Mr. President, I rise today to introduce the Tougher Enforcement Against Monopolists, or TEAM Act. I am grateful that my good friend and Ranking Member of the Judiciary Committee, Chuck Grassley, has joined me as a co-sponsor of the bill.
Now, I am aware our House colleagues just recently introduced several bills intended to fight anticompetitive conduct by Big Tech. Those bills don’t go far enough.
America is facing a panoply of competition concerns not just in Big Tech, but across our entire economy. We need a holistic approach that benefits all consumers, in every industry. We need to deal with all the monopolists hurting competition.
Even worse, the House bills not only have too small of a target, they use too big of a sledgehammer to hit it. They create a truly massive expansion of federal regulatory power, and are the first steps toward a command-and-control economy. Responding to Big Tech with Big Government is adding insult to injury—not to mention something I doubt any conservative will be able to support. We don’t need a bigger government—we need to make the one we have work better.
The TEAM Act avoids each of these mistakes. Instead of a narrow focus and big-government approach, this bill will improve federal antitrust enforcement for the entire economy, without making government bigger.
The TEAM Act improves antitrust law in two ways. The first is putting all of our antitrust enforcers on one team. The TEAM Act unites our two federal antitrust enforcement agencies into one. For over a century, American antitrust enforcement has been a two-headed creature, sometimes at odds with itself. The results have been delays to enforcement and consumer redress, uncertainty for businesses, and even conflicting antitrust enforcement policy. Just recently, the two agencies actually argued against each other on opposite sides of an appeal before the U.S. Court of Appeals for the Ninth Circuit. This arrangement isn’t working for anyone except corporations looking to game the system.
I hope that the bill can also put our two parties on the same team when it comes to antitrust reform. Our present reform movement is filled with bipartisan fervor to improve the lives of our constituents by improving competition in the markets that serve them, and protecting them from the monopolies that exercise so much unearned power over broad swaths of our economy. We don’t agree on everything, but we agree on this. It’s my sincere belief that this bill represents the best, and hopefully bipartisan, path forward.
That brings me to the second focus of the bill: preventing antitrust harm by monopolists. I use the term “antitrust harm” deliberately. In certain corners of the antitrust policy world it has become fashionable to talk of being “pro-monopoly” or “anti-monopoly,” which is often tied to being pro- or anti-democracy. That is also deliberate terminology, and I think it is dangerous. It’s a sleight of hand meant to move the conversation away from specific conduct, and whether that conduct harms competition, and to instead imply that all that matters is size and whether you support or defend a business based on its size.
That position is both unserious and economically illiterate. Even the briefest moment of reflection will demonstrate its absurdity. If you are anti-monopoly, are you also anti-patent? Patents are, after all, government-granted monopolies. The entire purpose of a patent is to allow its holder to exclude competition for a limited period of time and charge the highest price the market will bear. But we allow this because the prospect of collecting monopoly profits acts as an incentive to innovate and invest in new ideas. The same principle is at work in market monopolies: the prospect of obtaining a monopoly through competition on the merits incentivizes competitors to offer consumers better products and services at lower prices. This free market system, built on competition and innovation, is responsible for many of the great achievements of mankind and the economic flourishing of the greatest nation on earth.
But even more important is the foundational principle of our republic that the law deals with conduct, not status. We punish people for what they do, not who they are. “Big is bad” abandons that fundamental American principle of law. Instead, the facile insistence on being simply “anti-monopoly” belies the proponent’s true priorities: it means being anti-business, even when it hurts consumers. It is the economic version of cutting off your nose to spite your face.
The “big is bad” philosophy is also part of a broader effort to overturn the consumer welfare standard. This critical component of antitrust law has been widely misunderstood—often as a result of willful misrepresentation. The consumer welfare standard does not protect monopolists, it does not mean the government loses, and it is not limited to a narrow focus on prices.
Rather, the consumer welfare standard is a statement about the overarching goals of antitrust law: namely, that the purpose of antitrust is to advance the economic welfare of consumers, as opposed to protecting the competitors themselves or advancing unrelated social policies.
As I note in my introduction to the new edition of The Antitrust Paradox, Judge Robert Bork himself explicitly described the consumer welfare standard as being broader than price and including quality, innovation, and consumer choice. In other words, whatever consumers value, that is what is captured by “consumer welfare.”
But it is much easier to argue against the consumer welfare standard by pretending that it only cares about lower prices, and therefore is incapable of addressing consumer harm in markets with free products, such as many online services.
This misrepresentation says a lot about the true goals of the so-called anti-monopoly crowd. If they really cared about the non-price facets of competition, they wouldn’t need to abandon the consumer welfare standard to promote them. But that isn’t their true goal. The real problem they have with the consumer welfare standard is the way that it constrains judges from advancing unrelated policy goals. It turns out, the push to abandon the consumer welfare standard is not about stopping monopolies or helping consumers. It’s simply a Trojan horse for woke social policy.
Now, a proper application of the antitrust laws does have political benefits—what Utah’s constitution refers to as “the dispersion of economic and political power”—but those are secondary benefits. Antitrust is not primarily a political tool. If a company acquires market power as a result of competing on the merits, then any influence that flows from that will at least be a result of consumer choices. Just as citizens vote at the ballot box, consumers vote at the checkout aisle. But if that market power is obtained or grown through nefarious or anticompetitive means, the resulting market power is illegitimate and a threat to the republic.
Which leads to the point that, of course, many monopolies are bad. These are those monopolies obtained or prolonged not through competition on the merits, but through anticompetitive and exclusionary conduct. This conduct obstructs—rather than facilitates—the natural operation of the free market, using raw market power to prevent consumers from making optimal choices and starving them of lower prices, higher quality, and new offerings. Competitive conduct benefits both businesses and consumers. Anticompetitive conduct only helps the monopolist.
Unfortunately, there have been attempts to defend some anticompetitive conduct. This is most often done through the use of speculative and convoluted economic models that claim to predict the future, almost always predicting that a merger or specific conduct won’t actually harm competition. We have sadly seen an overcorrection from the days, lamented by Judge Bork, when courts and enforcers ignored basic economic analysis. Now “the age of sophists, economists, and calculators has succeeded” —and our antitrust enforcement efforts are frequently hampered by what Judge Bork called an “economic extravaganza.” The result has been that some conduct and mergers which should have been condemned have instead escaped much-needed scrutiny.
All of this is why the TEAM Act categorically rejects the Manichean belief that “big is always bad,” while still acknowledging that concentrated economic power can be just as dangerous as concentrated political power—and, in fact, one often leads to the other. In this way, it embraces antitrust law as a sort of federalism for the economy. And it does so by focusing not on mere size, but on antitrust harm—that is, whether something actually harms consumers by harming competition.
The bill strengthens our ability to prevent and correct antitrust harm in three ways:
The TEAM Act strengthens the antitrust laws. It includes a market share-based merger presumption, improves the HSR Act, codifies the consumer welfare standard, and makes it harder for monopolists to justify or excuse anticompetitive conduct.
The TEAM Act strengthens antitrust enforcers. In addition to consolidating federal antitrust enforcement at the Department of Justice, the bill also includes a version of the Merger Filing Fee Modernization Act, introduced by Senators Klobuchar and Grassley. And most significantly, the bill roughly doubles the amount of money appropriated to federal antitrust enforcement, ensuring that our antitrust enforcers have all of the resources they need to protect American consumers.
The TEAM Act strengthens antitrust remedies. The bill repeals Illinois Brick and Hanover Shoe, to ensure that consumers are able to recover damages from anticompetitive conduct. Even more significantly, the bill allows the Justice Department to recover trebled damages on behalf of consumers, and imposes civil fines for knowingly violating the antitrust laws.
I believe these reforms reflect the best way to strike a balance of protecting competition and consumer welfare, while limiting government intervention in the free market. In an era where would-be monopolists want to “move fast and break things,” it is essential that our antitrust enforcers are empowered to move fast and break ‘em up.
This is the prudent, conservative approach. Better antitrust enforcement means less regulation, and thus smaller government. This is also a wiser approach than attempting to statutorily prohibit certain categories of conduct. That approach abandons one of the greatest strengths of American antitrust law: the fact-specific nature of every inquiry. Case-by-case adjudication is what allows us to maximize enforcement while minimizing false positives. The TEAM Act avoids the black-and-white pronouncements of other legislative proposals, and instead updates the mechanics of how the antitrust laws are applied to address the enforcement gaps of recent decades.
As I have said before, we are at a critical moment. The threat to competition and free markets is real; doing nothing is not an option. At the same time, we cannot allow the need to “do something” to push us into embracing bad policy that will have unintended consequences and push America closer to a government-regulated economy.
I look forward to working closely with my colleagues and friends on both sides of the aisle to advance the TEAM Act and help protect American consumers. Thank you.