OPINION:
The Biden administration believes that bureaucrats should have veto power over companies that dare to grow above a government-approved size. Antitrust law, where the government breaks up disfavored companies, is the primary method the Biden administration is using to bring businesses under further government control.
The Department of Justice’s lawsuit against Google is a prime example of the Biden administration’s politicized approach to antitrust regulation. The case sets a dangerous precedent that will give regulators another tool they can use to threaten companies into pushing a progressive agenda.
The consumer welfare standard has anchored antitrust enforcement in the United States since the Supreme Court adopted it in the 1970s. Under the consumer welfare standard, antitrust enforcers evaluate whether business activity is demonstrably harming consumers through tangible effects like higher prices, lower quality and slowed innovation. By keeping antitrust enforcement laser-focused on what is best for consumers, the standard prevents regulators from using antitrust law to implement a political agenda.
Antitrust law before the consumer welfare standard was the Wild West. Antitrust agencies sued companies for ideological reasons, and competition was chilled because businesses did not have clarity on permissible business conduct. The deck was stacked in the government’s favor so severely that Supreme Court Justice Potter Stewart wrote, “The sole consistency that I can find is that in litigation under [Section 7 of the Clayton Act], the government always wins.”
DOJ’s antitrust case against Google is a clear attempt by the Biden administration to return antitrust law to this broken tradition. DOJ’s antitrust chief, Jonathan Kanter, is a well-known critic of Google who has represented its rivals in the past and has a clear conflict of interest in this matter. Before helming the Antitrust Division, Mr. Kanter made millions of dollars in private practice to lobby for antitrust action against Google. Mr. Kanter has also publicly aligned himself with progressive activists who want to use antitrust litigation to push a social agenda.
DOJ’s case is based on the premise that Google maintains a monopoly on online searches and uses its dominance to stifle its rivals. In reality, Google does not have a monopoly in any market and faces competition from Amazon, Microsoft, Meta, Apple and others. These competitors offer different types of products and services that cater to different needs and preferences of consumers and advertisers.
The government has claimed that Google spends untold sums to maintain its dominance in the search market, notably through a long-term agreement with Apple that Google is the default search engine on the Safari web browser. The case ignores the fact that consumers can easily switch away from Google at the click of a button if they so choose and do not need government do-gooders to help them make that decision.
The endgame is clear: The Biden administration wants to break up Google. Former Biden administration adviser Tim Wu said as much on CNBC — that the goal of the DOJ lawsuit was to dismantle Google. Hobbling American technology leadership in this fashion would be a gift to the Chinese Communist Party, which is salivating at the chance to see one of our leading industries weakened by our own government.
Some well-meaning conservatives assert that the Biden administration’s antitrust crusade will ameliorate Big Tech censorship of conservative voices online. Big Tech censorship would get far worse if the Biden administration could credibly threaten to break up companies without having to prove tangible harm to consumers. The Biden administration has already been caught red-handed pressuring social media companies into censoring COVID-19 “misinformation.” Antitrust is just another arrow in the Biden administration’s quiver.
Without the constraint of the consumer welfare standard, Biden administration regulators would be able to use antitrust to threaten companies into pushing a progressive agenda. This is not hypothetical: Federal Trade Commission Commissioner Rebecca Kelly Slaughter has called for using antitrust to “combat systemic racism” and “advance a diversity, inclusion, and anti-racist” agenda. The progressive left’s view of antitrust is a far cry from a value-neutral set of laws that exist to protect consumers and promote competition.
Google may be on the stand, but the trial’s impact would be far larger if the Biden administration prevails in court. Conservatives should view this case for what it is — a Biden administration power grab.
• Tom Hebert is director of competition and regulatory policy at Americans for Tax Reform and executive director of the Open Competition Center.
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