Op-Ed: Federal antitrust bill would grant 'sweeping new powers' to federal bureaucrats

It was not that long ago that Republicans based their agenda on rolling back the regulatory state. Former President Trump campaigned on a promise of repealing two regulations for every new one that goes into effect. His administration largely followed through on that promise, often times exceeding it. Congressional Republicans worked to limit the powers of federal agencies to dictate best practices to American businesses and individuals. They also pushed for the repeal of onerous regulations to keep the economy afloat at the onset of the pandemic.

Unfortunately, some elected Republicans have gone from campaigning on the success of these policies to pushing for increased bureaucratic control. This push comes in the form of a bipartisan antitrust bill entitled the “American Innovation and Choice Online Act.” Among the bill’s eleven original sponsors, five are Republicans. For those Americans worried about bureaucratic overreach and the ever-growing regulatory regime, this ought to come as a worrying development.

The bill itself is designed to make it easier to bring antitrust lawsuits against companies that preference their own products, systems, and marketplaces – what most would consider just good business. For example, this would make it far easier for competitors and the Federal Trade Commission (FTC) to bring a case against Apple for advantaging its App Store over other digital app marketplaces. It would also steepen fines for violations.

This approach is both wrong-headed and concerning – and would no doubt weaken the vibrancy of digital products in all spaces. However, what is perhaps most concerning about this bill is that it would grant sweeping new powers to the FTC. The bill would give FTC broad discretion to determine which antitrust cases to take up under the bill and would give the FTC the power to bring enforcement action themselves. Because businesses are inherently always looking out for their own interests, the FTC could soon find a wide license to regulate anything and everything on a whim.

This is particularly troubling given the on-the-record statements now made by FTC Chair Lina Khan. Khan has, in the past, argued that the goal of antitrust at the federal level should be “the dispersion of economic and political control.” Khan’s fellow commissioner Rebecca Slaughter has also argued antitrust should be used to accomplish political and social goals. Given the rest of their public statements, Republicans will undoubtedly be disappointed with the way the FTC wields this extra power if given it.

The definitions spelled out in this legislation are also vague enough that decisions will be rendered based on the subjective interpretations of these aforementioned politically motivated bureaucrats. In laying out the criteria to be covered under the bill’s scope, one of the metrics is if a company is a “critical trading partner” of any product or service offered on an online platform. Exactly what this means is not elaborated on any further. This will be up to Khan and the rest of FTC to decide, giving the broad latitude to settle political vendettas.

This is not the only barely-defined term or criteria in this bill. One of the ways a company can incur enforcement action is if it is determined they “unfairly preference” a given product or service. Once again, what constitutes fairness will be up to the FTC. To make matters worse, the standard for rendering penalties in the bill is only “preponderance of evidence,” meaning regulators need only be somewhat certain before crippling a company’s ability to conduct its business as it sees fit.

This bill is hardly about protecting the welfare of consumers and has everything to do with generating more power for the federal government and unelected bureaucrats. All this surely squares with Khan’s agenda, as her first open meeting as FTC chair saw her vote to break with years of precedent, separating the FTC’s mission from the objective criteria of the consumer welfare standard.

Republicans have long bemoaned the power of the bureaucracy to pick winners and losers in the economy – and rightly so. However, their desire to punish big tech companies for private censorship policies they believe disadvantage conservatives is blinding them to this danger. As odious and hypocritical as online censorship may be at times, these are private companies dictating their own operating procedures. It is not the place of the government to intervene, nor is there any indication that Khan’s FTC will use this power to stop at just tech companies.

Republicans, conservatives, and libertarians of all stripes are playing with fire by enlisting the help of the FTC to settle their personal squabbles with big tech. They will cede the principles on regulatory issues to the left and will have no credibility going forward. Every expansion of government has its consequences. Fortunately, those consequences are already in full view and it is not too late for the congressional GOP to turn back now.

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