The lame duck Congress is preparing a number of presents to leave under the Christmas tree of the American people. But most (if not all) of these presents are actually lumps of coal hidden behind fancy wrapping paper and pretty bows.
For example, the lame duck Congress may consider the misnamed “American Innovation and Choice Online Act” (S. 2992). This bill would give government power to tell Big Tech how they must treat third-party vendors who use their sites, thus disincentivizing these companies from allowing small businesses to use the Big Tech platforms to reach new customers. For more on this bill see here, here, and here.
Another bad antirust bill the Senate may consider in the lame duck is the Merger Fee Modernization Act (H.R. 3843). This legislation, which passed the House last summer, increases the mandatory fees business planning a merger or acquisition must pay if the transaction requires pre-approval from the Federal Trade Commission (FTC) and the Justice Department. It also indexes the fees to inflation.
According to the Congressional Budget Office (CBO), even though the increased fees only apply to mergers and acquisitions valued at over $1 billion, the bill would increase federal revenue by $1.4 billion over the next 10 years. The majority of this new revenue would likely go to the FTC and the Justice Department’s Antitrust Division. Increasing funding to federal agencies like the FTC is never a good idea. After which, there are two reasons why it's bad timing for extra revenues.
The first reason is obviously that the US economy is suffering from price inflation as well as supply chain problems caused by the government’s universally derided shutdown of most business for almost a year. Secondly, and perhaps more significant, is that the new revenue will be used to advance the radical agenda of FTC commissioner Lina Khan. Khan is one of the most prominent members of a movement to adopt, as she put in a memo to the FTC staff, a “holistic approach” to antitrust law.
Khan elaborated on her “holistic” approach to antitrust in her speech before the far-left Law and Political Economy conference. In her talk Khan called for government officials to use antitrust and other laws to “direct specific economic outcomes.” In other words, antitrust laws are to be transformed into an instrument of central planning.
Khan has been aggressive in working to use her authority to shape economic outcomes. Under her tenure, the FTC has revised its approach to antitrust to enable the agency to bring more cases in more areas using more novel legal theories. In the nearly two years since Khan became FTC Chair, the agency has filed a record number of lawsuits When the FTC does not challenge a potential merger in court, the regulatory body makes a “second request” for information from the involved companies. These requests for additional information and documents can delay regulatory approval of mergers. In some cases, the delay can be enough to kill what could have been a profitable deal for investors, workers, and consumers.
Khan and her allies do not expect to win every—or even the majority—of these lawsuits. Instead, the woke left’s goal is to win as many cases as possible while discouraging “unfair” mergers and similar actions with the threat of costly litigation. Using this strategy will enable Khan to advance via enforcement a progressive agenda that would never get through a divided Congress.
One would expect legislation giving more money and power to interventionists like Khan would be opposed by Republicans—especially conservative Republicans. Yet 39 House Republicans—including some of the most conservative members of the House—voted for it. These conservatives voted for it because they have bought into the falsehood that the only way to protect free-markets and even democracy from Big Tech is by enhancing big government, especially big government empowered to use antitrust to direct specific economic outcomes.
Some conservatives also supported the bill because the House leadership attached the State Antitrust Enforcement Venue Act (HR 3460). As its name suggested, this legislation allows state attorney generals to avoid having antitrust lawsuits consulted and moved to a single jurisdiction. This means that companies will have to defend numerous lawsuits in different jurisdictions, increasing the odds that they will be found guilty by one rogue judge or jury. Even if corporations win every state suit, they will still lose because they will have wasted millions defending frivolous lawsuits brought by politically ambitious state attorneys general.
Conservatives should not allow their anger at Big Tech to turn them into Khanservatives. Instead, they should work to sperate tech and state, so that tech companies no longer fear the wrath of (Lina) Khan.
