Antitrust

Josh Hawley's Dangerous 'Trust-Busting' Bill

Hawley’s legislation would give officials more room to unilaterally punish business behaviors they personally don’t like.

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Sen. Josh Hawley's recently unveiled "Trust-Busting for the Twenty-First Century Act" would ban most mergers and acquisitions between companies worth over $100 billion, stop tech companies like Amazon and Google from promoting their own products, and subject vertical mergers to antitrust laws.

The Missouri Republican says these steps are necessary to counter the power of "woke mega-corporations," which he believes "control the products Americans can buy, the information Americans can receive, and the speech Americans can engage in." In Hawley's estimation, unregulated companies have "gobbled up our freedom and competition."

Hawley's comments aren't surprising. He has previously called for banning such social media features as infinite scroll and autoplay videos, declaring them "exploitative and addictive." He has also claimed that when Amazon uses third-party data to understand how better to market its own brands, it is violating antitrust law.

Hawley's new legislation takes aim at "dominant digital firms," defined as a website or service offered online with "dominant market power in any market related to that website or service." It views many actions taken by such companies as inherently "unfair and deceptive," and it would give the Department of Justice and the Federal Trade Commission the power to regulate those behaviors.

For example, dominant digital firms would be banned from promoting their search results without informing consumers they were doing so, and mergers and acquisitions made by companies with a market cap over $100 billion would be prohibited.

But that's not Hawley's most radical proposition. His bill stipulates that "no acquisition shall be presumed not to substantially lessen competition or tend to create a monopoly only because the parties to the acquisition do not compete directly against one another at the time of the acquisition." This means vertical mergers (which occur between companies within the same supply chain that don't necessarily compete directly) would be subject to the same level of review as horizontal mergers (which occur between companies in direct competition).

The government currently views vertical mergers fairly positively and has not subjected them to antitrust scrutiny. Since they tend to reduce production costs and to pass savings along to consumers, they create an efficiency that benefits markets.

Hawley's bill would break with that tradition. This wouldn't just drastically increase the number of corporate actions the government will be able to review; it would increase the potential for this power to be abused by officials with political rather than legal complaints. Former President Donald Trump reportedly attempted to pressure the Department of Justice into banning a vertical merger between Time Warner and AT&T because of his personal dislike for the way CNN (owned by Time Warner) covered him.

By increasing the number of actions the government can review and stop, Hawley's bill not only increases the opportunities for future officials to derail perfectly harmless business activities; it runs the risk of bogging down commerce in regulatory processes. As the senator has noted, his bill would bar Amazon from adding new companies to its supply chain, a move that may hamper its ability to serve its consumers effectively.

Nor is this the only cause for concern. Hawley's bill would also reduce the burden of proof needed for corporate behavior to be deemed anticompetitive.

Current antitrust law does not view monopolies as inherently damaging to competition: Only when companies collude to exclude competitors, or when a single competitor tries to use force to achieve a monopoly, is there a problem. Hawley's bill would lower the burden of proof needed to prove a company is behaving unfairly. People alleging anti-competitive behavior would need only to show a preponderance of the evidence, and a plaintiff would not need to either "define the scope of a relevant market nor establish the share of such a market controlled by the defendant." Essentially, a person alleging monopolistic behavior wouldn't have to prove that a company actually had a dominant market share.

Further, it would not be up to an accuser to prove that a company's behavior damages competition. It would be up to the accused company to prove that its behavior doesn't damage competition. To beat an allegation, accused companies would have to show not only that their actions would increase competition but that they "could not obtain substantially similar procompetitive effects through commercially reasonable alternatives that would involve materially lower competitive risks."

Hawley's bill would also increase the cost of being found on the wrong side of the law: Companies found guilty of anti-competitive practices would forfeit all profits made from those actions.

The most troubling aspect of this legislation may be just how vague so much of it is. There is no real definition of what constitutes a "dominant" firm, even though businesses given this label are subject to scrutiny in many of their practices. This creates an opportunity for companies to abuse the Federal Trade Commission's enhanced investigatory powers to hamper their competitors. Worse yet, it creates the possibility that politicians will use their unilateral power to punish business behaviors they personally don't like.

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  1. Would you call it a Danger to Our Democracy?

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    2. I’m not sure which Democracy of which you speak, but I do know this:

      While there is a lot about Big Tech which I utterly despise, and while I have experienced toxic culture and “cancel culture” on various Forums before, all of this talk of “trust-busting Big Tech” and “making Big Tech into public utilities” is like bringing in the cops for Oxford Debates, TEDTalks, snapping sessions, or rap battles. There is no problem any of these institutions have that calling the cops couldn’t make worse.

      If people want more viewpoint inclusion on Big Tech platforms, why not use the influence brought by buying stock shares into play? It is possible for what’s called “hostile takovers” to change the leadership direction of a company with as little as 2 percent of the stock shares of a company (at least according to Reason when it was reporting on Jesse Helms wanting Conservatives to buy stock shares of CBS.)

      The figures may vary, but this is still a goal within reach and people of all viewpoints, Libertarian, Conservative, Civil Liberties Liberals, Greens, Moderates, and others could participate in opening up Big Tech by buying stock shares and changing the direction of Big Tech, all without involving government at all.

      Worst case scenario: If buying stock shares of Big Tech still didn’t change Big Tech towards greater viewpoint inclusion, everybody could still sell their shares, pool the proceeds, then really create their own platforms (without the jangly mix of caps and small letters.) What could Big Tech do about that?

      And using the Almighty Dollar is a much better solution to the problems of Big Tech than putting control into the hands of a man who wants his Cosmic G-Thang to literaly Tear The Roof Off this Muthah-Suckah we call Earth:

      A Christian Vision for Kingdom Politics: Immanentize the Eschaton!
      by Joshua D. Hawley
      https://www.patheos.com/blogs/philosophicalfragments/2012/10/26/christian-vision-for-kingdom-politics/

      Go for the stream, not the frying pan or the fire!

  2. Reason thinks the big tech autocrats will eat them last. Maybe that’s true, but they’ll still get eaten.

  3. https://twitter.com/robbystarbuck/status/1382779653643980802?s=19

    Breaking: James O’Keefe of Project Veritas has been suspended by Twitter. This is pure censorship for political reasons because he has successfully exposed CNN, the media and Democrats. This is insanity. If you care about journalism, let @Jack know how you feel.

    1. I wonder if this counts as chilling to the free press?

      1. As long as no sex workers have been demonetized, there’s nothing to worry about when a kajillion dollar mega-corporation shutters opinions which deviate only slightly from anything uttered north of Fremont or south of Cupertino.

    2. Nardz you sure love posting about liars. Ngo and Keefe are known liars.

      Have you ever been called an uncle Tom or House n word?

      1. Fuck off, you didn’t even know who they were before you clicked on the thread.

        1. I’ve known about Keefe since that doctored ACORN video and anyone who’s been following what’s going on in Portland knows Ngo is a liar.

          Piss off you lying fascist.

          1. “doctored”

            Yeah, that was the narrative invented several years after the fact. Neat to see that you actually swallowed all six inches of rock-hard revisionism.

            1. Because it was doctored. You far right kooks just lie about anything that challenges your fascist worldview.

              Project Veritas also tried to dupe Wapo into publishing false allegations against Roy Moore and failed.

              Fuck you mother.

              Mormon loving lying fascist!

              1. Except that you’re lying right now, and the really stupid part is that you’re not actually smart enough to be having conversations here. You’re sarcasmic and SPB2 level dumb.

                The retard’s internet is over there ===>
                Try it, I think that it would make you happier.

            2. KAR is much better being flagged and refreshed. You will, guaranteed, miss nothing.

        2. KARen isn’t bright

          1. Apparently the Kulaks were Soviet internment camps, and the Treaty of Versailles was a Weimar Germany gun-control measure.
            Thanks to KAR’s original research all the history books need to be rewritten.

          2. That’s rich coming from someone who claimed speculation on Reason’s comment section was “mountains of evidence.”

            You also believe known liars like Ngo and Keefe.

            You’re fucking dumb Nardz.

            Do you ever get called a house n word or uncle Tom?

            1. You mean when I was talking about White Knight and Jeffy screaming “whataboutism”? Where else would you find them doing that, retard?

              You’re too fucking stupid to be a troll. How do you even manage to feed yourself or breath?

            2. “Do you ever get called a house n word or uncle Tom?”

              Such an odd question.

    3. “This is pure censorship for political reasons because he has successfully exposed CNN, the media and Democrats. ”

      I especially liked the revelation that CNN won’t allow somebody on air that they do not have some control over. Shows the Republican grifters that go there in a whole new light.

  4. Social class aspirations vs. actually giving a fuck about free minds and/or markets.

  5. https://twitter.com/TheRightMelissa/status/1382786948406915079?s=19

    CNN is caught on Camera admitting to lying, using Propaganda & deception.

    Twitter’s response is not to ban now verified fake news CNN but to ban the real journalists who exposed them, james okeefe

    They are no longer pretending we live in a free society anymore. They now control all means of mass communication and are censoring anyone who expose the corrupt system & the truth

    1. And Reason pays people to write hit pieces about anyone trying to do something about it.

      Totes libertarian.

      1. I do not get why antitrust would be less than a major thing libertarians would support.

        Government would have way more trouble dominating a bunch of small companies instead of a few huge ones.

        Only way to give this joke of a movement any hope is to smash large companies into small ones.

  6. https://twitter.com/disclosetv/status/1382802219548938242?s=19

    JUST IN – Facebook is blocking links to the New York Post, the 4th largest newspaper in the US. A story about Black Lives Matter co-founder Patrisse Khan-Cullors can’t be shared anymore on the platform.

    1. They’ve also banned a number of black journalists that have reported on the story. Jack Dorsey is an objectively awful person.

      1. This one is Facebook

          1. Yea, just transnational mass media/tech corporations operating in conjunction toward shared political goals.
            NoThInG tO sEe HeRe!

  7. https://twitter.com/ggreenwald/status/1382809897461559298?s=19

    The same exact people — in media, politics and tech — who drowned the country in the Russia Bounty disinformation campaign (and so many other frauds like it) are the ones demanding the power to censor and police online discourse in the name of combating “disinformation.”

    1. And these people used to love the old USSR and were willing to sell out America (Rosenbergs) but when the USSR fell now Russia bad…goes back to what the “czar” did to my people..so many of the media pushing this have ansestry in old Russia.

  8. I’ll let everyone else determine how explosive this news is. I don’t personally see it as particularly explosive, but it does vindicate what many of us were saying (complaining about) in the runup and immediate aftermath of the 2020 election. Very little widespread news coverage of it, which I also find interesting.

    But a Michigan Judge just found that the ballot guidance given by the Sec. of State was in fact illegal, essentially modifying absentee signature rules right before the election which were supposed to go through the legislature.

    If you read past the surface coverage and actually read the judgement, it’s interesting because the Sec. of State (defendant) claimed that the suit should be dropped because there “was no controversy”.

    The court disagreed and said that there was in fact a controversy because the ballot guidance that was issued for the 2020 election is still in effect and still illegal.

    This, of course, doesn’t and won’t change anything about the outcome (mainly because it can’t– the opportunity to validate signatures is now lost in the mists of time), but it does validate EXACTLY what the primary complaint about the flurry of dodgy election-rule changes in the runup to the 2020 election was.

    1. Ahhhhh the old it’s not murder if you kill a hobo no one will miss

    2. Sullum is going to file this in the same place he keeps his outrage over the murder of Ashli Babbit.

      The worthless lying fuck that he is.

      1. More telling… Saying exactly this will get you banned on Twitter, Facebook and YouTube. It is a violation of their policy.

  9. Companies like Google and Facebook are quasi-governmental entities in and of themselves, who are actively taking marching orders directly from elected representatives for the benefit of those representatives and not their shareholders.
    And they grew to what they are due to government investment and sponsorship, either directly via In-Q-Tel, or through their proxies. Not through hard work and canny business sense.

    It’s time for Reason to stop pretending that they’re the same thing as the corner grocery store or some flooring manufacturer.

    1. Hey now, it’s not like 30% of the board are dnc higher-ups /elected democrats

      1. They sure are not conservative catholics on those boards…very very undiverse

    2. Right so lets make government more powerful to protect us from big bad businesses. What could possibly go wrong?

      1. Where did I say that?

      2. I like how you say removing extra legal protections for a favored industry makes government more powerful instead of making that favored industry more equal in liability to others.

          1. AddictionMyth
            April.15.2021 at 7:00 pm
            Right so lets make government more powerful

            Or do you not understand what 230 is?

            1. 230? Did you mix up your threads?

        1. So you’re not at all concerned that the left also wants to abolish Section 230? If you ever actually talked to progressives you find they hate Big Tech and want to control them as much as you do. You sure you want to adopt their agenda?

    3. I searched the archives… and shockingly not a lo on this public private engagement. Venezuela was famous for revoking broadcast licenses from “unfriendly ” broadcasters. It is how they keep the image up. Reason would apparently be fine with this if a billionaire went and bought up all the licenses to accomplish the same goal.

    4. So basically what’s going on is some of the shareholders usurping the firm to serve their narrow political agenda, using the resources of the entire firm that belong jointly to all the shareholders? That really sucks.

  10. Hey! Obama granted Google a monopoly fair and square for help with his propaganda and campaining

    https://thefederalist.com/2021/03/22/leaked-docs-show-obama-ftc-gave-google-its-monopoly-after-google-execs-helped-obama-get-re-elected/

    1. Yes but blatant corporatism like this is somehow now totes libertarian because muh “private” company (wink, wink).
      Remember, you’re not violating the first amendment if you have a Chinese Wall between it and the party.

      1. Global Socialist Wokester Party uber alles

  11. We’re in late stage capitalism so there aren’t going to be any revolutionary new innovations or technologies. To the extent that big companies can manipulate markets and stifle competition, it’s only due to their influence on government policy (such as minimum wage and economic ‘stimulus’). Also it doesn’t really matter if big companies merge. Therefore the key is to reduce government power by winding down its programs and services (including abolishing social security and medicare). Then big business will have no partner with which to oppress the hard working taxpayers. In fact big business will have to cater to its customers instead of ‘woke’ voters. At that point, big business will share profits to establish a self-sustaining paradise.

    1. Fuck off slaver.

    2. Social media helped get an incompetent fascist clown elected president. I think the wokes deserve their turn.

      1. …but enough about Biden…

    3. Yet another claim there will be no more revolutionary new innovations. I think some idiot or another has routinely said that for hundreds of years, because the thing about revolutionary innovations is that *no one predicts them*.

      The pace of technological change is getting faster, not slower. Your pessimism is unwarranted. (It would go faster with less government, not going to fight you on that).

    4. Marx used the term late stage capitalism in the 1860s to describe the same thing. We know know how wrong he was, but if you want to go and only use technology avalible in the 1860s go ahead

  12. Many of these corporation are simply too large and powerful. Remember it’s not just big government but also big labor and big corporations that can fuck you over but good.

    Libertarians used to understand this.

    1. “Libertarians believe that we need big government to protect us from big labor. Prove I said that you liar.”

      HAHA nah.

    2. Being big itself is not the problem. Using government force to crush competition is. But sometimes companies grow big because that is what serves consumers the best. Antitrust legislation can’t distinguish between companies that are big due to consumer preferences and those that are big due to legal privileges. Isn’t it interesting that simply abolishing those privileges is never on the table?

  13. Big Tech act and believe they are sovereign countries who don’t have to obey the Bill of Rights are are driven by an hatred towards liberty and certain Americans. The issue here is big tech is not like any other American built company like what Henry Ford or even Steve Jobs (Apple has been corrupted) but they were funded not by real savings but Hedge Funds and Federal Reserve printed money…this movement of “investors” to NYC Ivy League far lefties who have this “old world” grudge against certain Americans is there reason these firms are pushing critical race theory and wokeness…and a disdain for our natural rights.

    It works like this…Twitter or FB need money..the Hedge Fund shows up and ensures their friends or relative or “fellow left wing NYC socialist” travelers get gigs at the companies. Some Brown university “gender studies” woke whose grandparents where communists from Russia get a VP job in “content management”…this is what occurred..and why these firms are bolshevik in nature and need to be broken up..they are at war with America

    1. Sounds like you have a problem with other people expressing their free speech in ways you don’t personally like.

    2. Corporations don’t have to obey the Bill of Rights at all… the Bill of Rights is limits on *government* power, and corporations aren’t government. For example, the first amendment says Congress shall make no law – corporations never make laws, nor are they Congress.

      1. Using legislative threats to get companies to do what a single political party wants seems unconstitutional at best and worthy of bloodshed at worst.

        You can cheer on fascism if you so wish. I will not.

  14. I’m conflicted. It seems to me if there are going to be anti-trust laws at all, then a bunch of huge companies cooperating to destroy smaller competitors fits the Bill for investigation and some sort of legal sanction. The real question is do they have the juice to pull it off?

    That said, I wouldn’t be quick to mock the old school libertarian suspicion that this power will be weaponized against us. Because it’s about 100% likely to happen, eventually.

    1. Pretty sure power is already being weaponized against us

      1. What is currently being weaponized is the blurring distinction between public and private.

        Creating broad based anti-trust legislation to take down big tech passes the hypocrite baton from lefties (who were terrified of big corporations running everything until they weren’t), to righties (who stumped for the rights of companies to freely associate and not be subject to legal limits of free speech or donations until they didn’t).

        The difference is, the left are actually in control of all of the institutions. So I’m pretty sure they’ll just flip it to their favor the other way again.

        It’s like Repealing 230. I don’t think it’s half the panacea we hope it will be. Because it’s still government who can decide who is covered by it and who isn’t.

        But I totally understand the feeling that something NEEDS to be done. Even if it is just a morally/legally dubious partisan jab where it hurts them. I just wouldn’t expect a whole lotta long term benefit, liberty wise.

        1. Maybe a better line of attack would be going after these companies for sharing people’s information with authorities. Like the left wing vlogger who got cops knocking on his door after mildly criticizing AOC online.

    2. We are being gored and trampled by a buffalo, and our only hope is to call over a hungry lion to attack the buffalo. Ill worry about the lion after it saves us from certain death anyway

  15. I’d be fine if Twitter and Facebook were strangled in their beds.

    I never got Twitter. I felt like old people were getting it faster than I was. So from the outside, people’s behavior looks insane. Long apology videos for brain spams sharted on the internet? Do you people not realize that all of this is a phenomenon of a new communications technology!? People tried to overthrow the government because of lies they jacked into on Facebook exactly as if they were snorting coke at a slot machine.

    These things are bad for us and the government should destroy them. So Josh Hawley doesn’t use them to become president.

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  19. Meanwhile, leftist bureaucrats have been doing exactly what you are worried might happen should Republicans somehow manage to pass this bill for over a decade. This has been a driving force in the actions of tech companies since “operation choke point”.

    But sure… Go ahead and worry about hypothetical futures being pondered in response to these actions. No need to say anything about the current pressures being brought to bear that are forcing companies and individuals to all enforce the same speech codes on behalf of Democrats. It is definitely the Republican complaints about it that are the horrifying danger here.

  20. Josh Hawley’s Dangerous ‘Trust-Busting’ Bill

    “Well he soit-ainly busts my trust in him!”

    1. Funny, I didn’t know there was an actual Groucho HTML tag. I posted one around my quote and it didn’t show up.

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