Aug 21 2019
The Tom Steyer-funded left-wing attack group CREW, which has sued President Trump more than 175 times, recently spun off a new attack entity devoted to attacking conservatives over technology issues.
This new entity recently attacked Sen. Mike Lee (R-UT) for allegedly changing his position on antitrust law due to a “lengthy, multifaceted campaign by Google and other big technology companies.”
Nothing could be further from the truth. Sen. Lee has not changed his view on antitrust in anyway what so ever. And anyone who claims otherwise is either ignorant of antitrust law, or is spreading misinformation for political partisan gain.
The attack on Sen. Lee begins by highlighting a September 2011 Senate antitrust subcommittee hearing where Sen. Lee accused then-Google Executive Chairman Eric Schmidt of designing Google’s search algorithm in a way that benefited products and services sold by Google.
“You've cooked it so that you're always third,” the attack quotes Sen. Lee saying. “Senator, I can assure you we have not cooked anything,” Schmidt responds.
But what the attack leaves out from this exchange is this foundational framing of the issue from Sen. Lee’s opening statement:
In assessing each of these concerns, the primary focus of our antitrust analysis should be consumer welfare (emphasis added). Growing complaints that Google is using its search dominance to favor its own offerings at the expense of competition deserves serious attention, especially if consumers are misled by Google's self-rankings and preferential display.
Such bias would deny user traffic and revenue to competing sites, depriving those sites of resources needed to develop more innovative content and offer better services to customers. When competing websites lose traffic, they are forced to increase their paid search advertising on Google, ultimately leading to increased prices for consumers (emphasis added).
So, from the very beginning we see that Sen. Lee’s approach to antitrust issues has always been guided by consumer welfare, particularly specific anti-competitive behavior that leads to increased prices for consumers.
As the attack notes, Sen. Lee followed up on that September hearing with a letter to the Federal Trade Commission explaining that:
It is important to note that the concerns expressed in this letter are not an effort to protect any specific competitor… We are committed to ensuring that consumers benefit from robust competition in online search and that the Internet remains the source of much free-market innovation. We therefore urge the FTC to investigate the issues raised at our Subcommittee hearing to determine whether Google’s actions violate antitrust law or substantially harm consumers or competition in this vital industry.
The attack on Sen. Lee then tries to contrast Sen. Lee’s 2011 letter calling on the FTC investigate how Google’s search engine might be harming consumers, with three more recent Sen. Lee statements that the attackers claim show Sen. Lee has changed how he approaches antitrust issues.
First, the attackers note that Sen. Lee recently “questioned the need for congressional antitrust investigations” into “Silicon Valley's tech titans.” And it is true, Sen. Lee did question the value of congressional hearings into broad antitrust allegations. But this in no way conflicts with Sen. Lee’s prior call for the FTC to investigate specific allegations of anticompetitive behavior. As Sen. Lee told Politico at the time, “Antitrust is a highly technical inquiry, not something that lends itself to easy generalizations or blanket condemnations.”
Second, the attackers note that Sen. Lee “complained about big fines imposed on Google.” And it is true, Sen. Lee did condemn the European Commission’s decision to fine Google $5 billion for violating the European Union’s antitrust laws. But Sen. Lee has long held concerns that the EU uses its competition laws to protect competitors rather than the competitive process. Condemning a foreign government for pursuing antitrust goals different from those pursued by US antitrust agencies in no way shows Sen. Lee changed his mind about anything.
Finally, the attackers claim Sen. Lee “defended the tech industry against Republican charges of liberal bias.” But if you actually watch the clip of the interview the attackers refer to, Sen. Lee did not defend the tech industry against bias in anyway. In fact, he agreed they were biased! What Sen. Lee did argue was that “not every concern rises to the level of market concentration coupled with consumer harm.” In other words, while Google may be biased, antitrust law is not the proper remedy to address the issue. Sen. Lee has always believed this.
Whether or not a specific company’s specific anti-competitive practice harms consumer welfare is the controlling legal standard for antitrust law. Hence Sen. Lee’s invocation of that standard in September 2011, and the December 2017 hearing Sen. Lee held titled, “The Consumer Welfare Standard in Antitrust: Outdated or a Harbor in a Sea of Doubt?”
But as that hearing demonstrated, there is a growing movement on the left that would like to change antitrust law so that consumer welfare was no longer the governing standard. This movement seeks to jettison the modern evidence-based focus on protecting competition in favor of a long-abandoned approach that bases antitrust enforcement on purely political objectives.
So, although the public and their elected officials have good cause to be concerned about certain practices in the tech industry, Sen. Lee will continue to caution against embracing proposals that would politicize the antitrust agencies and weaponize competition policy. While such proposals might suit the interests of some on the left (and apparently some on the right), such a sea change in how antitrust law is enforced would not serve the interests of American consumers and businesses.