Busted

How Antitrust Law Lost Its Bite
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Tim Wu’s The Curse of Bigness is a short and readable book with a compelling message. American antitrust policymakers and judges have let large firms stifle competition. They have done so on the basis of simplistic theories first proposed by right-wing ideologues and then gradually normalized by an intellectually moribund establishment. They have neglected the lessons of history, which teaches that monopolizing firms end up immiserating workers and controlling the politicians and agencies that should be controlling them. The sooner relevant agencies, such as the U.S. Department of Justice and the Federal Trade Commission, restore stronger antitrust law, the faster we can exit our new gilded age and broker a fairer future.

Wu joins a rising tide of public intellectuals now trying to rescue U.S. antitrust from the brink of obsolescence. The field, at present, is locked in a death spiral. Leading antitrust legislation is old and notoriously vague. Once interpreted broadly, antitrust became a victim of its own success once firms began demanding to know exactly when they risked being broken up by regulators.

By the 1960s, University of Chicago academics began providing a simple answer: in most cases, antitrust authorities should intervene only if they can demonstrate a business arrangement would raise prices, reducing “consumer welfare.” If a massive firm raises prices or reduces output, its defenders often argue that, since markets are in theory contestable, things will eventually sort themselves out and consumer welfare will rise. Another defense, common in “innovation markets,” is that high prices and profits are necessary to spur research. In other words: heads, the monopolist wins; tails, its challenger loses. There is always a rationale for laissez-faire.

This opportunistic framing helped legions of lawyers convince courts and agencies to raise the standard of proof necessary for government intervention to an almost impossibly high level. Firms now employ a cottage industry of economists to sing the praises of planned mergers and acquisitions (for big paychecks), even as empirical researchers continually document the failure of past corporate tie-ups to reduce prices.

In many industries, the Chicago School revolution in antitrust has been an abject failure on its own terms. For example, consumers have paid more for internet access in the United States than in many other countries with a more competitive—or better regulated—telecommunication landscape. But the real victory of advocates of big business has been setting the terms of the debate. Courts judging antitrust cases fixate on the bottom line, but bigness in business has negative consequences beyond price. Once banks get too large, they are “too big to fail,” and act accordingly, recklessly piling on risk because their counterparties count on a bailout. Concentrated airlines have made flying a miserable experience. And just as nineteenth-century cartoonists marveled at the power of the Copper Trust and the Oil Trust, we have only begun to reckon with the consequences of the Social Trust (Facebook/WhatsApp/Instagram—all controlled by Mark Zuckerberg) and the Search Trust (Google).

 

Antitrust revivalists must engage in the types of messaging, activism, and meme warfare that have empowered big businesses’ political patrons.

Like Wu’s previous book The Master Switch, The Curse of Bigness takes history seriously, to good effect. He reminds us of how contingent the American antitrust tradition is. Teddy Roosevelt, widely credited as a “trustbuster” extraordinaire, came to power only after the assassination of William McKinley—a far more business-friendly Republican. Had McKinley’s surgeon found the bullet that caused the gangrene that ultimately took his life, the United States may never have come to grips with the trusts then strangling its economy. The same goes for the modern decline of antitrust. Had Democrats of the 1970s and 1990s listened a bit more to union leaders and less to the beneficiaries of Chicago-style antitrust, America might have developed a more robust immunity to corporate gigantism. Instead, the Democratic Party by and large chose to ride that tiger, taking advice (and campaign contributions) from neoliberal progressives in finance and technology firms.

Wu sets out clear and compelling proposals for a better approach. Government lawyers need the courage to take on big fish rather than small fry. Like Jesse Eisinger’s The Chickenshit Club (that’s what James Comey called government lawyers who take on only small and easily winnable cases), The Curse of Bigness promotes a government unafraid to match wits with the leading firms of our age. Wu promotes the breakup of the Social Trust, urging the Federal Trade Commission to get serious about both privacy and competition law by dividing up Facebook, Instagram, and WhatsApp.

Like current Federal Trade Commissioner Rohit Chopra (perhaps the sharpest and most energetic holder of that post in the past fifty years), Wu promotes rules over the vague standards that now mire antitrust cases in years of litigation and battles of experts. For example, rather than hearing out endless expert opinions on the likely consequences of a major acquisition for an industry, authorities might consider a “per se ban on mergers that reduce the number of major firms to less than four.” An earlier book by Walter Adams and James W. Brock, The Bigness Complex, suggested that more firms may be necessary in key industries, so the details are up for debate. But the key challenge is to get policymakers to take the problem seriously, step up, and act to disperse increasingly concentrated economic power.

Wu gives us a clear sense of the scale of the problem, which he describes as a “threat to the Constitutional order.” He offers an agenda for reform that is both bold and realistic—easily achievable if there is political will in the Democratic Party, and if it regains the type of power it held in 2009 and 2010. But those are two big ifs. The question now is whether we can still recover from the errors of past antitrust (non)enforcers, or whether those have set in motion a self-reinforcing cycle of cozy business-government relationships. On this front, Wu offers little guidance, but his book suggests two challenges for an emerging “Neo-Brandeisian” movement, which aims to bring the Jeffersonian vision of former Supreme Court Justice Louis D. Brandeis to the business landscape of the present.

The first challenge is to make antitrust a political issue—that is, to connect the personal problems of individuals to corporate giantism. Almost everyone has a cable horror story to share, but few connect the cable companies’ utter indifference to customer service to their monopoly or near-monopoly status. Nor are workers now likely to blame stagnant wages on increasingly monopsonistic labor markets. The right has weaponized catchphrases like “right to work” and “death tax” in hundreds of focus groups. Antitrust revivalists must do the same, engaging in the types of messaging, activism, and meme warfare that have empowered big businesses’ political patrons.

The second and more immediate challenge is to support the politicians whose staffs actually listen to neo-Brandeisians. Given the vortex of attention sucked up by the Trump Show, antitrust will likely be a second- or third-tier issue in the next few elections. Politicians will signal that they care about it, if at all, by tapping advisors who have done innovative work in the area. The antitrust policy of a candidate who elevates someone like Lina Khan (a rising star already profiled in the New York Times and Washington Post) will be far more enlightened than one who listens to the acolytes of Herbert Hovenkamp (a fixture of the antitrust establishment who has lamented that Khan’s approach would impose “hysterical costs” on the economy, and who chose to publish an attack on “progressive antitrust” right after progressives had been routed in the 2016 elections). Wu, no stranger to politics, will certainly have ideas along these lines as well. His work should inform both the Federal Trade Commission and Department of Justice once they decide to undo the damage wrought by the bold conservative academics who shaped so much policy at both agencies under Reagan, the Bushes, and Trump.

I once gave a talk on the power of big technology companies at a meeting of conservatives. While the hosts were welcoming and friendly, the audience question session turned hostile almost immediately. A person in the back of the room declaimed, “There’s only one thing worse than government deciding how big businesses ought to get, and that’s academics doing it.” But conservatives let Chicago School professors do exactly that. If antitrust is to have a future, we must empower a new generation of experts. Thoughtful academics and activists like Wu and Khan translate the personal suffering of those harmed by monopolies into durable policies that will prevent further abuses. The Curse of Bigness shows with clarity and precision what such an agenda would look like.

The Curse of Bigness
Antitrust in the New Gilded Age

Tim Wu
Columbia Global Reports, $14.99, 154 pp.

Published in the March 22, 2019 issue: 

Frank Pasquale, author of The Black Box Society (Harvard University Press), is presently editing a book on the policy implications of Laudato si'.

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