FTC competition rulemaking changed dramatically. A new Biden administration FTC chair, Lina Khan, publicly emphasized that the Commission should undertake “unfair methods of competition” (UMC) rulemakings. In December 2021, the FTC issued a “Statement of Regulatory Priorities” (SRP) stating that “the Commission in the coming year will consider developing both unfair-methods-of competition [UMC] rulemakings as well as rulemakings to define with specificity unfair or deceptive acts or practices [UDAPs].” The SRP also summarized the status of FTC rules and guides that are subject to periodic review.

With regard to UDAP rules, the SRP highlighted for consideration “rules that allow the agency to recover redress for consumers who have been defrauded and seek penalties for firms that engage in data abuses.” The SRP also explained that “the abuses stemming from surveillance-based business models are particularly alarming,” and thus the FTC would consider a possible rulemaking focused on “curbing lax security practices, limiting intrusive surveillance, and ensuring that algorithmic decision-making does not result in unlawful discrimination.”

With respect to UMC rules, the FTC painted with a broad brush, and referenced President Biden’s July 2021 Executive Order on Competition:

Over the coming year, the Commission will also explore whether rules defining certain “unfair methods of competition” prohibited by section 5 of the FTC Act would promote competition and provide greater clarity to the market. A recent Executive Order encouraged the Commission to consider competition rulemakings relating to non-compete clauses, surveillance, the right to repair, pay-for-delay pharmaceutical agreements, unfair competition in online marketplaces, occupational licensing, real-estate listing and brokerage, and industry-specific practices that substantially inhibit competition. The Commission will explore the benefits and costs of these and other competition rulemaking ideas.

Recently, the Commission published in the Federal Register a “Request for Public Comment Regarding Contract Terms that May Harm Fair Competition,” which included for reference two public petitions for competition rulemaking the Commission has received. One of those petitions was to curtail the use of non-compete clauses, and the other was to limit exclusionary contracting by dominant firms, but the Commission also solicited additional examples of unfair terms. Members of the public filed thousands of comments, which the Commission’s staff are carefully reviewing.

In short, significant FTC competition-related rulemaking initiatives are to be expected in 2022. The prospect that those initiatives will yield binding rules that survive legal scrutiny is, however, vanishingly small.

This commentary (which is an abridged chapter in a book on FTC rulemaking published by Concurrences) will explore legal doctrines that seriously constrain the FTC’s ability to enact competition rules. After summarizing the FTC’s authority to engage in rulemaking, it will turn to five major legal impediments to successful competition rulemaking that the FTC must confront. Each of these impediments creates substantial competition rulemaking legal risks for the Commission. Considered collectively, these impediments point to a very low likelihood of competition rulemaking success. Accordingly, the FTC should reconsider its bold competition rulemaking agenda and focus instead on devoting those rulemaking resources to other initiatives within its purview, including competition enforcement actions and policy studies. Such a reset of FTC priorities would likely yield a far better allocation of scarce governmental resources to initiatives that benefit consumers and avoid the imposition of unwarranted costs on private actors and the competitive process.

II. Discussion

1.      FTC Rulemaking: An Overview

The Federal Trade Commission is an independent federal agency created pursuant to the Federal Trade Commission Act of 1914. The FTC’s mission is to protect consumers and promote competition (see generally here). It does this primarily through enforcement actions, directed at practices that violate section 5 of the FTC’s Act’s prohibitions on “unfair methods of competition” and “unfair or deceptive acts or practices.” While the FTC has also promulgated binding rules and non-binding enforcement guides throughout the course of its history, its principal means for advancing its mission has been enforcement, not regulation. As the FTC explains:

The basic statute enforced by the FTC, Section 5(a) of the FTC Act, empowers the agency to investigate and prevent unfair methods of competition, and unfair or deceptive acts or practices affecting commerce. This creates the Agency’s two primary missions: protecting competition and protecting consumers. The statute gives the FTC authority to seek relief for consumers, including injunctions and restitution, and in some instances to seek civil penalties from wrongdoers. The FTC has the ability to implement trade regulation rules defining with specificity acts or practices that are unfair or deceptive and the Commission can publish reports and make legislative recommendations to Congress about issues affecting the economy. The Commission enforces various antitrust laws under Section 5(a) of the FTC Act as well as the Clayton Act. The FTC monitors all its orders to ensure compliance. 

FTC rules may be divided into three categories: section 6(g) rules, section 18 rules, and rules promulgated pursuant to statutes other than the FTC Act.

2.      Section 6(g) Rules

Section 6(g) of the original Federal Trade Commission Act (“section 6(g)”) is a very short provision that empowers the FTC to “classify corporations” and also authorizes the Commission “to make rules and regulations for the purpose of carrying out the provisions of this subchapter [embodying the statutory authorities bestowed on the FTC].” Section 6(g) is a very tiny part of section 6 of the FTC Act, which delineates FTC powers to conduct investigations, issue reports, make criminal referrals to the Justice Department, cooperate with foreign enforcers, and expend funds for meetings with foreign officials and law enforcement groups. Section 6(g) primarily has been used by the Commission to enact procedural rules governing investigations and internal processes, not substantive rules dealing with business conduct.

Section 6(g) substantive rules today are subject to the informal rulemaking requirements of section 553 of the Administrative Procedure Act (APA), which apply to the vast majority of federal agency rulemaking proceedings. Informal rulemaking involves publication of a proposed rule, followed by public comment (at least 30 days), followed by publication of a final rule.

In 1971, the FTC enacted a section 6(g) rule stating that it was both an “unfair method of competition” and an “unfair act or practice” for refiners or others who sell to gasoline retailers “to fail to disclose clearly and conspicuously in a permanent manner on the pumps the minimum octane number or numbers of the motor gasoline being dispensed.” In 1973, in the National Petroleum Refiners case, the U.S. Court of Appeals for the District of Columbia Circuit upheld the FTC’s authority to promulgate this and other binding substantive rules. The court rejected the argument that section 6(g) authorized only nonsubstantive regulations regarding the FTC’s nonadjudicatory, investigative, and informative functions, spelled out elsewhere in section 6. Notably, however, the FTC has not enacted any 6(g) competition rules in the nearly fifty years since the National Petroleum Refiners case was decided.

3.      Section 18 Rules

In 1975, Congress granted the FTC specific consumer protection rulemaking authority (authorizing enactment of trade regulation rules dealing with unfair or deceptive acts or practices) through section 202 of the Magnuson-Moss Warranty Act, which added section 18 to the Federal Trade Commission Act (“section 18”). Section 18 imposes hearing-type requirements that are not found in APA informal rulemakings. As the FTC explains, once the Commission has promulgated a trade regulation rule, anyone who violates the rule “with actual knowledge or knowledge fairly implied on the basis of objective circumstances that such act is unfair or deceptive and is prohibited by such rule” is liable for civil penalties for each violation. 

Section 18 consumer protection rulemakings impose adjudicatory-type hearings and other specific requirements on the FTC, unlike more flexible section 6(g) APA informal rulemakings. However, as noted above, the FTC can obtain civil penalties for knowing violation of Magnuson-Moss rules, something it cannot do if 6(g) rules are violated. Since 1975, the FTC has promulgated only seven Magnuson-Moss rules, reflecting the “slow and cumbersome” nature of those rulemakings, according to some scholarly critics. The FTC has nevertheless issued a wide variety of substantive consumer protection rules in recent decades under various special statutes directed at specific consumer protection problems identified by Congress.

4.      Non-FTC Act Rules

Over the years, Congress has passed a variety of statutes empowering the FTC to address particularized problems, through FTC enforcement and rulemaking initiatives, as appropriate. There are 82 such statutes currently in force, and only 16 deal solely with competition matters. FTC rules adopted pursuant to the many specialized consumer protection statutes (most of which were adopted in recent decades) largely obviated the need for and displaced section 6(g) consumer protection rulemaking initiatives of the 1960s.

The specialized competition laws (“special competition statutes”) involve such targeted substantive and procedural topics as, for example, fisheries conservation and management, litigation settlements between patented and generic drug makers, research and production joint ventures, outer continental shelf oil and gas leases, export trade associations, and international antitrust cooperation. Any FTC rules enacted under those laws inevitably are closely tied to and limited by the specific grant of congressional authority. Only one of the competition-related statutory grants, the Hart-Scott-Rodino Act of 1976 (HSR), involves rulemaking that is highly significant to antitrust enforcement across the board. Those rules, which were first promulgated in the 1970s and have been tweaked over time, directly carry out the statutory mandate and yield finely honed guidance to the private sector (similar to the detailed guidance that non-antitrust primarily regulatory agencies typically provide). In marked contrast to HSR, the section 6(g) reference to rulemaking is an extremely short and general provision that provides no framework to guide the development of possible substantive competition rules.

5.      Legal Impediments to FTC Competition Rulemaking

In order to promulgate new FTC competition rules falling outside the ambit of specialized statutes, the FTC would have to rely primarily on section 6(g). Such rulemaking endeavors would face at least five legal doctrinal obstacles.

  • First, the “nondelegation doctrine” suggests that, under section 6(g), Congress did not confer on the FTC the specific statutory authority required to issue rules that address particular competitive practices.
  • Second, principles of statutory construction strongly indicate that the FTC’s general statutory provision dealing with rulemaking refers to procedural rules of organization, not substantive rules bearing on competition.
  • Third, even assuming that proposed competition rules survived these initial hurdles, principles of administrative law would raise the risk that competition rules would be struck down as “arbitrary and capricious.”
  • Fourth, there is a substantial possibility that courts would not defer to the FTC’s construction through rulemaking of its “unfair methods of competition” as authorizing the condemnation of specific competitive practices.
  • Fifth, any attempt by the FTC to rely on its more specific section 18 rulemaking powers to reach anticompetitive practices would be cabined by the limited statutory scope of those powers.

Considering these obstacles collectively, it is exceptionally unlikely that FTC competition rules will survive legal challenge.

A. Non-Delegation Doctrine

Although the non-delegation doctrine has been largely moribund over the last century, it may nevertheless be revived in an appropriate case, as five current Supreme Court Justices have spoken favorably of it in recent years. Moreover, although it seldom has been applied directly to strike down regulatory schemes, it has sometimes led the Supreme Court to narrowly construe the scope of a statutory delegation to strike down sweeping agency actions without invoking the doctrine. What’s more, the Supreme Court has held that a statutory delegation must be supported by an “intelligible principle” guiding its application. As such, The Court could well decide it appropriate to strike down far-reaching FTC rules that are based on broad and novel constructions of the vague yet expansive term “unfair methods of competition.”

B. Principles of Statutory Construction

The structure of the Federal Trade Commission Act indicates that the rulemaking referenced in section 6(g) is best understood as an aid to FTC processes and investigations, not a source of substantive policymaking. Although the National Petroleum Refiners decision rejected such a reading, that ruling came at a time of significant judicial deference to federal agency activism and appears dated. Furthermore, the Supreme Court’s April 2021 decision in AMG Capital Management v. FTC embodies a reluctance to read general non-specific language as conferring broad substantive powers on the FTC. This interpretive approach is in line with other Supreme Court case law that rejects finding “elephants in mouseholes.”

C. Administrative Law Principles Precluding “Arbitrary and Capricious” Agency Action

The FTC would have to provide a sufficient basis to justify a determination that a particular practice barred by rule is inevitably anticompetitive. Doing so might prove difficult, because it would be in tension with the traditional “rule of reason” analysis of antitrust litigation, which evaluates particular practices on a fact-specific, case-by-case basis. If a reviewing court were to find that the FTC rulemaking record did not sufficiently take into account potential procompetitive manifestations of a condemned practice, for example, it might decide that the rule is arbitrary and strike it down. This risk would appear to be substantial, particularly given the lack of a preexisting competition rulemaking tradition that could help guide rulemaking review by the courts. Relatedly, a novel FTC construction of “unfair methods of competition” through rulemaking that was at odds with antitrust case law could raise due process of law objections.

D. Court Deference to FTC Interpretations of “Unfair Methods of Competition” Is Unlikely

The courts would be unlikely to accord “Chevron deference” to FTC Section 6(g) rules that construed the term “unfair methods of competition” to apply to specific competitive practices. The Supreme Court has avoided applying agency regulatory interpretations to various “major questions” of great “economic and political significance” (such as, for example, disputes involving the Affordable Care Act and the application of food and drug law to tobacco products)—either by determining from the start not to apply Chevron or by finding Chevron applies but electing nevertheless to reject agency statutory constructions.  Given this background, the Supreme Court could readily determine that whether a broad array of hitherto unregulated commercial practices should be newly regulated on grounds of “unfairness” poses a “major question” for Congress that is beyond the scope of the FTC’s authority, rendering Chevron inapplicable. In addition, because “unfair methods of competition” rules could implicate the substantive content of antitrust law, such rules could interfere with Justice Department antitrust prosecutorial principles. This would solidify the conclusion that FTC competition rules implicate “major questions” of antitrust policy and interagency jurisdiction that should be left to Congress, and are outside the purview of the FTC’s interpretive authority.

E. Section 18 Rulemakings and Anticompetitive Practices

Given the substantial legal risks that confront section 6(g) rulemaking, the FTC might turn to section 18 (“unfair or deceptive acts or practices”) as a possible vehicle for the promulgation of new competition rules. The scope of possible application of section 18 to competition questions is, however, quite limited at best (see here). A “deceptive act or practice,” which the FTC defines as a “misrepresentation, omission, or other practice” that misleads consumers, is naturally directed to concerns about harm directly imposed on consumers by a business practice. It does not, however, fit naturally into concerns about business behavior that harms the process of competition. As such, a “deception” theory would not appear to be a good vehicle for a competition rule. Section 5(n) of the FTC Act, required that an “unfair act or practice” must impose measurable harm on consumers who acted reasonably. Second, such harm must be greater than any countervailing benefits to competition or consumers—in short, the conduct must on net be harmful, that is, it must fail a cost-benefit test. The FTC would have a very hard time jumping through the Section 18 evidentiary hoops to show that particular business practices met this test. In addition, courts might well conclude that Congress Section 18 was not designed by Congress to apply to “unfair method of competition.” Finally, two of the five current FTC Commissioners have criticized recent FTC revisions of the Commission’s rules of practice (see here) as undermining the goals of participation and transparency that Congress sought to advance when it enacted and amended Section 18. This could make judges even more reluctant to hold that Section 18 authorized novel competition rulemaking powers.

III. Conclusion

The current FTC leadership may be expected (at least initially) to proceed with competition rulemaking efforts, given Chair Khan’s strong support for this initiative. Rulemaking, of course, requires the gathering of evidence and the taking of testimony. Moreover, new competition rules imposing limitations on specified business practices or industry sectors would likely be appealed to U.S. courts of appeal. Eventually, one would expect the Supreme Court to step in to review the legal status of a particular competition rule and, most likely, the legality of FTC competition rulemaking itself. All of this would entail a substantial commitment of scarce public and private resources and take a considerable amount of time—the current FTC leadership likely would be long gone before a final legal resolution by the Supreme Court. Yet the end result would be in all likelihood a ruling that the FTC lacked substantive competition rulemaking authority. In short, the FTC rulemaking saga would almost surely entail pure waste, to the detriment of consumer welfare, producer welfare, and sound government.

In Antitrust & Competition, FTC UMC Rulemaking, Symposia, Truth on the Market , , , , ,
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Welcome to the TOTM Symposium on FTC UMC Rulemaking

Gus Hurwitz —  25 April 2022

[This post is the first in our FTC UMC Rulemaking symposium. You can find other posts at the symposium page here. Truth on the Market also invites academics, practitioners, and other antitrust/regulation commentators to send us 1500-4000 word responses for potential inclusion in the symposium.]

There is widespread interest in the potential tools that the Biden administration’s Federal Trade Commission (FTC) may use to address a range of competition-related and competition-adjacent concerns. A focal point for this interest is the potential that the FTC may use its broad authority to regulate unfair methods of competition (UMC) under Section 5 of the FTC Act to make rules that address a wide range of conduct. This “potential” is expected to become a “likelihood” with confirmation of Alvaro Bedoya, a third Democratic commissioner, expected to occur any day.

This post marks the start of a Truth on the Market symposium that brings together academics, practitioners, and other commentators to discuss issues relating to potential UMC-related rulemaking. Contributions to this symposium will cover a range of topics, including:

  • Constitutional and administrative-law limits on UMC rulemaking: does such rulemaking potentially present “major question” or delegation issues, or other issues under the Administrative Procedure Act (APA)? If so, what is the scope of permissible rulemaking?
  • Substantive issues in UMC rulemaking: costs and benefits to be considered in developing rules, prudential concerns, and similar concerns.
  • Using UMC to address competition-adjacent issues: consideration of how or whether the FTC can use its UMC authority to address firm conduct that is governed by other statutory or regulatory regimes. For instance, firms using copyright law and the Digital Millennium Copyright Act (DMCA) to limit competitors’ ability to alter or repair products, or labor or entry issues that might be governed by licensure or similar laws.

Timing and Structure of the Symposium

Starting tomorrow, one or two contributions to this symposium will be posted each morning. During the first two weeks of the symposium, we will generally try to group posts on similar topics together. When multiple contributions are posted on the same day, they will generally be implicitly or explicitly in dialogue with each other. The first week’s contributions will generally focus on constitutional and administrative law issues relating to UMC rulemaking, while the second week’s contributions will focus on more specific substantive topics. 

Readers are encouraged to engage with these posts through comments. In addition, academics, practitioners, and other antitrust and regulatory commentators are invited to submit additional contributions for inclusion in this symposium. Such contributions may include responses to posts published by others or newly developed ideas. Interested authors should submit pieces for consideration to Gus Hurwitz and Keith Fierro Benson.

This symposium will run through at least Friday, May 6. We do not, however, anticipate, ending or closing it at that time. To the contrary, it is very likely that topics relating to FTC UMC rulemaking will continue to be timely and of interest to our community—we anticipate keeping the symposium running for the foreseeable future, and welcome submissions on an ongoing basis. Readers interested in these topics are encouraged to check in regularly for new posts, including by following the symposium page, the FTC UMC Rulemaking tag, or by subscribing to Truth on the Market for notifications of new posts.

In Administrative Law, Antitrust & Competition, Copyright, Federal Trade Commission, FTC UMC Rulemaking, Regulation, Section 5, Symposia, Truth on the Market , , , , , ,
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Efficient Cartels and the Public Interest Defence – Do They Exist?

Cento Veljanovski —  30 December 2019

[TOTM: The following is the seventh 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 Cento Veljanoski, Managing Partner, Case Associates and IEA Fellow in Law and Economics, Institute of Economic Affairs.

The concept of a “good” or “efficient” cartel is generally regarded by competition authorities as an oxymoron. A cartel is seen as the worst type of antitrust violation and one that warrants zero tolerance. Agreements between competitors to raise prices and share the market are assumed unambiguously to reduce economic welfare. As such, even if these agreements are ineffective, the law should come down hard on attempts to rig prices. In this post, I argue that this view goes too far and that even ‘hard core’ cartels that lower output and increase prices can be efficient, and pro-competitive. I discuss three examples of where hard core cartels may be efficient.

Resuscitating the efficient cartel

Basic economic theory tells us that coordination can be efficient in many instances, and this is accepted in law, e.g. joint ventures and agreements on industry standards.  But where competitors agree on prices and the volume of sales – so called “hard core” cartels – there is intolerance.

Nonetheless there is a recognition that cartel-like arrangements can promote efficiency. For example, Article 101(3)TFEU exempts anticompetitive agreements or practices whose economic and/or technical benefits outweigh their restrictions on competition, provided a fair share of those benefits are passed-on to consumers. However, this so-called ‘efficiency defence’ is highly unlikely to be accepted for hard core cartels nor are the wider economic or non-economic considerations. But as will be shown, there are classes of hard core cartels and restrictive agreement which, while they reduce output, raise prices and foreclose entry, are nonetheless efficient and not anticompetitive.

Destructive competition and the empty core

The claim that cartels have beneficial effects precedes US antitrust law. Trusts were justified as necessary to prevent ‘ruinous’ or ‘destructive’ competition in industries with high fixed costs subject to frequent ‘price wars’. This was the unsuccessful defence in Trans-Missouri (166 U.S. 290 (1897), where 18 US railroad companies formed a trust to set their rates, arguing that absent their agreement there would be ruinous competition, eventual monopoly and even higher prices.  Since then industries such as steel, cement, paper, shipping and airlines have at various times claimed that competition was unsustainable and wasteful.

These seem patently self-serving claims.  But the idea that some industries are unstable without a competitive equilibrium has long been appreciated by economists.  Nearly a century after Trans-Missouri, economist Lester Telser (1996) refreshed the idea that cooperative arrangements among firms in some industries were not attempts to impose monopoly prices but a response to their inherent structural inefficiency. This was based on the concept of an ‘empty core’. While Tesler’s article uses some hideously dense mathematical game theory, the idea is simple to state.  A market is said to have a ‘core’ if there is a set of transactions between buyers and sellers such that there are no other transactions that could make some of the buyers or sellers better off. Such a core will survive in a competitive market if all firms can make zero economic profits. In a market with an empty core no coalition of firms will be able to earn zero profits; some firms will be able to earn a surplus and thereby attract entry, but because the core is empty the new entry will inflict losses on all firms. When firms exit due to their losses, the remaining firms again earn economic profits, and attract entry. There are no competitive long-run stable equilibria for these industries.

The literature suggests that an industry is likely to have an empty core: (1) where firms have fixed production capacities; (2) that are large relative to demand; (3) there are scale economies in production; (4) incremental costs are low, (5) demand is uncertain and fluctuates markedly; and (6) output cannot be stored cheaply. Industries which have frequently been cartelised share many of these features (see above).

In the 1980s several academic studies applied empty core theory to antitrust. Brittlingmayer (1982) claimed that the US iron pipe industry had an empty core and that the famous Addyston Pipe case was thus wrongly decided, and responsible for mergers in the industry.

Sjostrom (1989) and others have argued that conference lines were not attempts to overcharge shippers but to counteract an empty core that led to volatile market shares and freight rates due to excess capacity and fixed schedules.  This type of analysis formed the basis for their exemption from competition laws. Since the nineteenth century, liner conferences had been permitted to fix prices and regulate capacity on routes between Europe, and North America and the Far East. The EU block exemption (Council Regulation 4056/86) allowed them to set common freight rates, to take joint decisions on the limitation of supply and to coordinate timetables. However the justifications for these exemptions has worn thin. As from October 2008, these EU exemptions were removed based on scepticism that liner shipping is an empty core industry particularly because, with the rise of modern leasing and chartering techniques to manage capacity, the addition of shipping capacity is no longer a lumpy process. 

While the empty core argument may have merit, it is highly unlikely to persuade European competition authorities, and the experience with legal cartels that have been allowed in order to rationalise production and costs has not been good.

Where there are environmental problems

Cartels in industries with significant environmental problems – which produce economic ‘bads’ rather than goods – can have beneficial effects. Restricting the output of an economic bad is good. Take an extreme example. When most people hear the word cartel, they think of a Colombian drugs cartel. . A drugs cartel reduces drug trafficking to keep its profits high. Competition in the supply would  lead to an over-supply of cheaper drugs, and a cartel charging higher prices and lower output is superior to a competitive outcome.

The same logic applies also to industries in which bads, such as pollution, are a by-product of otherwise legitimate and productive activities.  An industry which generates pollution does not take the full costs of its activities into account, and hence output is over-expanded and prices too low. Economic efficiency requires a reduction in the harmful activities and the associated output.  It also requires the product’s price to increase to incorporate the pollution costs. A cartel that raises prices can move such an industry’s output and harm closer to the efficient level, although this would not be in response to higher pollution-inclusive costs – which makes this a second-best solution.

There has been a fleeting recognition that competition in the presence of external costs is not efficient and that restricting output does not necessarily distort competition. In 1999, the European Commission almost uniquely exempted a cartel-like restrictive agreement among producers and importers of washing machines under Article 101(3)TFEU (Case IV.F.1/36.718. CECED).  The agreement not to produce or import the least energy efficient washing machines representing 10-11% of then EC sales would adversely affect competition and increase prices since the most polluting machines were the least expensive ones.

The Commission has since rowed back from its broad application of Article 101(3)TFEU in CECED. In its 2001 Guidelines on Horizontal Agreements it devoted a chapter to environmental agreements which it removed from its revised 2011 Guidelines (para 329) which treated CECED as a standardisation agreement.

Common property industries

A more clear-cut case of an efficient cartel is where firms compete over a common property resource for which property rights are ill-defined or absent, such as is often the case for fisheries. In these industries, competition leads to excessive entry, over-exploitation, and the dissipation of the economic returns (rents).  A cartel – a ‘club’ of fisherman – having sole control of the fishing grounds would unambiguously increase efficiency even though it increased prices, reduced production and foreclosed entry. 

The benefits of such cartels have not been accepted in law by competition authorities. The Dutch competition authority’s (MNa Case No. 2269/330) and the European Commission’s (Case COMP/39633 Shrimps) shrimps decisions in 2013-14 imposed fines on Dutch shrimp fleet and wholesalers’ organisations for agreeing quotas and prices. One study showed that the Dutch agreement reduced the fishing catch by at least 12%-16% during the cartel period and increased wholesale prices. However, this output reduction and increase in prices was not welfare-reducing if the competitive outcome resulted over-fishing. This and subsequent cases have resulted in a vigorous policy debate in the Netherlands over the use of Article 101(3)TFEU to take the wider benefits into account (ACM Position Paper 2014).

Sustainability and Article 101(3)

There is a growing debate over the conflict between and antitrust and other policy objectives, such as sustainability and industrial policy. One strand of this debate focuses on expanding the efficiency defence under Article 101(3)TFEU.  As currently framed, it has not enabled the reduction in pollution costs or resource over-exploitation to exempt restrictive agreements which distort competition even though these agreements may be efficient. In the pollution case the benefits are generalised ones to third parties not consumers, which are difficult to quantify. In the fisheries case, the short-term welfare of existing consumers is unambiguously reduced as they pay higher prices for less fish; the benefits are long term (more sustainable fish stock which can continue to be consumed) and may not be realized at all by current consumers but rather will accrue to future generations.

To accommodate sustainability concerns and other efficiency factors Article 101(3)TFEU would have to be expanded into a public interest defence based on a wider total welfare objective, not just consumers’ welfare as it is now, which took into account the long-run interest of consumers and third parties potentially affected by a restrictive agreement. This would mark a radical and open-ended expansion of the objectives of European antitrust and the grounds for exemption. It would put sustainability on the same plank as the clamour that industrial policy be taken-into-account by antitrust authorities, which has been firmly resisted so far.  This is not to belittle both the economic and environmental grounds for a public interest defence, it is just to recognise that it is difficult to see how this can be coherently incorporated into Article 101(3)TFEU while at the same time as preserving the integrity and focus of European antitrust.

In Antitrust & Competition, Cartels, Economic Theory, European Union, Exemptions, Intellectual Property, International, International Trade, Patent, The Politicization of Antitrust, Truth on the Market , , , ,
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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.

In Amazon, Antitrust & Competition, Banking, Facebook, Financial Regulation, Google, International Center for Law & Economics, Platforms, The Politicization of Antitrust, Truth on the Market, Tying , ,
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Big Ink vs. Bigger Tech

Ramsi Woodcock —  30 December 2019

[TOTM: The following is the fifth 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 Ramsi Woodcock, Assistant Professor, College of Law, and Assistant Professor, Department of Management at Gatton College of Business & Economics, University of Kentucky.

When in 2011 Paul Krugman attacked the press for bending over backwards to give equal billing to conservative experts on social security, even though the conservatives were plainly wrong, I celebrated. Social security isn’t the biggest part of the government’s budget, and calls to privatize it in order to save the country from bankruptcy were blatant fear mongering. Why should the press report those calls with a neutrality that could mislead readers into thinking the position reasonable?

Journalists’ ethic of balanced reporting looked, at the time, like gross negligence at best, and deceit at worst. But lost in the pathos of the moment was the rationale behind that ethic, which is not so much to ensure that the truth gets into print as to prevent the press from making policy. For if journalists do not practice balance, then they ultimately decide the angle to take.

And journalists, like the rest of us, will choose their own.

The dark underbelly of the engaged journalism unleashed by progressives like Krugman has nowhere been more starkly exposed than in the unfolding assault of journalists, operating as a special interest, on Google, Facebook, and Amazon, three companies that writers believe have decimated their earnings over the past decade.

In story after story, journalists have manufactured an antitrust movement aimed at breaking up these companies, even though virtually no expert in antitrust law or economics, on either the right or the left, can find an antitrust case against them, and virtually no expert would place any of these three companies at the top of the genuinely long list of monopolies in America that are due for an antitrust reckoning.

Bitter ledes

Headlines alone tell the story. We have: “What Happens After Amazon’s Domination Is Complete? Its Bookstore Offers Clues”; “Be Afraid, Jeff Bezos, Be Very Afraid”; “How Should Big Tech Be Reined In? Here Are 4 Prominent Ideas”;  “The Case Against Google”; and “Powerful Coalition Pushes Back on Anti-Tech Fervor.”

My favorite is: “It’s Time to Break Up Facebook.” Unlike the others, it belongs to an Op-Ed, so a bias is appropriate. Not appropriate, however, is the howler, contained in the article’s body, that “a host of legal scholars like Lina Khan, Barry Lynn and Ganesh Sitaraman are plotting a way forward” toward breakup. Lina Khan has never held an academic appointment. Barry Lynn does not even have a law degree. And Ganesh Sitaraman’s academic specialty is constitutional law, not antitrust. But editors let it through anyway.

As this unguarded moment shows, the press has treated these and other members of a small network of activists and legal scholars who operate on antitrust’s fringes as representative of scholarly sentiment regarding antitrust action. The only real antitrust scholar among them is Tim Wu, who, when you look closely at his public statements, has actually gone no further than to call for Facebook to unwind its acquisitions of Instagram and WhatsApp.

In more sober moments, the press has acknowledged that the law does not support antitrust attacks on the tech giants. But instead of helping readers to understand why, the press instead presents this as a failure of the law. “To Take Down Big Tech,” read one headline in The New York Times, “They First Need to Reinvent the Law.” I have documented further instances of unbalanced reporting here.

This is not to say that we don’t need more antitrust in America. Herbert Hovenkamp, who the New York Times once recognized as  “the dean of American antitrust law,” but has since downgraded to “an antitrust expert” after he came out against the breakup movement, has advocated stronger monopsony enforcement across labor markets. Einer Elhauge at Harvard is pushing to prevent index funds from inadvertently generating oligopolies in markets ranging from airlines to pharmacies. NYU economist Thomas Philippon has called for deconcentration of banking. Yale’s Fiona Morton has pointed to rising markups across the economy as a sign of lax antitrust enforcement. Jonathan Baker has argued with great sophistication for more antitrust enforcement in general.

But no serious antitrust scholar has traced America’s concentration problem to the tech giants.

Advertising monopolies old and new

So why does the press have an axe to grind with the tech giants? The answer lies in the creative destruction wrought by Amazon on the publishing industry, and Google and Facebook upon the newspaper industry.

Newspapers were probably the most durable monopolies of the 20th century, so lucrative that Warren Buffett famously picked them as his preferred example of businesses with “moats” around them. But that wasn’t because readers were willing to pay top dollar for newspapers’ reporting. Instead, that was because, incongruously for organizations dedicated to exposing propaganda of all forms on their front pages, newspapers have long striven to fill every other available inch of newsprint with that particular kind of corporate propaganda known as commercial advertising.

It was a lucrative arrangement. Newspapers exhibit powerful network effects, meaning that the more people read a paper the more advertisers want to advertise in it. As a result, many American cities came to have but one major newspaper monopolizing the local advertising market.

One such local paper, the Lorain Journal of Lorain, Ohio, sparked a case that has since become part of the standard antitrust curriculum in law schools. The paper tried to leverage its monopoly to destroy a local radio station that was competing for its advertising business. The Supreme Court affirmed liability for monopolization.

In the event, neither radio nor television ultimately undermined newspapers’ advertising monopolies. But the internet is different. Radio, television, and newspaper advertising can coexist, because they can target only groups, and often not the same ones, minimizing competition between them. The internet, by contrast, reaches individuals, making it strictly superior to group-based advertising. The internet also lets at least some firms target virtually all individuals in the country, allowing those firms to compete with all comers.

You might think that newspapers, which quickly became an important web destination, were perfectly positioned to exploit the new functionality. But being a destination turned out to be a problem. Consumers reveal far more valuable information about themselves to web gateways, like search and social media, than to particular destinations, like newspaper websites. But consumer data is the key to targeted advertising.

That gave Google and Facebook a competitive advantage, and because these companies also enjoy network effects—search and social media get better the more people use them—they inherited the newspapers’ old advertising monopolies.

That was a catastrophe for journalists, whose earnings and employment prospects plummeted. It was also a catastrophe for the public, because newspapers have a tradition of plowing their monopoly profits into investigative journalism that protects democracy, whereas Google and Facebook have instead invested their profits in new technologies like self-driving cars and cryptocurrencies.

The catastrophe of countervailing power

Amazon has found itself in journalists’ crosshairs for disrupting another industry that feeds writers: publishing. Book distribution was Amazon’s first big market, and Amazon won it, driving most brick and mortar booksellers to bankruptcy. Publishing, long dominated by a few big houses that used their power to extract high wholesale prices from booksellers, some of the profit from which they passed on to authors as royalties, now faced a distribution industry that was even more concentrated and powerful than was publishing. The Department of Justice stamped out a desperate attempt by publishers to cartelize in response, and profits, and author royalties, have continued to fall.

Journalists, of course, are writers, and the disruption of publishing, taken together with the disruption of news, have left journalists with the impression that they have nowhere to turn to escape the new economy.

The abuse of antitrust

Except antitrust.

Unschooled in the fine points of antitrust policy, it seems obvious to them that the Armageddon in newspapers and publishing is a problem of monopoly and that antitrust enforcers should do something about it.  

Only it isn’t and they shouldn’t. The courts have gone to great lengths over the past 130 years to distinguish between doing harm to competition, which is prohibited by the antitrust laws, and doing harm to competitors, which is not.

Disrupting markets by introducing new technologies that make products better is no antitrust violation, even if doing so does drive legacy firms into bankruptcy, and throws their employees out of work and into the streets. Because disruption is really the only thing capitalism has going for it. Disruption is the mechanism by which market economies generate technological advances and improve living standards in the long run. The antitrust laws are not there to preserve old monopolies and oligopolies such as those long enjoyed by newspapers and publishers.

In fact, by tearing down barriers to market entry, the antitrust laws strive to do the opposite: to speed the destruction and replacement of legacy monopolies with new and more innovative ones.

That’s why the entire antitrust establishment has stayed on the sidelines regarding the tech fight. It’s hard to think of three companies that have more obviously risen to prominence over the past generation by disrupting markets using superior technologies than Amazon, Google, and Facebook. It may be possible to find an anticompetitive practice here or there—I certainly have—but no serious antitrust scholar thinks the heart of these firms’ continued dominance lies other than in their technical savvy. The nuclear option of breaking up these firms just makes no sense.

Indeed, the disruption inflicted by these firms on newspapers and publishing is a measure of the extent to which these firms have improved book distribution and advertising, just as the vast disruption created by the industrial revolution was a symptom of the extraordinary technological advances of that period. Few people, and not even Karl Marx, thought that the solution to those disruptions lay with Ned Ludd. The solution to the disruption wrought by Google, Amazon, and Facebook today similarly does not lie in using the antitrust laws to smash the machines.

Governments eventually learned to address the disruption created by the original industrial revolution not by breaking up the big firms that brought that revolution about, but by using tax and transfer, and rate regulation, to ensure that the winners share their gains with the losers. However the press’s campaign turns out, rate regulation, not antitrust, is ultimately the approach that government will take to Amazon, Google, and Facebook if these companies continue to grow in power. Because we don’t have to decide between social justice and technological advance. We can have both. And voters will demand it.

The anti-progress wing of the progressive movement

Alas, smashing the machines is precisely what journalists and their supporters are demanding in calling for the breakup of Amazon, Google, and Facebook. Zephyr Teachout, for example, recently told an audience at Columbia Law School that she would ban targeted advertising except for newspapers. That would restore newspapers’ old advertising monopolies, but also make targeted advertising less effective, for the same reason that Google and Facebook are the preferred choice of advertisers today. (Of course, making advertising more effective might not be a good thing. More on this below.)

This contempt for technological advance has been coupled with a broader anti-intellectualism, best captured by an extraordinary remark made by Barry Lynn, director of the pro-breakup Open Markets Institute, and sometime advocate for the Author’s Guild. The Times quotes him saying that because the antitrust laws once contained a presumption against mergers to market shares in excess of 25%, all policymakers have to do to get antitrust right is “be able to count to four. We don’t need economists to help us count to four.”

But size really is not a good measure of monopoly power. Ask Nokia, which controlled more than half the market for cell phones in 2007, on the eve of Apple’s introduction of the iPhone, but saw its share fall almost to zero by 2012. Or Walmart, the nation’s largest retailer and a monopolist in many smaller retail markets, which nevertheless saw its stock fall after Amazon announced one-day shipping.

Journalists themselves acknowledge that size does not always translate into power when they wring their hands about the Amazon-driven financial troubles of large retailers like Macy’s. Determining whether a market lacks competition really does require more than counting the number of big firms in the market.

I keep waiting for a devastating critique of arguments that Amazon operates in highly competitive markets to emerge from the big tech breakup movement. But that’s impossible for a movement that rejects economics as a corporate plot. Indeed, even an economist as pro-antitrust as Thomas Philippon, who advocates a return to antitrust’s mid-20th century golden age of massive breakups of firms like Alcoa and AT&T, affirms in a new book that American retail is actually a bright spot in an otherwise concentrated economy.

But you won’t find journalists highlighting that. The headline of a Times column promoting Philippon’s book? “Big Business Is Overcharging you $5000 a Year.” I tend to agree. But given all the anti-tech fervor in the press, Philippon’s chapter on why the tech giants are probably not an antitrust problem ought to get a mention somewhere in the column. It doesn’t.

John Maynard Keynes famously observed that “though no one will believe it—economics is a technical and difficult subject.” So too antitrust. A failure to appreciate the field’s technical difficulty is manifest also in Democratic presidential candidate Elizabeth Warren’s antitrust proposals, which were heavily influenced by breakup advocates.

Warren has argued that no large firm should be able to compete on its own platforms, not seeming to realize that doing business means competing on your own platforms. To show up to work in the morning in your own office space is to compete on a platform, your office, from which you exclude competitors. The rule that large firms (defined by Warren as those with more than $25 billion in revenues) cannot compete on their own platforms would just make doing large amounts of business illegal, a result that Warren no doubt does not desire.

The power of the press

The press’s campaign against Amazon, Google, and Facebook is working. Because while they may not be as well financed as Amazon, Google, or Facebook, writers can offer their friends something more valuable than money: publicity.

That appears to have induced a slew of politicians, including both Senator Warren on the left and Senator Josh Hawley on the right, to pander to breakup advocates. The House antitrust investigation into the tech giants, led by a congressman who is simultaneously championing legislation advocated by the News Media Alliance, a newspaper trade group, to give newspapers an exemption from the antitrust laws, may also have similar roots. So too the investigations announced by dozens of elected state attorneys general.

The investigations recently opened by the FTC and Department of Justice may signal no more than a desire not to look idle while so many others act. Which is why the press has the power to turn fiction into reality. Moreover, under the current Administration, the Department of Justice has already undertaken two suspiciously partisan antitrust investigations, and President Trump has made clear his hatred for the liberal bastions that are Amazon, Google and Facebook. The fact that the press has made antitrust action against the tech giants a progressive cause provides convenient cover for the President to take down some enemies.

The future of the news

Rate regulation of Amazon, Google, or Facebook is the likely long-term resolution of concerns about these firms’ power. But that won’t bring back newspapers, which henceforth will always play the loom to Google and Facebook’s textile mills, at least in the advertising market.

Journalists and their defenders, like Teachout, have been pushing to restore newspapers’ old monopolies by government fiat. No doubt that would make existing newspapers, and their staffs, very happy. But what is good for Big News is not necessarily good for journalism in the long run.

The silver lining to the disruption of newspapers’ old advertising monopolies is that it has created an opportunity for newspapers to wean themselves off a funding source that has always made little sense for organizations dedicated to helping Americans make informed, independent decisions, free of the manipulation of others.

For advertising has always had a manipulative function, alongside its function of disseminating product information to consumers. And, as I have argued elsewhere, now that the vast amounts of product information available for free on the internet have made advertising obsolete as a source of product information, manipulation is now advertising’s only real remaining function.

Manipulation causes consumers to buy products they don’t really want, giving firms that advertise a competitive advantage that they don’t deserve. That makes for an antitrust problem, this time with real consequences not just for competitors, but also for technological advance, as manipulative advertising drives dollars away from superior products toward advertised products, and away from investment in innovation and toward investment in consumer seduction.

The solution is to ban all advertising, targeted or not, rather than to give newspapers an advertising monopoly. And to give journalism the state subsidies that, like all public goods, from defense to highways, are journalism’s genuine due. The BBC provides a model of how that can be done without fear of government influence.

Indeed, Teachout’s proposed newspaper advertising monopoly is itself just a government subsidy, but a subsidy extracted through an advertising medium that harms consumers. Direct government subsidization achieves the same result, without the collateral consumer harm.

The press’s brazen advocacy of antitrust action against the tech giants, without making clear how much the press itself has to gain from that action, and the utter absence of any expert support for this approach, represents an abdication by the press of its responsibility to create an informed citizenry that is every bit as profound as the press’s lapses on social security a decade ago.

I’m glad we still have social security. But I’m also starting to miss balanced journalism.

1/3/2020: Editor’s note – this post was edited for clarification and minor copy edits.

In Amazon, Antitrust & Competition, Apple, Banking, Constitutional Law, Corporate & Securities Law, Facebook, Financial Regulation, Google, Justice Department, Platforms, The Politicization of Antitrust, Truth on the Market , , , , , , , ,
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Competition Law as a Swiss Army Knife (Move Fast and Break Things?)

Valentin Mircea —  30 December 2019

[TOTM: The following is the fourth 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 Valentin Mircea, a Senior Partner at Mircea and Partners Law Firm, Bucharest, Romania.

The enforcement of competition rules in the European Union is at historic heights. Competition enforcers at the European Commission seem to think that they have reached a point of perfect equilibrium, or perfection in enforcement. “Everything we do is right,” they seem to say, because for decades no significant competition decision by the Commission has been annulled on substance. Meanwhile, the objectives of EU competition law multiply continuously, as DG Competition assumes more and more public policy objectives. Indeed, so wide is DG Competition’s remit that it has become a kind of government in itself, charged with many areas and facing several problems looking for a cure.

The consumer welfare standard is merely affirmed and rarely pursued in the enforcement of the EU competition rules, where even the abuse of dominance tends to be considered as a per se infringement, at least until the European Court of Justice had its say in Intel. It helps that this standard has been always of a secondary importance in the European Union, where the objective of market integration prevailed over time.

Now other issues are catching the eye of the European Commission and the easiest way to handle things such as the increasing power of the technology companies was to make use of the toolkit of the EU competition enforcement.  A technology giant such as Google has already been hit three times with significant fines; but beyond the transient glory of these decisions, nothing significant happened in the market, to other companies or to consumers. Or it did? I’m not sure and nobody seems to check or even care. But the impetus in investigating and applying fines on the technology companies is unshaken — and is likely to remain so at least until the European Court of Justice has its say in a new roster of cases, which will not happen very soon.

The EU competition rules look both over- and under-enforced. This seeming paradox is explained by the formalistic approach of the European Commission and its willingness to serve political purposes, often the result of lobbying from various industries.  In the European Union, competition enforcement increasingly resembles Swiss Army knife; it is good for quick fixes of various problems, while not solving entirely any of them. 

The pursuit of political goals is not necessarily bad in itself; it seems obvious that competition enforcers should listen to the worries of the societies in which they live. Once objectives such as welfare seem to have been attained, it is thus not entirely surprising that enforcement should move towards fixing other societal problems. Take the case of the antitrust laws in the United States, the enactment of which was not determined by an overwhelming concern for consumer welfare or economic efficiency but by powerful lobbies that convinced Congress to act as a referee for their long-lasting disputes with different industries.  In spite of this not-so-glorious origin, the resultant antitrust rules have generated many benefits throughout the world and are an essential part of the efforts to keep markets competitive and ensure a level-playing field. So, why worry that the European Commission – and, more recently, even certain national competition authorities (such as Germany) – have developed a tendency to use powerful competition rules to make order in other areas, where the public opinion, irrespective if it is or not aware of the real causes of concern, requires it?

But in fact, what is happening today is bad and is setting precedents never seen before.  The speed at which new fronts are being opened, where the enforcement of the EU competition rules is an essential part of the weaponry, gives rise to two main areas of concern.

First, EU competition enforcers are generally ill-equipped to address sensitive technical issues that even big experts in the field do not understand properly, such as the use of the Big Data (a vague concept itself, open to various interpretations).  While creating a different set of rules and a new toolkit for the digital economy does not seem to be warranted (debates are still raging on this subject), a dose of humility as to the right level of knowledge required for a proper understanding of the interactions and for proper enforcement, would be most welcome.  Venturing into territories where conventional economics does not apply to its full extent, such as the absence of a price, an essential element of competition, requires a prudent and diligent enforcer to hold back, advance cautiously, and act only where deemed necessary, in an appropriate and proportionate way. So doing is more likely to have an observably beneficial impact, in contrast to the illusory glory of simply confronting the tech giants.

Second, given the limited resources of the European Commission and the national competition authorities in the Member States, exaggerated attention to cases in the technology and digital economy sectors will result in less enforcement in the traditional economy, where cartels and other harmful behaviors still happen, with often more visible negative effects on consumers and the economy. It is no longer fashionable to tackle such cases, as they do not draw the same attention from the media and their outcomes are not likely to create the same fame to the EU competition enforcers.

More recently, in an interesting move, the new European Commission unified the competition and the digital economy portfolios under the astute supervision of commissioner Margrethe Vestager. Beyond the anomaly to put together ex-ante and ex-post powers, the move signals an even larger propensity towards using competition enforcement tools in order to investigate and try to rein in the power of the behemoths of the digital economy.  The change is a powerful political message that EU competition enforcement will be even more prone to cases and decisions motivated by the pursuit of various public policy goals.

I am not saying that the approach taken by the EU competition enforcers has no chance of generating benefits for European consumers. But I am worried that moving ahead with the same determination and with the same limited expertise of the case handlers as has so far been demonstrated, is unlikely to deliver such a beneficial outcome. Moreover, contrary to the stated intention of the policy, it is likely to chill further the prospects for EU technology ventures. 

Last but not least, courageous enforcement of EU competition rules is not a panacea for the unwanted effects on the evidentiary tier, which might put in danger the credibility of this enforcement, its most valuable feature. Indeed, EU competition enforcement may be at its heights but there is no certainty that it won’t fall from there — and falling could be as spectacular as the cases which made the European Commission get to this point. I thus advocate for DG Competition to be wise and humble, to take one step at a time, to acknowledge that markets are generally able to self-correct, and to remember that the history of the economy is little more than a cemetery of forgotten giants that were once assumed to be unshakeable and unstoppable.

In Antitrust & Competition, Cartels, European Union, Facebook, International, Platforms, The Politicization of Antitrust, Truth on the Market , , ,
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Towards a Democratic Antitrust

Zingales and Lancieri —  30 December 2019

[TOTM: The following is the second 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 Luigi Zingales, Robert C. McCormack Distinguished Service Professor of Entrepreneurship and Finance, and Charles M. Harper Faculty Fellow, the University of Chicago Booth School of Business. Director, the George J. Stigler Center for the Study of the Economy and the State, and Filippo Maria Lancieri, Fellow, George J. Stigler Center for the Study of the Economy and the State. JSD Candidate, The University of Chicago Law School.

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.

In Antitrust & Competition, Cartels, Economic Theory, European Union, Exemptions, Federal Trade Commission, Federalism, International, Platforms, The Politicization of Antitrust, Truth on the Market , , , ,
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Does Political Power Follow Economic Power?

Geoffrey Manne & Alec Stapp —  30 December 2019

[TOTM: The following is the third 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 Geoffrey A. Manne, president and founder of the International Center for Law & Economics, and Alec Stapp, Research Fellow at the International Center for Law & Economics.

Source: The Economist

Is there a relationship between concentrated economic power and political power? Do big firms have success influencing politicians and regulators to a degree that smaller firms — or even coalitions of small firms — could only dream of? That seems to be the narrative that some activists, journalists, and scholars are pushing of late. And, to be fair, it makes some intuitive sense (before you look at the data). The biggest firms have the most resources — how could they not have an advantage in the political arena?

The argument that corporate power leads to political power faces at least four significant challenges, however. First, the little empirical research there is does not support the claim. Second, there is almost no relationship between market capitalization (a proxy for economic power) and lobbying expenditures (a, admittedly weak, proxy for political power). Third, the absolute level of spending on lobbying is surprisingly low in the US given the potential benefits from rent-seeking (this is known as the Tullock paradox). Lastly, the proposed remedy for this supposed problem is to make antitrust more political — an intervention that is likely to make the problem worse rather than better (assuming there is a problem to begin with).

The claims that political power follows economic power

The claim that large firms or industry concentration causes political power (and thus that under-enforcement of antitrust laws is a key threat to our democratic system of government) is often repeated, and accepted as a matter of faith. Take, for example, Robert Reich’s March 2019 Senate testimony on “Does America Have a Monopoly Problem?”:

These massive corporations also possess substantial political clout. That’s one reason they’re consolidating: They don’t just seek economic power; they also seek political power.

Antitrust laws were supposed to stop what’s been going on.

* * *

[S]uch large size and gigantic capitalization translate into political power. They allow vast sums to be spent on lobbying, political campaigns, and public persuasion. (emphasis added)

Similarly, in an article in August of 2019 for The Guardian, law professor Ganesh Sitaraman argued there is a tight relationship between economic power and political power:

[R]eformers recognized that concentrated economic power — in any form — was a threat to freedom and democracy. Concentrated economic power not only allowed for localized oppression, especially of workers in their daily lives, it also made it more likely that big corporations and wealthy people wouldn’t be subject to the rule of law or democratic controls. Reformers’ answer to the concentration of economic power was threefold: break up economic power, rein it in through regulation, and tax it.

It was the reformers of the Gilded Age and Progressive Era who invented America’s antitrust laws — from the Sherman Antitrust Act of 1890 to the Clayton Act and Federal Trade Commission Acts of the early 20th century. Whether it was Republican trust-buster Teddy Roosevelt or liberal supreme court justice Louis Brandeis, courageous leaders in this era understood that when companies grow too powerful they threatened not just the economy but democratic government as well. Break-ups were a way to prevent the agglomeration of economic power in the first place, and promote an economic democracy, not just a political democracy. (emphasis added)

Luigi Zingales made a similar argument in his 2017 paper “Towards a Political Theory of the Firm”:

[T]he interaction of concentrated corporate power and politics is a threat to the functioning of the free market economy and to the economic prosperity it can generate, and a threat to democracy as well. (emphasis added)

The assumption that economic power leads to political power is not a new one. Not only, as Zingales points out, have political thinkers since Adam Smith asserted versions of the same, but more modern social scientists have continued the claims with varying (but always indeterminate) degrees of quantification. Zingales quotes Adolf Berle and Gardiner Means’ 1932 book, The Modern Corporation and Private Property, for example:

The rise of the modern corporation has brought a concentration of economic power which can compete on equal terms with the modern state — economic power versus political power, each strong in its own field. 

Russell Pittman (an economist at the DOJ Antitrust Division) argued in 1988 that rent-seeking activities would be undertaken only by firms in highly concentrated industries because:

if the industry in question is unconcentrated, then the firm may decide that the level of benefits accruing to the industry will be unaffected by its own level of contributions, so that the benefits may be enjoyed without incurrence of the costs. Such a calculation may be made by other firms in the industry, of course, with the result that a free-rider problem prevents firms individually from making political contributions, even if it is in their collective interest to do so.

For the most part the claims are virtually entirely theoretical and their support anecdotal. Reich, for example, supports his claim with two thin anecdotes from which he draws a firm (but, in fact, unsupported) conclusion: 

To take one example, although the European Union filed fined [sic] Google a record $2.7 billion for forcing search engine users into its own shopping platforms, American antitrust authorities have not moved against the company.

Why not?… We can’t be sure why the FTC chose not to pursue Google. After all, section 5 of the Federal Trade Commission Act of 1914 gives the Commission broad authority to prevent unfair acts or practices. One distinct possibility concerns Google’s political power. It has one of the biggest lobbying powerhouses in Washington, and the firm gives generously to Democrats as well as Republicans.

A clearer example of an abuse of power was revealed last November when the New York Times reported that Facebook executives withheld evidence of Russian activity on their platform far longer than previously disclosed.

Even more disturbing, Facebook employed a political opposition research firm to discredit critics. How long will it be before Facebook uses its own data and platform against critics? Or before potential critics are silenced even by the possibility? As the Times’s investigation made clear, economic power cannot be separated from political power. (emphasis added)

The conclusion — that “economic power cannot be separated from political power” — simply does not follow from the alleged evidence. 

The relationship between economic power and political power is extremely weak

Few of these assertions of the relationship between economic and political power are backed by empirical evidence. Pittman’s 1988 paper is empirical (as is his previous 1977 paper looking at the relationship between industry concentration and contributions to Nixon’s re-election campaign), but it is also in direct contradiction to several other empirical studies (Zardkoohi (1985); Munger (1988); Esty and Caves (1983)) that find no correlation between concentration and political influence; Pittman’s 1988 paper is indeed a response to those papers, in part. 

In fact, as one study (Grier, Muger & Roberts (1991)) summarizes the evidence:

[O]f ten empirical investigations by six different authors/teams…, relatively few of the studies find a positive, significant relation between contributions/level of political activity and concentration, though a variety of measures of both are used…. 

There is little to recommend most of these studies as conclusive one way or the other on the question of interest. Each one suffers from a sample selection or estimation problem that renders its results suspect. (emphasis added)

And, as they point out, there is good reason to question the underlying theory of a direct correlation between concentration and political influence:

[L]egislation or regulation favorable to an industry is from the perspective of a given firm a public good, and therefore subject to Olson’s collective action problem. Concentrated industries should suffer less from this difficulty, since their sparse numbers make bargaining cheaper…. [But at the same time,] concentration itself may affect demand, suggesting that the predicted correlation between concentration and political activity may be ambiguous, or even negative. 

* * *

The only conclusion that seems possible is that the question of the correct relation between the structure of an industry and its observed level of political activity cannot be resolved theoretically. While it may be true that firms in a concentrated industry can more cheaply solve the collective action problem that inheres in political action, they are also less likely to need to do so than their more competitive brethren…. As is so often the case, the interesting question is empirical: who is right? (emphasis added)

The results of Grier, Muger & Roberts (1991)’s own empirical study are ambiguous at best (and relate only to political participation, not success, and thus not actual political power):

[A]re concentrated industries more or less likely to be politically active? Numerous previous studies have addressed this topic, but their methods are not comparable and their results are flatly contradictory. 

On the side of predicting a positive correlation between concentration and political activity is the theory that Olson’s “free rider” problem has more bite the larger the number of participants and the smaller their respective individual benefits. Opposing this view is the claim that it precisely because such industries are concentrated that they have less need for government intervention. They can act on their own to gamer the benefits of cartelization that less concentrated industries can secure only through political activity. 

Our results indicate that both sides are right, over some range of concentration. The relation between political activity and concentration is a polynomial of degree 2, rising and then falling, achieving a peak at a four-firm concentration ratio slightly below 0.5. (emphasis added)

Despite all of this, Zingales (like others) explicitly claims that there is a clear and direct relationship between economic power and political power:

In the last three decades in the United States, the power of corporations to shape the rules of the game has become stronger… [because] the size and market share of companies has increased, which reduces the competition across conflicting interests in the same sector and makes corporations more powerful vis-à-vis consumers’ interest.

But a quick look at the empirical data continues to call this assertion into serious question. Indeed, if we look at the lobbying expenditures of the top 50 companies in the US by market capitalization, we see an extremely weak (at best) relationship between firm size and political power (as proxied by lobbying expenditures):

Of course, once again, this says little about the effectiveness of efforts to exercise political power, which could, in theory, correlate with market power but not expenditures. Yet the evidence on this suggests that, while concentration “increases both [political] activity and success…, [n]either firm size nor industry size has a robust influence on political activity or success.” (emphasis added). Of course there are enormous and well-known problems with measuring industry concentration, and it’s not clear that even this attribute is well-correlated with political activity or success (and, interestingly for the argument that profits are a big part of the story because firms in more concentrated industries from lax antitrust realize higher profits have more money to spend on political influence, even concentration in the Esty and Caves study is not correlated with political expenditures.)

Indeed, a couple of examples show the wide range of lobbying expenditures for a given firm size. Costco, which currently has a market cap of $130 billion, has spent only $210,000 on lobbying so far in 2019. By contrast, Amgen, which has a $144 billion market cap, has spent $8.54 million, or more than 40 times as much. As shown in the chart above, this variance is the norm. 

However, discussing the relative differences between these companies is less important than pointing out the absolute levels of expenditure. Spending eight and a half million dollars per year would not be prohibitive for literally thousands of firms in the US. If access is this cheap, what’s going on here?

Why is there so little money in US politics?

The Tullock paradox asks why, if the return to rent-seeking is so high — which it plausibly is because the government spends trillions of dollars each year — is so little money spent on influencing policymakers?

Considering the value of public policies at stake and the reputed influence of campaign contributors in policymaking, Gordon Tullock (1972) asked, why is there so little money in U.S. politics? In 1972, when Tullock raised this question, campaign spending was about $200 million. Assuming a reasonable rate of return, such an investment could have yielded at most $250-300 million over time, a sum dwarfed by the hundreds of billions of dollars worth of public expenditures and regulatory costs supposedly at stake.

A recent article by Scott Alexander updated the numbers for 2019 and compared the total to the $12 billion US almond industry:

[A]ll donations to all candidates, all lobbying, all think tanks, all advocacy organizations, the Washington Post, Vox, Mic, Mashable, Gawker, and Tumblr, combined, are still worth a little bit less than the almond industry.

Maybe it’s because spending money on donations, lobbying, think tanks, journalism and advocacy is ineffective on net (i.e., spending by one group is counterbalanced by spending by another group) and businesses know it?

In his paper on elections, Ansolabehere focuses on the corporate perspective. He argues that money neither makes a candidate much more likely to win, nor buys much influence with a candidate who does win. Corporations know this, which is why they don’t bother spending more. (emphasis added)

To his credit, Zingales acknowledges this issue:

To the extent that US corporations are exercising political influence, it seems that they are choosing less-visible but perhaps more effective ways. In fact, since Gordon Tullock’s (1972) famous article, it has been a puzzle in political science why there is so little money in politics (as discussed in this journal by Ansolabehere, de Figueiredo, and Snyder 2003).

So, what are these “less-visible but perhaps more effective” ways? Unfortunately, the evidence in support of this claim is anecdotal and unconvincing. As noted above, Reich offers only speculation and extremely weak anecdotal assertions. Meanwhile, Zingales tells the story of Robert (mistakenly identified in the paper as “Richard”) Rubin pushing through repeal of Glass-Steagall to benefit Citigroup, then getting hired for $15 million a year when he left the government. Assuming the implication is actually true, is that amount really beyond the reach of all but the largest companies? How many banks with an interest in the repeal of Glass-Steagall were really unlikely at the time to be able to credibly offer future compensation because they would be out of business? Very few, and no doubt some of the biggest and most powerful were arguably at greater risk of bankruptcy than some of the smaller banks.

Maybe only big companies have an interest in doing this kind of thing because they have more to lose? But in concentrated industries they also have more to lose by conferring the benefit on their competitors. And it’s hard to make the repeal or passage of a law, say, apply only to you and not everyone else in the industry. Maybe they collude? Perhaps, but is there any evidence of this? Zingales offers only pure speculation here, as well. For example, why was the US Google investigation dropped but not the EU one? Clearly because of White House visits, says Zingales. OK — but how much do these visits cost firms? If that’s the source of political power, it surely doesn’t require monopoly profits to obtain it. And it’s virtually impossible that direct relationships of this kind are beyond the reach of coalitions of smaller firms, or even small firms, full stop.  

In any case, the political power explanation turns mostly on doling out favors in exchange for individuals’ payoffs — which just aren’t that expensive, and it’s doubtful that the size of a firm correlates with the quality of its one-on-one influence brokering, except to the extent that causation might run the other way — which would be an indictment not of size but of politics. Of course, in the Hobbesian world of political influence brokering, as in the Hobbesian world of pre-political society, size alone is not determinative so long as alliances can be made or outcomes turn on things other than size (e.g., weapons in the pre-Hobbesian world; family connections in the world of political influence). 

The Noerr–Pennington doctrine is highly relevant here as well. In Noerr, the Court ruled that “no violation of the [Sherman] Act can be predicated upon mere attempts to influence the passage or enforcement of laws” and “[j]oint efforts to influence public officials do not violate the antitrust laws even though intended to eliminate competition.” This would seem to explain, among other things, the existence of trade associations and other entities used by coalitions of small (and large) firms to influence the policymaking process.

If what matters for influence peddling is ultimately individual relationships and lobbying power, why aren’t the biggest firms in the world the lobbying firms and consultant shops? Why is Rubin selling out for $15 million a year if the benefit to Citigroup is in the billions? And, if concentration is the culprit, why isn’t it plausibly also the solution? It isn’t only the state that keeps the power of big companies in check; it’s other big companies, too. What Henry G. Manne said in his testimony on the Industrial Reorganization Act of 1973 remains true today: 

There is simply no correlation between the concentration ratio in an industry, or the size of its firms, and the effectiveness of the industry in the halls of Government.

In addition to the data presented earlier, this analysis would be incomplete if it did not mention the role of advocacy groups in influencing outcomes, the importance and size of large foundations, the role of unions, and the role of individual relationships.

Maybe voters matter more than money?

The National Rifle Association spends very little on direct lobbying efforts (less than $10 million over the most recent two-year cycle). The organization’s total annual budget is around $400 million. In the grand scheme of things, these are not overwhelming resources. But the NRA is widely-regarded as one of the most powerful political groups in the country, particularly within the Republican Party. How could this be? In short, maybe it’s not Sturm Ruger, Remington Outdoor, and Smith & Wesson — the three largest gun manufacturers in the US — that influence gun regulations; maybe it’s the highly-motivated voters who like to buy guns. 

The NRA has 5.5 million members, many of whom vote in primaries with gun rights as one of their top issues  — if not the top issue. And with low turnout in primaries — only 8.7% of all registered voters participated in 2018 Republican primaries — a candidate seeking the Republican nomination all but has to secure an endorsement from the NRA. On this issue at least, the deciding factor is the intensity of voter preferences, not the magnitude of campaign donations from rent-seeking corporations.

The NRA is not the only counterexample to arguments like those from Zingales. Auto dealers are a constituency that is powerful not necessarily due to its raw size but through its dispersed nature. At the state level, almost every political district has an auto dealership (and the owners are some of the wealthiest and best-connected individuals in the area). It’s no surprise then that most states ban the direct sale of cars from manufacturers (i.e., you have to go through a dealer). This results in higher prices for consumers and lower output for manufacturers. But the auto dealership industry is not highly concentrated at the national level. The dealers don’t need to spend millions of dollars lobbying federal policymakers for special protections; they can do it on the local level — on a state-by-state basis — for much less money (and without merging into consolidated national chains).

Another, more recent, case highlights the factors besides money that may affect political decisions. President Trump has been highly critical of Jeff Bezos and the Washington Post (which Bezos owns) since the beginning of his administration because he views the newspaper as a political enemy. In October, Microsoft beat out Amazon for a $10 billion contract to provide cloud infrastructure for the Department of Defense (DoD). Now, Amazon is suing the government, claiming that Trump improperly influenced the competitive bidding process and cost the company a fair shot at the contract. This case is a good example of how money may not be determinative at the margin, and also how multiple “monopolies” may have conflicting incentives and we don’t know how they net out.

Politicizing antitrust will only make this problem worse

At the FTC’s “Hearings on Competition and Consumer Protection in the 21st Century,” Barry Lynn of the Open Markets Institute advocated using antitrust to counter the political power of economically powerful firms:

[T]he main practical goal of antimonopoly is to extend checks and balances into the political economy. The foremost goal is not and must never be efficiency. Markets are made, they do not exist in any platonic ether. The making of markets is a political and moral act.

In other words, the goal of breaking up economic power is not to increase economic benefits but to decrease political influence. 

But as the author of one of the empirical analyses of the relationship between economic and political power notes the asserted “solution” to the unsupported “problem” of excess political influence by economically powerful firms — more and easier antitrust enforcement — may actually make the alleged problem worse:

Economic rents may be obtained through the process of market competition or be obtained by resorting to governmental protection. Rational firms choose the least costly alternative. Collusion to obtain governmental protection will be less costly, the higher the concentration, ceteris paribus. However, high concentration in itself is neither necessary nor sufficient to induce governmental protection.

The result that rent-seeking activity is triggered when firms are affected by government regulation has a clear implication: to reduce rent-seeking waste, governmental interference in the market place needs to be attenuated. Pittman’s suggested approach, however, is “to maintain a vigorous antitrust policy” (p. 181). In fact, a more strict antitrust policy may exacerbate rent-seeking. For example, the firms which will be affected by a vigorous application of antitrust laws would have incentive to seek moderation (or rents) from Congress or from the enforcement officials.

Rent-seeking by smaller firms could both be more prevalent, and, paradoxically, ultimately lead to increased concentration. And imbuing antitrust with an ill-defined set of vague political objectives (as many proponents of these arguments desire), would also make antitrust into a sort of “meta-legislation.” As a result, the return on influencing a handful of government appointments with authority over antitrust becomes huge — increasing the ability and the incentive to do so. 

And if the underlying basis for antitrust enforcement is extended beyond economic welfare effects, how long can we expect to resist calls to restrain enforcement precisely to further those goals? With an expanded basis for increased enforcement, the effort and ability to get exemptions will be massively increased as the persuasiveness of the claimed justifications for those exemptions, which already encompass non-economic goals, will be greatly enhanced. We might find that we end up with even more concentration because the exceptions could subsume the rules. All of which of course highlights the fundamental, underlying irony of claims that we need to diminish the economic content of antitrust in order to reduce the political power of private firms: If you make antitrust more political, you’ll get less democratic, more politically determined, results.

In Amazon, Antitrust & Competition, Antitrust Division, Corporate & Securities Law, European Union, Exemptions, Facebook, Federal Trade Commission, Google, International, International Center for Law & Economics, Justice Department, Platforms, Section 5, The Politicization of Antitrust, Truth on the Market , , , , , ,
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“Politicization of Antitrust:” An Opportunity

Steven J Cernak —  30 December 2019

[TOTM: The following is the first 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 Steven J. Cernak, Partner at Bona Law and Adjunct Professor, University of Michigan Law School and Western Michigan University Thomas M. Cooley Law School. This paper represents the current views of the author alone and not necessarily the views of any past, present or future employer or client.

When some antitrust practitioners hear “the politicization of antitrust,” they cringe while imagining, say, merger approval hanging on the size of the bribe or closeness of the connection with the right politician.  Even a more benign interpretation of the phrase “politicization of antitrust” might drive some antitrust technocrats up the wall:  “Why must the mainstream media and, heaven forbid, politicians start weighing in on what antitrust interpretations, policy and law should be?  Don’t they know that we have it all figured out and, if we decide it needs any tweaks, we’ll make those over drinks at the ABA Antitrust Section Spring Meeting?”

While I agree with the reaction to the cringe-worthy interpretation of “politicization,” I think members of the antitrust community should not be surprised or hostile to the second interpretation, that is, all the new attention from new people.  Such attention is not unusual historically; more importantly, it provides an opportunity to explain the benefits and limits of antitrust enforcement and the competitive process it is meant to protect. 

The Sherman Act itself, along with its state-level predecessors, was the product of a political reaction to perceived problems of the late 19th Century – hence all of today’s references to a “new gilded age” as echoes of the political arguments of 1890.  Since then, the Sherman Act has not been immutable.  The U.S. antitrust laws have changed – and new antitrust enforcers have even been added – when the political debates convinced enough that change was necessary.  Today’s political discussion could be surprising to so many members of the antitrust community because they were not even alive when the last major change was debated and passed. 

More generally, the U.S. political position on other government regulation of – or intervention or participation in – free markets has varied considerably over the years.  While controversial when they were passed, we now take Medicare and Medicaid for granted and debate “Medicare for all” – why shouldn’t an overhaul of the Sherman Act also be a legitimate political discussion?  The Interstate Commerce Commission might be gone and forgotten but at one time it garnered political support to regulate the most powerful industries of the late 19th and early 20th Century – why should a debate on new ways to regulate today’s powerful industries be out of the question? 

So today’s antitrust practitioners should avoid the temptation to proclaim an “end of history” and that all antitrust policy questions have been asked and answered and instead, as some of us have been suggesting since at least the last election cycle, join the political debate.  But now, for those of us who are generally supportive of the U.S. antitrust status quo, the question is how? 

Some have been pushing back on the supposed evidence that a change in antitrust or other governmental policies is necessary.  For instance, in late 2015 the White House Council of Economic Advisers published a paper on increased concentration in many industries which others have used as evidence of a failure of antitrust law to protect competition.  Josh Wright has used several platforms to point out that the industry measurement was too broad and the concentration level too low to be useful in these discussions.  Also, he reminded readers that concentration and levels of competition are different concepts that are not necessarily linked.  On questions surrounding inequality and stagnation of standards of living, Russ Roberts has produced a series of videos that try to explain why any such questions are difficult to answer with the easy numbers available and why, perhaps, it is not correct that “the rich got all the gains.” 

Others, like Dan Crane for instance, have advanced the debate by trying to get those commentators who are unhappy with the status quo to explain what they see as the problems and the proposed fixes.  While it might be too much to ask for unanimity among a diverse group of commentators, the debate might be more productive now that some more specific complaints and solutions have begun to emerge. 

Even if the problems are properly identified, we should not allow anyone to blithely assume that any – or any particular – increase in government oversight will solve it without creating different issues.  The Federal Trade Commission tackled this issue in its final hearing on Competition and Consumer Protection in the 21st Century with a panel on Frank Easterbrook’s seminal “Limits of Antitrust” paper.  I was fortunate enough to be on that panel and tried to summarize the ongoing importance of “Limits,” and advance the broader debate, by encouraging those who would change antitrust policy and increase supervision of the market to have appropriate “regulatory humility” (a term borrowed from former FTC Chairman Maureen Ohlhausen) about what can be accomplished.

I identified three varieties of humility present in “Limits” and pertinent here.  First, there is the humility to recognize that mastering anything as complex as an economy or any significant industry will require knowledge of innumerable items, some unseen or poorly understood, and so could be impossible.  Here, Easterbrook echoes Friedrich Hayek’s “Pretense of Knowledge” Nobel acceptance speech. 

Second, there is the humility to recognize that any judge or enforcer, like any other human being, is subject to her own biases and predilections, whether based on experience or the institutional framework within which she works.  While market participants might not be perfect, great thinkers from Madison to Kovacic have recognized that “men (or any agency leaders) are not angels” either.  As Thibault Schrepel has explained, it would be “romantic” to assume that any newly-empowered government enforcer will always act in the best interest of her constituents. 

Finally, there is the humility to recognize that humanity has been around a long time and faced a number of issues and that we might learn something from how our predecessors reacted to what appear to be similar issues in history.  Given my personal history and current interests, I have focused on events from the automotive industry; however, the story of the unassailable power (until it wasn’t) of A&P and how it spawned the Robinson-Patman Act, ably told by Tim Muris and Jonathan Neuchterlein, might be more pertinent here.  So challenging those advocating for big changes to explain why they are so confident this time around can be useful. 

But while all those avenues of argument can be effective in explaining why greater government intervention in the form of new antitrust policies might be worse than the status quo, we also must do a better job at explaining why antitrust and the market forces it protects are actually good for society.  If democratic capitalism really has “lengthened the life span, made the elimination of poverty and famine thinkable, enlarged the range of human choice” as claimed by Michael Novak in The Spirit of Democratic Capitalism, we should do more to spread that good news. 

Maybe we need to spend more time telling and retelling the “I, Pencil” or “It’s a Wonderful Loaf” stories about how well markets can and do work at coordinating the self-interested behavior of many to the benefit of even more.  Then we can illustrate the limited role of antitrust in that complex effort – say, punishing any collusion among the mills or bakers in those two stories to ensure the process works as beautifully and simply displayed.  For the first time in decades, politicians and real people, like the consumers whose welfare we are supposed to be protecting, are paying attention to our wonderful world of antitrust.  We should seize the opportunity to explain what we do and why it matters and discuss if any improvements can be made.

In Antitrust & Competition, Federal Trade Commission, Platforms, The Politicization of Antitrust, Truth on the Market , , , ,
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The Politicization of Antitrust Blog Symposium

Julian Morris —  30 December 2019

The operative text of the Sherman Antitrust Act of 1890 is a scant 100 words:

Section 1:

Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal. Every person who shall make any contract or engage in any combination or conspiracy hereby declared to be illegal shall be deemed guilty of a felony…

Section 2:

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony…

Its short length and broad implications (“Every contract… in restraint of trade… is declared to be illegal”) didn’t give the courts much to go on in terms of textualism. As for originalism, the legislative history of the Sherman Act is mixed, and no consensus currently exists among experts. In practice, that means enforcement of the antitrust laws in the US has been a product of the evolutionary common law process (and has changed over time due to economic learning). 

Over the last fifty years, academics, judges, and practitioners have generally converged on the consumer welfare standard as the best approach for protecting market competition. Although some early supporters of aggressive enforcement (e.g., Brandeis and, more recently, Pitofsky) advocated for a more political conception of antitrust, that conception of the law has been decisively rejected by the courts as the contours of the law have evolved through judicial decisionmaking. 

In the last few years, however, a movement has reemerged to expand antitrust beyond consumer welfare to include political and social issues, ranging from broadly macroeconomic matters like rising income inequality and declining wages, to sociopolitical concerns like increasing political concentration, environmental degradation, a struggling traditional news industry, and declining localism. 

Although we at ICLE are decidedly in the consumer welfare camp, the contested “original intent” of the antitrust laws and the simple progress of evolving interpretation could conceivably support a broader, more-political interpretation. It is, at the very least, a timely and significant question whether and how political and social issues might be incorporated into antitrust law. Yet much of the discussion of politics and antitrust has been heavy on rhetoric and light on substance; it is dominated by non-expert, ideologically driven opinion. 

In this blog symposium we seek to offer a more substantive and balanced discussion of the issue. To that end, we invited a number of respected economists, legal scholars, and practitioners to offer their perspectives. 

The symposium comprises posts by Steve Cernak, Luigi Zingales and Filippo Maria Lancieri, Geoffrey A. Manne and Alec Stapp, Valentin Mircea,  Ramsi Woodcock, Kristian Stout, and Cento Veljanoski.

Both Steve Cernak and Zingales and Lancieri offer big picture perspectives. Cernak sees the current debate as, “an opportunity to explain the benefits and limits of antitrust enforcement and the competitive process it is meant to protect.” He then urges “regulatory humility” and outlines what this means in the context of antitrust.  

Zingales and Lancieri note that “simply “politicizing” the current antitrust regime would be very dangerous for the economic well-being of nations.” More specifically, they observe that “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.” Nonetheless, they argue that nuanced changes to the application of antitrust law may be justified because, “as markets become more concentrated, incumbent firms become better at distorting the political process in their favor.”

Manne and Stapp question the existence of a causal relationship between market concentration and political power, noting that there is little empirical support for such a claim.  Moreover, they warn that politicizing antitrust will inevitably result in more politicized antitrust enforcement actions to the detriment of consumers and democracy. 

Mircea argues that antitrust enforcement in the EU is already too political and that enforcement has been too focused on “Big Tech” companies. The result has been to chill investment in technology firms in the EU while failing to address legitimate antitrust violations in other sectors. 

Woodcock argues that the excessive focus on “Big Tech” companies as antitrust villains has come in no small part from a concerted effort by “Big Ink” (i.e. media companies), who resent the loss of advertising revenue that has resulted from the emergence of online advertising platforms. Woodcock suggests that the solution to this problem is to ban advertising. (We suspect that this cure would be worse than the disease but will leave substantive criticism to another blog post.)

Stout argues that while consumers may have legitimate grievances with Big Tech companies, these grievances do not justify widening the scope of antitrust, noting that “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.”

Finally, Veljanovski highlights potential problems with per se rules against cartels, noting that in some cases (most notably regulation of common pool resources such as fisheries), long-run consumer welfare may be improved by permitting certain kinds of cartel. However, he notes that in the case of polluting firms, a cartel that raises prices and lowers output is not likely to be the most efficient way to reduce the harms associated with pollution. This is of relevance given the DOJ’s case against certain automobile manufacturers, which are accused of colluding with California to set emission standards that are stricter than required under federal law.

It is tempting to conclude that U.S. antitrust law is not fundamentally broken, so does not require a major fix. Indeed, if any fix is needed, it is that the CWS should be more widely applied both in the U.S. and internationally.

In Antitrust & Competition, Cartels, European Union, International, Justice Department, Platforms, The Politicization of Antitrust, Truth on the Market, Twitter , , ,
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Heritage Antitrust Conference Highlights Domestic and International Policy Challenges for the Next Administration

Alden Abbott —  27 January 2016

On January 26 the Heritage Foundation hosted a one-day conference on “Antitrust Policy for a New Administration.”  Featured speakers included three former heads of the U.S. Department of Justice’s Antitrust Division (DOJ) (D.C. Circuit Senior Judge Douglas Ginsburg, James Rill, and Thomas Barnett) and a former Chairman of the U.S. Federal Trade Commission (FTC) (keynote speaker Professor William Kovacic), among other leading experts on foreign and domestic antitrust.  The conference addressed developments at DOJ, the FTC, and overseas.  The entire program (which will be posted for viewing very shortly at Heritage.org) has generated substantial trade press coverage (see, for example, two articles published by Global Competition Review).  Four themes highlighted during the presentations are particularly worth noting.

First, the importance of the federal judiciary – and judicial selection – in the development and direction of U.S. antitrust policy.  In his opening address, Professor Bill Kovacic described the central role the federal judiciary plays in shaping American antitrust principles.  He explained how a few key judges with academic backgrounds (for example, Frank Easterbrook, Richard Posner, Stephen Breyer, and Antonin Scalia) had a profound effect in reorienting American antitrust rules toward the teachings of law and economics, and added that the Reagan Administration focused explicitly on appointing free market-oriented law professors for key appellate judgeships.  Since the new President will appoint a large proportion of the federal judiciary, the outcome of the 2016 election could profoundly influence the future direction of antitrust, according to Professor Kovacic.  (Professor Kovacic also made anecdotal comments about various candidates, noting the short but successful FTC experience of Ted Cruz; Donald Trump having once been an antitrust plaintiff (when the United States Football League sued the National Football League); Hillary Clinton’s misstatement that antitrust has not been applied to anticompetitive payoffs made by big drug companies to generic producers; and Bernie Sanders’ pronouncements suggesting a possible interest in requiring the breakup of large companies.)

Second, the loss of American global economic leadership on antitrust enforcement policy.  There was a consensus that jurisdictions around the world increasingly have opted for the somewhat more interventionist European civil law approach to antitrust, in preference to the American enforcement model.  There are various explanations for this, including the fact that civil law predominates in many (though not all) nations that have adopted antitrust regimes, and the natural attraction many governments have for administrative models of economic regulation that grant the state broad enforcement discretion and authority.  Whatever the explanation, there also seemed to be some sentiment that U.S. government agencies have not been particularly aggressive in seeking to counter this trend by making the case for the U.S. approach (which relies more on flexible common law reasoning to accommodate new facts and new economic learning).  (See here for my views on a desirable approach to antitrust enforcement, rooted in error cost considerations.)

Third, the need to consider reforming current cartel enforcement programs.  Cartel enforcement programs, which are a mainstay of antitrust, received some critical evaluation by the members of the DOJ and international panels.  Judge Ginsburg noted that the pattern of imposing ever- higher fines on companies, which independently have strong incentives to avoid cartel conduct, may be counterproductive, since it is typically “rogue” employees who flout company policies and collaborate in cartels.  The focus thus should be on strong sanctions against such employees.  Others also opined that overly high corporate cartel fines may not be ideal.  Relatedly, some argued that the failure to give “good behavior” credit to companies that have corporate compliance programs may be suboptimal and welfare-reducing, since companies may find that it is not cost-beneficial to invest substantially in such programs if they receive no perceived benefit.  Also, it was pointed out that imposing very onerous and expensive internal compliance mandates would be inappropriate, since companies may avoid them if they perceive the costs of compliance programs to outweigh the expected value of antitrust penalties.  In addition, the programs by which governments grants firms leniency for informing on a cartel in which they participate – instituted by DOJ in the 1990s and widely emulated by foreign enforcement agencies – came in for some critical evaluation.  One international panelist argued that DOJ should not rely solely on leniency to ferret out cartel activity, stressing that other jurisdictions are beginning to apply econometric methods to aid cartel detection.  In sum, while there appeared to be general agreement about the value and overall success of cartel prosecutions, there also was support for consideration of new means to deter and detect cartels.

Fourth, the need to work to enhance due process in agency investigations and enforcement actions.  Concerns about due process surfaced on both the FTC and international panels.  A former FTC general counsel complained about staff’s lack of explanation of theories of violation in FTC consumer protection investigations, and limitations on access to senior level decision-makers, in cases not raising fraud.  It was argued that such investigations may promote the micromanagement of non-deceptive business behavior in areas such as data protection.  Although consumer protection is not antitrust, commentators raised the possibility that foreigner agencies would cite FTC consumer protection due process deficiencies in justifying their antitrust due process inadequacies (since the FTC enforces both antitrust and consumer protection under one statutory scheme).  The international panel discussed the fact that due process problems are particularly bad in Asia but also exist to some extent in Europe.  Particular due process issues panelists found to be pervasive overseas included, for example, documentary request abuses, lack of adequate access to counsel, and inadequate information about the nature or purpose of investigations.  The international panelists agreed that the U.S. antitrust enforcement agencies, bar associations, and international organizations (such as the International Competition Network and the OECD) should continue to work to promote due process, but that there is no magic bullet and this will be require a long-term commitment.  (There was no unanimity as to whether other U.S. governmental organs, such as the State Department and the U.S. Trade Representative’s Office, should be called upon for assistance.)

In conclusion, the 2016 Heritage Foundation antitrust conference shed valuable light on major antitrust policy issues that the next President will have to confront.  The approach the next President takes in dealing with these issues will have major implications for a very significant branch of economic regulation, both here and abroad.

In Antitrust & Competition, Antitrust Division, Cartels, Constitutional Law, Federal Trade Commission, International, Justice Department, Law & Economics, Supreme Court, Truth on the Market , , , , , , , ,
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