In my last blog, I spoke about consumer welfare.
This is the concept, popularized by the late Robert Bork who, as a judge, was skeptical of the notion that anti-trust laws should be invoked simply on account of bigness. Bork was more concerned with whether the “big” monopolist was serving (or not serving) consumer welfare by its behavior.
Antitrust lawyer Mark Epstein recently noted in a Wall Street Journal column that President Trump, in his campaign, promised to use antitrust laws against oligopolies supposedly, candidate Trump warned, threatening “a free flow of information and freedom of thought.”
But Epstein pointed to a 2018 speech by Trump’s antitrust chief Makan Delrahim, in which Delrahim seemed to oppose antitrust enforcement beyond consumer welfare. Delrahim in that speech last year worried about partisan antitrust prosecution with “subjective enforcement” based on prosecutors “own perceptions of what is good and bad for our democracy.”
Indeed, opponents of President Trump — Bernie Sanders, Elizabeth Warren, and so many others –are campaigning on a platform to break-up the tech giants. These large companies, despite their size, are hardly in a “mature” industry. The ebb and flow is constant. As I noted in another blog, there are almost daily announcements of new technology, new products, new adaptation. Despite the massive size of these companies, they compete in a market of “disrupters.”
But in the current political environment that includes a populist revival, in which redistributing income becomes an end in itself, Jeff Bezos and Mark Zuckerberg are easy targets as what in another century were viewed as “malefactors of wealth.” Their detractors see Bill Gates, Jeff Bezos, Mark Zuckerberg and other high-techie mega-billionaires as today’s “robber barons.”
Epstein notes that some antitrust enforcers want to define consumer-welfare to include much more than price and service, but even “free speech.” In others words, do Google and Facebook operate in such a way as to foster or inhibit “responsible” and “diverse” free speech? This is a “catch-22.” If they allow “hate speech,” then they are criticized. If they try to censor, then they also are criticized. What a slippery slope, when FB’s internal censors, with their own political views and prejudices, decide what should or should not be on FB. Perhaps even worse with youtube, which has censored viewpoints that are merely controversial, but hardly hateful.
Who decides how these huge corporations’ role in “speech” serves the consumer welfare?
Surely, we do not want Microsoft or Apple, or Amazon , or Google, or Facebook, or others, tilting Democrat or Republican, or toward whichever party is in power, to get government favors or avoid government harassment. It’s challenging enough to decide whether these giants use their power to exclude competitors. It’s even more problematic to assume we have a crystal ball and can know what the future holds, in terms of competition we cannot even foresee. By the time politicians figure out exactly what they want to do, to pressure the Department of Justice and Federal Trade Commission to do, the “solutions” by virtue of antitrust breakups or all sorts of regulations, whatever they push for — may be obsolete, or worse, it may hurt consumers.
I wish we could keep the politicians out of all this.