Speeches

Welcome to this hearing of the Subcommittee on Antitrust, Competition Policy, and Consumer Rights.

Today we are pleased to have with us four distinguished witnesses to testify about whether the United States has a monopoly problem. We appreciate you taking the time to be with us today.

Americans have long held a certain aversion to bigness. Whether it’s the size of government or the size of industry, concentrations of wealth and power make Americans uneasy. Rightly so.

It’s therefore not surprising that we are currently engaged in a national debate about whether the United States has a monopoly problem. Virtually every week, a newspaper or magazine carries a story or editorial suggesting that the economy is now dominated by monopolists. In popular books and on cable news, pundits lament the curse of bigness, arguing that concentrated corporate power is hurting small businesses, increasing inequality, and undermining the republic.

In my view, much of this conversation is primarily about the growth of a few tech companies and their importance in many people’s everyday lives. These companies have changed the way people buy … well, virtually everything. They have changed how we consume news. They have changed how we communicate and with whom we communicate. It is no exaggeration to say that, over the past 15 years, companies like Facebook, Twitter, Google, and Amazon have fundamentally transformed life for many Americans.

Increasingly, people look at the conduct of these companies and worry. They worry about whether these companies protect user information. They worry that these companies fail to police conduct that occurs on their platforms. On my side of the aisle, many worry that these companies discriminate against conservative viewpoints.

I share those concerns. And I share the desire for solutions. Congress has many tools at its disposal. What I don’t share is the enthusiasm for using antitrust to address these problems.

Calls for stricter antitrust enforcement are often too abstract, and this applies beyond concerns raised about the tech industry.

First, much of the commentary fails to engage with the evidence for or against the proposition that the economy is dominated by monopolists. Instead, it takes that point as self-evident.

But in reality, people disagree on whether economic concentration has significantly increased over the years. They disagree over whether concentration reflects more or less competition. They disagree about whether antitrust policy could or should do more to address economic concentration, including whether conduct by large firms should be challenged because it affects competitors rather than consumers themselves.

Second, it is not enough to simply say that antitrust enforcement needs to be more aggressive. If antitrust has been too lax, we need to know specifics. What specific practices are occurring? How are these practices harming consumers? What specific remedies would prevent such abuses? We also need to know what specific deals have been allowed to proceed unchecked, and what the agencies failed to consider, despite the information that they alone had to analyze these transactions.

Third, antitrust is not a Swiss Army knife policy tool, capable of solving all kinds of societal ills.

To my mind, this fundamentally misunderstands the purpose and province of antitrust. Properly exercised, antitrust enforcement should police inappropriate exercises or accumulation of market power. In doing so, antitrust should serve the interests of consumers.

However, as we discussed at a prior hearing, some are calling not only for more antitrust enforcement, but for an expansion of the goals of antitrust, which would return us to a past in which overtly political considerations drove antitrust decisions.

We should be reluctant to do this. Congress has other policy tools to address many of these other concerns. For example, we know that efficiency-enhancing consolidation can result in job losses. One option is to block mergers based on their effect on employment. Another, better option, is to devise better policies to promote work. That’s my preferred approach.

More importantly, many of the concerns that some would like antitrust to address involve inherently political decisions that should be made by Congress rather than by the antitrust agencies or the courts. Efforts to add such considerations to antitrust policy are simply a means to circumvent the role of the legislature in favor of the subjective political goals of activists and unelected bureaucrats.

Weaponizing antitrust enforcement to police subjective concerns rather than the objective concern for consumers would have broad repercussions, especially when antitrust policy is wielded by one’s political opponents to achieve their own subjective aims.

Finally, I would add that before we consider changes to how antitrust policy is formulated and applied, we should keep in mind that these decisions will have serious consequences for the nation’s economy. This suggests that we show some humility about our understanding of how markets work, particularly before we condemn economic activity that appears to benefit consumers.

A final point: Of course large firms can and do act anti-competitively in some cases. Of course some mergers are anti-competitive and should be blocked. But as Professor Herbert Hovenkamp has cautioned, if we view the monopoly problem as political but fail to provide a roadmap for analyzing specific practices, it is a recipe not just for ineffectiveness, but also for capture by special interests. We should therefore keep our focus on the consumer, and demand that alleged anti-competitive behavior be explained in terms of how it impacts consumers.