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Reason, Not Resentment, Should Inform Antitrust Legislation

Reason, Not Resentment, Should Inform Antitrust Legislation

May 26, 2022

Psychologists have long argued that we shouldn’t make decisions based on emotion. Doing so usually leads people astray. Passing legislation is no different. Animus and resentment are no substitute for analysis and reason. Yet some on both sides of the aisle appear to have given in to the former regarding antitrust legislation.

Antitrust laws are more than a century old, but Congress has never been so close to substantially changing them. However, some members of Congress may be motivated more by anger than reason in reforming antitrust and, in so doing, hurt the economy and consumers.

Congressman Swalwell (D-CA) has argued that some Republicans may support these antitrust bills precisely because they are “punitive.” Just as Florida’s Governor DeSantis aims against Disney for political reasons, some Republicans appear to uncharacteristically support heavy-handed government antitrust legislation because of their belief that some leading Internet companies have a bias against conservative voices. They support the bills to weaponize antitrust to send a message to what they see as “leftist” companies. Whether or not their concerns are legitimate, using the law and federal agencies to go after companies whose views members do not like is not consistent with the American rule of law tradition. If they believe that these companies are censoring conservative speech, they should focus on that issue, not use antitrust as a weapon to say, “we told you so.”

But Democrats are not immune to emotion trumping reason. Some progressives support these bills under the populist narrative of “big-is-bad.” Congresswoman Pramila Jayapal (D-WA), chair of the Congressional Progressive Caucus and sponsor of the antitrust bills, stated: “From Amazon and Facebook to Google and Apple, it is clear that these unregulated tech giants have become too big to care.” Because these bills target large corporations, some Progressives are comfortable punishing consumers who rely on companies that consumers most admire. Progressives idealize a market populated by small firms where efficiency and innovation would no longer be justifications for small firms to being outcompeted: the shrinking of large corporations irrespective of their merits is a key component of the Progressives’ economic agenda.

These bills are punitive: They would decrease consumer welfare, stifle innovation, and deter the process of creative destruction, which characterizes the dynamism of capitalist societies and underpins the march toward progress through technological changes. These are the values that these bills ultimately punish. The antitrust bills intend to punish large tech companies; in fact, they punish consumers by precluding innovations and progress from taking place ironically at a time when changes have never been as rapid in rival foreign countries.

Congress should heed the advice of executive consultants: “when feeling angry or otherwise emotional, you may promise yourself to wait 24 hours before responding. In this time, you may commit to gathering more facts and how you’ll communicate productively and proactively.”

Interestingly, the American Bar Association’s Antitrust Division has raised serious concerns about the desirability of these bills. In an uncommon public comment, the ABA’s Antitrust Division expressed concerns about the vagueness of the terms used in the bills. It cautioned against prohibiting pro-competitive practices for companies lacking market power. The ABA’s Antitrust Division calls for a more reasonable approach to competition reforms than these ostensibly punitive antitrust bills.

The case for reforming antitrust laws has not been convincing so far. But should antitrust laws be ever reformed, reason–not resentment–should inform antitrust.

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