Unleashing State Attorneys General Is the Wrong Way to Punish 'Big Tech'
(Drew Angerer/Pool via AP)
Unleashing State Attorneys General Is the Wrong Way to Punish 'Big Tech'
(Drew Angerer/Pool via AP)
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Colorado Rep. Ken Buck and Utah Sen. Mike Lee are two of the most reliable defenders of limited government and free markets in Congress. That’s why is it odd that they have teamed up to introduce the State Antitrust Enforcement Venue Act (HR 3460/S. 1787). The heart of this bill is that it exempts antitrust suits brought by state attorneys general from the Judicial Panel on Multi District Litigation (JPMD) process.

The JPMD allows lawsuits against the same defendant and based on the same set of facts to be consolidated into one case and transferred to one jurisdiction. This system promotes efficiency by ensuring that courts are not cluttered with multiple versions of the same lawsuit.

Lee, Buck, and their allies say subjecting antitrust lawsuits brought by state attorneys general to the JPMV delays adjudication of the case — thus allowing guilty companies to extend the time they profit from violating antitrust laws.  This argument ignores the harm to our economy and to the justice system by allowing multiple versions of the same case to proceed in different states.

It creates jeopardy … a kind of double jeopardy, if you will.

If a company was found guilty of antitrust violation in a state court, it would have to obey the judgment, even if it had been found not guilty in other states. So, the Buck-Lee bill could result in a single state judge overriding the decisions of all other state and federal judges.

The conservative House Freedom Caucus has not only endorsed the Lee-Buck bill, but it has also thrown its weight behind Buck’s discharge petition. This petition, if passed by a majority, would force House leadership to hold a floor vote on the measure. Worse, the bill has already passed the Senate – without even a vote!

Supporters of the bill reveal their true intentions when, as Representative Buck does, they complain that the JPMD forces state attorneys general to “give up their homefield advantage.” If they were interested in increasing the fairness and efficiency of the litigation system, and not tilting the playing field toward state governments, they would not care which side had “homefield” advantage.

Anti-big tech conservatives seem to have forgotten the late P.J. O’Rourke’s admonition that giving money and power to government officials is like giving whiskey and car keys to teenaged boys. State attorneys general are unlikely to only use the authority granted them by Ken Buck and Mike Lee to go after the big tech companies that have deplatformed conservatives. If this bill becomes law, there is no doubt it would also be used against businesses looked on favorably by Buck, Lee, and their allies.  One potential target could be any one of the new social media companies that are offering “content moderation” — free platforms to dissenters whose content is unwelcome by the current dominant platforms. Ambitious progressive attorneys general could also attempt to bring antitrust cases against firearms manufacturersfast food restaurantsauto companies, and any other businesses that find themselves in the woke mob’s crosshairs.

The dramatic stock losses suffered this year by Facebook and Amazon, as well as Elon Musk’s on-again-off again purchase of Twitter, show that market forces can — and will — limit big tech’s dominance. Conservatives like Mike Lee and Ken Buck should stop allowing their understandable fear and loathing of big tech to them abandon their free-market, limited government principles.

Norm Singleton is a senior fellow at the Market Institute. 

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