Tom Hebert

Coalition Urges Senate Republicans to Reject Democrat Antitrust Trap

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Posted by Tom Hebert on Thursday, October 7th, 2021, 2:26 PM PERMALINK

Americans for Tax Reform and a coalition of 30 conservative and free market groups and activists joined a letter in opposition to the Senate Democrat plans to pass a package of European-style antitrust regulations. Even though the left labels this effort as “antitrust reform,” these bills are hardly antitrust bills. Instead, they are regulatory bills that give Biden bureaucrats sweeping new power to reshape the economy in service of their progressive social agenda.

You can read the full letter below or here:

Dear Senator, 

Recent media reports have indicated that Senate Democrats are crafting a package of European-style antitrust regulation. 

Some left-wing politicians are attempting to convince conservatives that weaponizing antitrust law is the solution to legitimate anger over Big Tech censorship. In reality, such politicians are not acting in good faith, and these bills would increase the political and government abuse of conservatives. 

Even though the left labels this effort as “antitrust reform,” these bills are hardly antitrust bills. They are regulatory bills that give Biden bureaucrats sweeping new power to reshape the economy in service of their progressive social agenda. 

We urge you to reject any proposal that politicizes antitrust law or gives unelected bureaucrats even more power to control the economy.

The Senate legislation follows a package of six antitrust bills spearheaded by Rep. David Cicilline (D-R.I.) and reported out of the House Judiciary Committee in June.

The Cicilline package targets so-called “covered platforms” with over 50 million users and market capitalization/net sales of over $600 billion. As soon as a company has the audacity to grow larger than this government-determined size, it gets whacked with a slew of onerous new regulations.

One bill would allow the government to break up targeted companies that operate a business line that a bureaucrat deems to be a “conflict of interest.” Another would prevent targeted companies from selling or providing private-label products in their marketplaces, depriving shoppers of products they value at a lower cost than name-brand products.

An additional bill would ban targeted companies from making any new mergers and acquisitions, choking off a critical pathway to success for innovative startups. To keep track of all these new restrictions, another bill sets up secret government committees to monitor the activities of each targeted company.

Clearly, none of these bills address conservative censorship concerns. Instead, the package is a brazen power grab that gives Biden bureaucrats sweeping new authority to regulate the economy. While these bills are clearly geared towards the technology sector, the left wants to regulate every industry “from cat food to caskets.” This is just the beginning.

If these bills became law, companies fearful of abusive antitrust litigation would pull punches when competing with rival firms, robbing shoppers of the low prices and best choices that open competition delivers. Putting innovative American companies in a Mother-May-I relationship with the government would squash innovation and kill economic growth as we dig out from the pandemic.

Conservatives have long believed that antitrust law should be a scalpel used to rectify consumer harm, not a sledgehammer that bureaucrats and trial lawyers can use to advance their progressive social agenda. The left’s antitrust “reforms” would do just that.

As negotiations continue on a Senate antitrust package, we urge you to reject any legislation that politicizes antitrust law or gives the Biden administration even more power. Doing so would harm shoppers, stunt economic growth, and increase political abuse of conservatives.

Sincerely, 

Grover Norquist
President, Americans for Tax Reform

Phil Kerpen
President, American Commitment

Brent Wm. Gardner
Chief Government Affairs Officer, Americans for Prosperity

Dick Patten
President, American Business Defense Council

Kevin Waterman
Chair, Annapolis Center Right Coalition Meeting

Robert H. Bork Jr.
President, Antitrust Education Project

Jim Martin
Founder and Chairman, 60 Plus Association

Saulius “Saul” Anuzis
President, 60 Plus Association

Andrew F. Quinlan
President, Center for Freedom and Prosperity

Jessica Melugin
Director of the Center for Technology and Innovation, Competitive Enterprise Institute

Chuck Muth
President, Citizens Outreach (Nevada)

Katie McAuliffe
Executive Director, Digital Liberty

Carrie Lukas
President, Independent Women's Forum

Heather R. Higgins
CEO, Independent Women's Voice

Steve Moore
Distinguished Visiting Fellow, Institute for Economic Freedom

Tom Giovanetti
President, Institute for Policy Innovation

Dr. J. Robert McClure
President & CEO, James Madison Institute

Rodolfo E. Milani
Founder & Chairman, Miami Freedom Forum

William O’Brien
Former Speaker, NH House of Representatives
Co-chair, New Hampshire Center Right Coalition

Doug Kellogg
Executive Director, Ohioans for Tax Reform

Tom Hebert
Executive Director, Open Competition Center

Lorenzo Montanari
Executive Director, Property Rights Alliance

Wayne Brough
Director of Technology & Innovation, R Street Institute

Mike Stenhouse
CEO, Rhode Island Center for Freedom and Prosperity

Bryan Bashur
Executive Director, Shareholder Advocacy Forum

Karen Kerrigan
President & CEO, Small Business & Entrepreneurship Council

Kerri Toloczko
Chair, SWFL Center Right Coalition

Patrick Hedger
Vice President of Policy, Taxpayers Protection Alliance

Rusty Cannon
President, Utah Taxpayers Association

Casey Given
Executive Director, Young Voices

Photo Credit: Martin Falbisoner, CC BY-SA 3.0 <https://creativecommons.org/licenses/by-sa/3.0>, via Wikimedia Commons


Radical Academic David Weil Will Kill West Virginia Franchises and Jobs

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Posted by Tom Hebert on Wednesday, September 22nd, 2021, 9:48 AM PERMALINK

Reports indicate that radical left-wing academic David Weil will soon receive a Senate vote on his nomination to serve as the Department of Labor's Wage & Hour Administrator. 

Weil, who previously held the post under President Barack Obama, does not deserve a second change to further his radical agenda. Weil is a staunch opponent of business models that allow tens of millions of Americans to put food on the table, including franchises, which Weil has called a "form of outsourcing." Franchises employ 7.6 million Americans across 733,000 establishments nationwide. 

Franchises in West Virginia, represented by Sens. Joe Manchin (D) and Shelly Moore Capito (R), would be hit particularly hard if Weil makes it over the finish line.

Franchises support nearly 45,000 West Virginia jobs, with over 4,800 establishments in the state. West Virginia franchises are responsible for $1.3 billion in payroll per year, $3.4 billion in economic output, and $1.9 billion in GDP. 

Ultimately, Weil did more than enough damage to American workers during his first tour of duty as Wage and Hour administrator. No Senator should feel the need to give Weil a second chance to test out his ivory tower theories on American workers. 

Photo Credit: International Labour Organization


ANALYSIS: ABC Test Breaks Biden's $400,000 Tax Pledge

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Posted by Tom Hebert, Alex Hendrie on Tuesday, September 21st, 2021, 3:30 PM PERMALINK

Democrats are attempting to backdoor parts of the PRO Act in their $3.5 trillion reconciliation spending blowout. 

As part of this effort, Democrats are attempting to include Sen. Ron Wyden's "Unemployment Insurance Modernization Act," in the reconciliation package. This legislation contains a California-style "ABC" test that would lead to the forced reclassification of independent contractors to employees, affecting the 59 million Americans that engage in some form of freelance work. 

According to ATR analysis, this is a violation of President Joe Biden's pledge to not raise taxes on any American making less than $400k.

Click here to view our full memo. 

Photo Credit: Gage Skidmore


Top FTC Aide Confirms The Left’s Antitrust Crusade Goes Beyond Big Tech

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Posted by Tom Hebert on Tuesday, September 14th, 2021, 2:08 PM PERMALINK

A top aide to Federal Trade Commissioner Lina Khan has confirmed the obvious – no industry is safe from the left’s antitrust crusade. 

In a May interview with The Marker, FTC attorney adviser Shaoul Sussman says that Congress has made its mind up when it comes to breaking up America’s largest companies. “All of these companies are going to be on the butcher’s table,” Sussman says, adding that “I’m not sure if they will be broken up in the next few years, but from the perspective of legislation, their judgment has been written.” 

Of course, the antitrust debate on Capitol Hill is far from over. The most recent antitrust legislation, spearheaded by Rep. David Cicilline (D-R.I.), limped out of a 29-hour markup with robust conservative and moderate Democrat opposition. A group of Democrats called on House Speaker Nancy Pelosi (D-Calif.) to slow down the Cicilline package, and House Majority Leader Steny Hoyer (D-Md.) said that the sloppily drafted legislation was far from ready for a vote on the House floor. 

In a subsequent interview published on Sunday, Sussman said that he hopes Congress makes sweeping changes to antitrust law that go beyond technology companies, specifically highlighting “monopolies in agriculture, health, and telecommunications” and calling for more “systemic legislation.” Sussman is currently one of Khan’s only antitrust advisers, and was conveniently exempted from the FTC’s agency-wide gag order because he gave the interview before he started advising Khan.

This is a stark confirmation that the left’s antitrust plot goes far beyond Big Tech. The left’s true goal is to give the Biden Administration sweeping new power to reshape entire industries. Instead of keeping antitrust law focused on harm to consumers, the left wants to weaponize it as a vehicle for their woke social agenda. 

As we head into the fall, Republican lawmakers should hold firm and reject any proposals that politicize antitrust law or give unelected bureaucrats even more power to control the economy. 

Photo Credit: Kurt Kaiser, CC0, via Wikimedia Commons


Far-Left Rep. Jayapal Forecasts Harmful Senate Antitrust Agenda

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Posted by Tom Hebert on Monday, September 13th, 2021, 12:22 PM PERMALINK

In an interview last week, far-left Rep. Pramila Jayapal (D-Wash.) forecasted possible Senate antitrust companion legislation to the Cicilline antitrust package that was drafted with little input from rank-and-file Republican members. 

The left’s antitrust agenda would vastly empower unelected Biden bureaucrats and screw up the goods and services Americans use every day. Senate Republicans should hold firm and reject any proposals that would politicize antitrust law. 

Jayapal talked at length about H.R. 3825, the “Ending Platform Monopolies Act,” legislation that would force the breakup of a company that operates a line of business that a bureaucrat determines is a “conflict of interest.” 

H.R. 3825 would ban targeted companies from producing private-label products and selling them on their own marketplaces, depriving shoppers of access to products they value that are often cheaper than brand-name goods. This makes just about as much sense as banning a grocery store from selling generic cereal. Raising prices on everyday household items is the last thing American families need as they attempt to dig out from under the pandemic. 

During the interview, Jayapal confirms that the left’s full-court, government-wide effort to weaponize antitrust law is in full swing: 

"They are supportive, actually. And you might have seen that they appointed some of our best people that we were pushing, (FTC Chair) Lina Khan, (National Economic Council deputy director) Bharat Ramamurti, (special assistant to the president) Tim Wu, many others. And even the Attorney General for antitrust, (Jonathan Kanter) great choice. We’re excited about him. So it’s looking very good."

Additionally, Jayapal confirms that the Senate bills will have the same language as the House bills, and that Democrat lawmakers are looking for Republican cosponsors: 

"The trajectory will be that the Senate will introduce the same House bills, ideally with bipartisan co-sponsorship again, and then we will try to move the bills through the house as quickly as we can. Obviously, we’re focused on reconciliation now. But my hope is that within the next three to six months, we could move those bills through the House."

Senate Republicans should stay far, far away from companion legislation that mirrors the Cicilline package. The six antitrust bills limped out of a 29-hour House Judiciary markup with little conservative support. The package does absolutely nothing to stop Big Tech censorship of conservatives. Instead, it gives unfettered power to Biden bureaucrats to play smash mouth with American companies and advance their woke social agenda. 

As we head into the fall, Republican lawmakers need to hold the line and reject any change to antitrust law that would give more power to the Biden Administration. Doing so would stunt our economic growth and increase government abuse of conservatives. 

Photo Credit: AFGE, CC BY 2.0 <https://creativecommons.org/licenses/by/2.0>, via Wikimedia Commons


FTC Letters Put American Companies In "Mother-May-I" Relationship With Unelected Bureaucrats

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Posted by Tom Hebert on Tuesday, August 3rd, 2021, 7:45 PM PERMALINK

The Federal Trade Commission has started sending letters warning certain companies engaged in mergers and acquisitions (M+A) to proceed “at their own risk” until the FTC weighs in, according to a blog post from Bureau of Competition Director Holly Vedova. 

This is yet another part of FTC Chair Lina Khan’s plan to put every company in a “Mother-May-I” relationship with the government. These letters will only serve to dissuade companies from engaging in future M+A activity, a massive driver of innovation and economic growth. 

The Hart Scott Rodino Act of 1976 requires companies engaging in M+A activity above a certain threshold to notify the FTC and Department of Justice, the two agencies that enforce antitrust law, before the transaction is consummated. After a company provides the FTC and DOJ with a detailed filing with information about the transaction, the agencies have 30 days to determine if the transaction is anticompetitive in nature. 

If a bureaucrat determines that the M+A activity under review will negatively impact competition in a relevant market, the FTC or DOJ can request more information or materials from the filing parties, also known as a “second request.” Generally, the reviewing agency then has another 30 days to examine the new information once the company fulfills the second request. 

If the reviewing agency believes that the transaction will harm competition, it can file an injunction in federal court to prevent the transaction from being consummated. If the reviewing agency does not challenge the transaction before the waiting period expires, the transaction goes ahead unimpeded.

In the letters, the FTC is warning companies against making deals even if the agency does not challenge the transaction before the waiting period expires. The letters threaten legal action and “aggressive enforcement” of antitrust law against companies that consummate a transaction after the waiting period expires and before the FTC weighs in. This could lead to deals being delayed for months or even years as companies wait for an FTC bureaucrat’s approval. 

Not only will the FTC’s aggressive posture likely lead to companies abandoning current pending deals, it will dissuade firms from engaging in innovation-driving M+A activity in the future.

Mergers generally increase efficiency that reduces production costs, leading to lower prices and increased output for shoppers. Acquisitions allow larger firms to quickly deliver innovative new products to consumers because they have the scale and infrastructure to do so. More than half of all startups say that their most realistic long-term goal is to be acquired by a larger firm, providing a key incentive for entrepreneurs to assume the massive risk that comes with starting a new company. M+A activity ultimately benefits all Americans with lower prices and greater access to innovative products and services. 

Ultimately, Khan’s tenure so far has created an enormous cloud of uncertainty for American companies, exactly the opposite of what the economy needs as we attempt to rebound from a pandemic-induced recession. These letters are just the latest example of Khan’s partisan weaponization of the FTC and will have a massive chilling effect on current and future M+A activity. 


Sen. Mark Kelly's Support for PRO Act's "Overall Goals" Spells Doom for Arizona Workers

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Posted by Tom Hebert on Thursday, July 22nd, 2021, 9:00 AM PERMALINK

Senator Mark Kelly (D-Ariz.) told a reporter that he is open to passing parts of the anti-worker “Protecting the Right to Organize” (PRO) Act through budget reconciliation and supports the "overall goals" of the bill. The PRO Act would impose a nationwide ban on Right to Work, forcing every Arizona worker to join a union whether they want to or not. 

Kelly has been one of three Democratic Senate holdouts on the PRO Act. If Kelly reverses course and supports the PRO Act, it would be a devastating blow to Arizona’s freelancers and franchises. 

The PRO Act would dismantle the franchise business model by expanding the definition of “joint employer,” increasing corporate control over mom-and-pop independent franchise locations. Franchises employ 7.6 million Americans nationwide. 

Arizona has 14,500 franchise businesses that support 153,300 jobs. Franchises provide $5.5 billion a year in payroll and contribute $8.2 billion a year to Arizona’s economy. 80 percent of Arizona voters view franchises favorably, and 71 percent of Arizona voters say that franchise businesses are a part of their everyday lives. 30 percent of franchises are minority owned, as opposed to 20 percent of non-franchised businesses. 

The PRO Act also endangers Arizona’s freelancers by codifying an onerous three-step test that would force independent contractors to reclassify as W-2 employees. Independent contractors come in all shapes and sizes – the Uber you took this week had a freelancer behind the wheel, and your favorite Etsy store is run by an independent contractor. Medical transcriptionists, court stenographers, nurse practitioners, comedians, ballroom dancers, interpreters, and architectural designers often work as freelancers.

Freelancers overwhelmingly prefer the freedom and flexibility of freelancing to the rigidity of traditional employment. According to the Bureau of Labor Statistics, fewer than one in 10 independent contractors want to reclassify as W-2 employees. The PRO Act would jeopardize the livelihoods of the 59 million Americans that engage in freelance work. 

Finally, the PRO Act would endanger the privacy of every Arizona worker. The PRO Act forces employers to hand over sensitive employee contact information – including shift information, home addresses, email addresses, and phone numbers – to union bosses during organizing efforts. This would allow union bosses to intimidate Arizona workers at home or workplaces at all hours of the day. 

If Kelly votes for the PRO Act, union bosses would win and Arizona workers would lose. 

Photo Credit: Gage Skidmore


Jonathan Kanter Would Abandon Consumer Welfare Standard As Antitrust Top Cop

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Posted by Tom Hebert on Tuesday, July 20th, 2021, 5:00 PM PERMALINK

President Joe Biden has nominated antitrust attorney Jonathan Kanter to lead the Department of Justice’s Antitrust Division. Kanter, who has slammed the long-held consumer welfare standard as “judicial activism,” is the wrong choice to lead the Antitrust Division. 

A chorus of leading Democrats immediately praised Kanter’s nomination. Sen. Elizabeth Warren (D-Mass.) tweeted that Kanter has been a leader in “[strengthening] competition in our markets.” Left-wing academic Zephyr Teachout said that Kanter is an “extraordinary choice.” Reps. Jerry Nadler (D-N.Y.) and David Cicilline (D-R.I.), leaders in the House effort to weaponize antitrust law, also praised his nomination. 

From day one, the Biden Administration and the Democrat Party have not dealt in good faith on antitrust policy, especially with nominations. Lina Khan was confirmed last month in a 69-28 vote, with 21 Republican Senators voting in favor of her confirmation. 

Khan’s confirmation was an unprecedented bait-and-switch operation. Biden nominated Khan to serve as an FTC commissioner, not as chair, and withheld that information throughout the entire nomination process. Hours after the confirmation vote, Biden elevated Khan to FTC Chair, blindsiding Republicans. 

Given this lack of transparency and good faith, no Republican should vote to hand the Biden administration another antitrust victory.  

The DOJ Antitrust Division shares antitrust enforcement authority with the FTC, and Kanter has called Khan a leader of a “new golden age of antitrust enforcement.” This is troubling given that Khan has worked aggressively to shed all bipartisan limits on the FTC’s antitrust authority with barely a month on the job. 

Additionally, Kanter is a longtime opponent of the consumer welfare standard that has undergirded antitrust law for over four decades. Under the standard, antitrust cases are generally only brought against companies that are harming consumers through tangible effects like high prices, reduced product quality, or lack of choice. Antitrust enforcers must also consider whether there is a procompetitive justification for the business conduct in question, and whether the conduct results in countervailing benefits to consumers and competition. 

The consumer welfare standard protects the competitive process, not individual competitors in a marketplace from being beaten by rival firms. This neutral application of antitrust law fosters the robust competition that delivers better prices and better choices for all Americans.

Kanter would abandon the consumer welfare standard, which developed through decades of common law and expert consensus, in favor of a European-style antitrust approach that ignores harm to consumers and focuses on harm to inefficient competitors. Kanter has slammed the consumer welfare standard as “judicial activism” and “central planning,” and argued that courts should not consider economic efficiency when ruling on antitrust cases. 

Antitrust law before the consumer welfare standard was an incoherent mess, and all manner of routine business conduct was considered presumptively unlawful. Enforcers attacked companies purely for their size while ignoring benefits they delivered to American shoppers. Philosopher-king judges handed down incoherent rulings designed to punish political enemies or reward political allies. Famously, Supreme Court Justice Potter Stewart remarked that the only consistency he could find in antitrust law was that “the government always wins.” 

The left wants to destroy the consumer welfare standard precisely because it is a bulwark against judicial activism. Without the standard in place, antitrust law would revert back to the broken tradition of the mid-20th century. Companies afraid of abusive antitrust litigation would pull their punches with competing with rivals, robbing us of the robust competition that delivers the best choices and lowest prices for all Americans. Government bureaucrats would win, American shoppers would lose. 

If confirmed, Kanter would work hand-in-glove with Lina Khan to attack the consumer welfare standard and turn the clock back decades on antitrust law. For these reasons, no Republican should vote to confirm Kanter.

Photo Credit: New America


$3.5 Trillion Democrat Spending Blowout Contains Anti-Worker PRO Act

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Posted by Tom Hebert on Thursday, July 15th, 2021, 10:30 AM PERMALINK

The $3.5 trillion spending blowout announced by Senate Democrats will include the job-killing “Protecting the Right to Organize Act,” according to media reports. 

The PRO Act would benefit Big Labor at the expense of the American worker. The PRO Act’s inclusion in the spending blowout gives further insight into the Senate Democrats’ proposal, the details of which are below: 

  • The PRO Act nullifies Right to Work laws across the country, which protect 166 million Americans in 27 states. Right to Work laws prevent employers from being able to force workers to join a union as a condition of employment. If Right to Work laws were banned, every American worker would be forced to choose between paying a union boss and putting food on the table.

  • The PRO Act enacts a stringent three-step test that would force independent contractors to reclassify as W-2 employees. This would jeopardize the livelihoods of the more than 59 million Americans that engage in freelance work.

  • Codify the NLRB’s disastrous 2015 Browning-Ferris Industries decision that muddled the definition of “joint-employer,” overturning decades of labor law precedent. If implemented, this would decimate the franchise business model that employs 7.6 million Americans in 733,000 locations.

  • Change union elections to allow union bosses to collect cards from workers to demonstrate support for the union, rather than holding a secret ballot election. If labor bosses fail to unionize a workplace via a secret ballot election, the union can appeal to the NLRB for a second chance to unionize the workplace.

  • Violate worker privacy by forcing employers to give union organizers sensitive employee contact information, including home addresses, cell phone, shift information and landline numbers, and email addresses. This would allow union bosses to intimidate workers into joining unions at homes or workplaces. 

In addition, the PRO Act would increase costs for employers, harming businesses and consumers. According to the American Action Forum, the independent contractor provision would impact 8.5% of GDP and cost between $3.5 billion and $12.1 billion annually. The joint employer provision would cost between $17.2 billion and $33.3 billion annually for the franchise business sector and affect 44% of private sector employees. Finally, the provision that restricts employers from replacing strikers permanently could cost employers an additional $1.9 billion every year.

The PRO Act is a return on the investment of the hundreds of millions of dollars that Big Labor poured into the Democrat party's campaigns to capture the House, Senate, and White House. Employers will be able to force workers into unions as a condition of employment, and union bosses will have access to personal information to bully workers into compliance. Tens of millions of independent contractors would face losing their jobs.


Biden EO Kills Competition In The Name Of Saving It

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Posted by Tom Hebert on Tuesday, July 13th, 2021, 2:06 PM PERMALINK

Last week, President Joe Biden issued an executive order containing 72 new government mandates designed to spur competition in the American economy. 

The Biden EO gives a blueprint for agencies to target leading American industries with crippling new regulations. Instead of encouraging competition, this EO will kill competition by allowing Biden bureaucrats to reshape the economy in service of their liberal social goals. 

One of the EO’s stated goals is to address the supposed rise of monopolization in the American economy. While the left claims that market concentration is snuffing out competition, the data shows that our economy remains extraordinarily competitive. This EO is a solution in search of a problem. 

According to Census data compiled by the Information Technology and Innovation Foundation, only 4 percent of U.S. industries are highly concentrated, and the share of low-concentrated industries grew by 25 percent from 2002 to 2017. Industries with low levels of concentration were responsible for 80 percent of business output in 2017. 

The EO contains several antitrust provisions that would force American companies into a “Mother-May-I” relationship with the federal government.

One provision would increase government scrutiny of routine mergers and acquisitions. The EO hones in on so-called “killer acquisitions” made by technology companies, alleging that dominant firms are strangling small startups in the cradle to avoid competition. 

This misguided view ignores that M+A activity is a massive driver of economic growth and innovation. While technology companies have engaged in hundreds of acquisitions in recent years, only a few deals have come under scrutiny. American tech companies lead the world in R&D spending, not the behavior you'd expect from a monopolist unafraid of robust competition. 

Acquisitions allow larger firms to quickly deliver innovative new products to consumers because they have the scale and infrastructure to do so. More than half of all startups say that their most realistic long-term goal is to be acquired by a larger firm, providing a key incentive for entrepreneurs to assume the risk that comes with starting a new company. M+A activity ultimately benefits all Americans with lower prices and greater access to innovative products and services. 

The EO also targets “self-preferencing,” where platform companies promote their own private-label products next to name-brand products in their marketplaces. This is not a business practice endemic to the tech industry. Brick-and-mortar retailers promote generic goods on shelves next to brand-name goods, or with promotional devices like coupons, end-caps, and window displays. 

Banning platform companies from promoting their private-label goods would take away products and services that consumers value. Given that generic products are usually cheaper than brand-name goods, such a ban would raise the cost of basic household items for American families. Prohibiting Amazon from selling AmazonBasics products is about as ludicrous as banning Costco from selling their popular Kirkland products.

To implement the ban on self-preferencing, the Biden EO calls on the Federal Trade Commission to establish new rules banning “unfair methods of competition on internet marketplaces.” This is curious timing given that the Democrat-controlled FTC just voted to rescind bipartisan limits on its UMC authority. 

Ultimately, the competition EO is window dressing. None of its recommendations have the force of law, but the EO does reveal a few things. 

First, the left is engaged in a full-court, government-wide press to weaponize antitrust law in service of progressive social goals. The antitrust recommendations in this EO closely mirror the sloppy antitrust package the House Judiciary Committee marked up last month. Senator Amy Klobuchar (D-Minn.) is working on Senate companion bills to the HJC package and has an antitrust package of her own. Newly-anointed FTC Chair Lina Khan has already smashed bipartisan norms in her first few weeks on the job, and will certainly work overtime to expand her agency’s power to promulgate and enforce new antitrust policy at any cost. 

Second, the left’s antitrust plan will destroy the consumer welfare standard that has undergirded antitrust law for over four decades. Under the consumer welfare standard, antitrust enforcers only act against companies that are harming consumers through tangible effects like higher prices, lack of output, or reduced quality or innovation. The standard prevents unelected bureaucrats or judges from weaponizing antitrust law and disregarding consumer harm to advance unrelated social goals, precisely why the left wants to destroy it. 

Third, the left’s antitrust plan goes way beyond Big Tech. The EO hits industries of all stripes, including finance, pharmaceuticals, agriculture, meat processors, real estate, alcohol manufacturers, railroads, and airlines. 

If the left succeeds, American companies in every industry will lose their competitive edge both in the United States and abroad. Companies fearful of abusive antitrust litigation will pull their punches when competing with rival firms, robbing us of the robust competition that delivers the best choices and lowest prices for all Americans. Reverting to a European-style competition policy would deliver Europe’s low levels of innovation and economic growth. The heavy hand of government will crush successful companies with costly regulations, which historically has driven whole industries (like railroads and airlines) to the brink of extinction. 

Ultimately, the Biden EO is the wrong approach to competition policy as we grapple with runaway inflation and an economy still trying to recover from the pandemic-induced recession. If the ideas in the competition EO were implemented, policymakers would kill competition in the name of saving it. 

Photo Credit: Gage Skidmore


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