Two federal agencies are talking past each other as they rush to investigate Big Tech, creating a situation that has become more confusing than Abbott and Costello’s famous “Who’s on First?” baseball skit. Real life, unfortunately, is no laughing matter, but one senator is making an effort to determine how the power squabble between the Department of Justice (DOJ)’s Antitrust Division and the Federal Trade Commission (FTC) could be harmful to consumers and taxpayers.
This week, Sen. Mike Lee (R-UT), chairman of the Senate Judiciary Subcommittee on Antitrust Competition Policy, and Consumer Rights, is holding a hearing on “Oversight of the Enforcement of the Antitrust Laws.” His two witnesses are FTC Chairman Joseph Simons and Assistant Attorney General (AG) for the DOJ’s Antitrust Division Makan Delrahim.
Presumably, Chairman Simons and Assistant AG Delrahim will have to answer questions on why their two agencies are waging a tug-of-war over investigating four Big Tech companies: Facebook, Google, Apple, and Amazon. The Wall Street Journal found that DOJ’s July announcement, saying it would review “whether and how market-leading online platforms have achieved market power,” caught FTC senior staff by surprise.
The Journal also reported that the DOJ move “muddled aspects of an agreement the two sides had reached just a few weeks earlier” to split up Big Tech investigations. Under this tentative arrangement, DOJ would have investigated Google and Apple while the FTC pursued Facebook and Amazon.
To invoke another sports metaphor, anyone who has played basketball knows the headaches that can emerge when two players fighting for the ball happen to be on the same team. The FTC claims that “[i]n some respects [the] authorities [of FTC and DOJ’s Antitrust Division] overlap, but in practice the two agencies complement each other.”
One just needs to look a bit further than FTC’s website to see that, in practice, these overlapping authorities actually breed resentment between agencies, confusion for businesses and consumers, and wasteful spending borne by taxpayers.
Fortunately, Sen. Lee has been on top of this issue for some time. When DOJ made their July investigation announcement, the senator wrote that the news “highlights the absurdity of having two federal agencies responsible for civil antitrust enforcement.”
“While it is laudable that our antitrust enforcers are seeking to root out potential anticompetitive conduct in the tech industry, their duplicative reviews will inevitably waste government resources and lead to the agencies taking contradictory positions on the same issues," Lee said. "Moreover, without clear guidance, dual enforcement will leave industry in confusion as to what to expect from regulators or even what laws will specifically apply to their operations.”
The Utah senator hit the nail on the head earlier in the year, though, when he wrote, “Nevertheless, many of the calls to use antitrust law to address these issues are misplaced, and I’m worried that, in the rush to address our collective concerns about tech, we risk undermining the soundness and impartiality of antitrust enforcement.”
Consumers and taxpayers are best served by a “light-touch” approach to antitrust enforcement, whether at DOJ or FTC. There are legitimate roles for policymakers to play when it comes to protecting consumers’ privacy rights, policing unfair business practices, and ensuring the market for innovative products remains competitive and robust. However, none of these important debates should serve as an excuse for excessive big-government intervention in an industry, led by American companies, that has brought unique and helpful products to billions of people.
Regulators should operate with prudence and restraint, rather than pursue overzealous, race-to-the-bottom investigations that would not look out of place in a Warren administration. Sen. Lee’s hearing should be a good start to re-examining the steps that regulators have taken so far - and to avoiding an alphabet soup of agency duplication worthy of Abbott and Costello.