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NEWS & INSIGHTS

Will Republican Senators Vote for the End of Capitalism as We Know It?

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RealClearPolitics (Commentary)
by Robert H. Bork, Jr. | published June 09, 2022

If conservatives, angered over censorship, enable the Klobuchar bill to become law, the result will be the worsening of Big Tech’s content moderation discrimination – and sometimes outright censorship – of conservative views.

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Will Lindsey Graham cave to Klobuchar’s socialist antitrust bill?

8/1/2022

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Columbia Standard (Commentary)
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by Robert H. Bork, Jr. | published July 29, 2022

Sen. Lindsey Graham voted with four Republican colleagues in the Senate Judiciary Committee to pass the Innovation and Choice Online Act – legislation that purports to reign in Big Tech. With the bill likely heading to the Senate floor for approval within days, Graham’s support could lead enough Republicans to help the bill get to President Biden’s desk for signature. ​

This bill, sponsored by Sen. Amy Klobuchar (D-MN), would give the Federal Trade Commission expansive powers to regulate large social media companies. Endorsing a vast expansion in government is strange for a conservative. But it is easy to see how Sen. Graham got there. Like millions of Americans, Graham finds that Big Tech’s “efforts to censor conservative content are offensive.” 

Graham, like other conservatives, is so angry about censorship that he is ready to stick it to Big Tech by voting for the Klobuchar bill.

The text of the Klobuchar bill, however, doesn’t touch content moderation. By the admission of Rep. David Cicilline (D-RI), Trump impeachment manager and the author of the companion bill in the House, this legislation will not touch “content-moderation practices online.” 

If Graham and his fellow Republicans vote for this bill out of spite, they will enable a government power-grab inimical to conservatism. 

Klobuchar’s bill is a power grab because it would subject businesses to “death-penalty fines” of 15 percent of revenues for crossing poorly defined red lines. According to Sen. Tom Cotton (R-AK), the bill “includes language that could catch up a lot of other firms that are nothing like these [social-media] companies . . . potentially treating Kroger, or Piggly Wiggly, or Home Depot with the same kind of antitrust restrictions that we expect on Facebook, Apple, or Google.”

This bill would create so many new mechanisms for government control of business that C-Suite wokeness and ideological intolerance could easily be enforced by Biden’s hyper-aggressive regulators. Far from breaking up Big Tech, the Klobuchar bill would be a shotgun wedding between Big Business and Big Government.

Another Senate Judiciary Republican, Mike Lee (R-UT), said the Klobuchar bill “may actually entrench the very four companies at which it’s aimed, by creating a strong incentive to simply cease doing any business with third parties.” This could happen because Klobuchar’s legislation would force Big Tech companies that do business with third parties, such as Amazon’s marketplace for small sellers, to share access to their operating, hardware, and software systems. “This could crush thousands of small businesses,” Lee added. 

Klobuchar’s bill would also make it illegal to restrict or impede a business user from accessing data on the platform. The practical effect of this data portability would be to force everything Facebook, Amazon, and other tech giants know about American consumers to share with thousands of other companies, some of them foreign.

Where might all that data go? Sen. John Cornyn (R-TX) notes that Chinese law obligates companies doing business in China to cooperate with Chinese intelligence services. Alarmed by this critique, Sen. Klobuchar amended her bill to exclude sharing of Americans’ data with China or any other “foreign adversary.” Once Americans’ data is shared by thousands of companies in the digital wild, however, how realistic is it to believe that China will not gain access to it?
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It is understandable why conservatives want to lash out at Big Tech censorship. But too many conservatives in Congress have let their anger get the better of them. Conservatives voting for the radical expansion of Big Government and the entrenchment of Big Tech would be the ultimate “own goal” – a self-defeat from which conservativism and the free market may never recover.

ROBERT H. BORK JR. is the president of the Antitrust Education Project

Read on Columbia Standard
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Sen. John Kennedy and the 'Breakup Big Tech' bill

8/1/2022

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Baton Rouge Reporter (Commentary)
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by Robert H. Bork, Jr. | published July 29, 2022

John Kennedy has quite made an impression in his first term as a U.S. Senator – an Oxford-educated lawyer with a colorful country-store wisecrack for just about everything. He compared economic forecasting to psychic hotlines, said that a group of state bureaucrats were so incompetent he wouldn’t hire them to run a food truck, and told police critics that that they next time they’re in trouble, they should “call a crackhead.” ​

Kennedy has been no less colorful in complaining about the size and power of Big Tech. Like many conservatives, he is righteously angry about the content moderation decisions made by big social media companies that always seem to go against conservative speech. He has expressed concern that these companies have become “countries” that are “killing fields for the truth.” It is out of fear of censorship that he joined with Sen. John Thune (R-SD) on June 16 to introduce the BIAS Act, which would restrict search engine algorithms that treat emails from political emails as spam.

Given Sen. Kennedy’s displeasure with Big Tech, it is perhaps no surprise that he joined with four Republican colleagues in the Senate Judiciary Committee in January to pass the Innovation and Choice Online Act – legislation that purports to reign in Big Tech. Kennedy might have done so in part to stay in the good graces of a committee colleague and sponsor of the bill, Sen. Amy Klobuchar of Minnesota (D-MN). If he continues his support now, Kennedy could lead enough Republicans to help the bill clear the Senate’s 60-vote hurdle and send it to President Biden’s desk for signature. But John Kennedy, who has argued that social media needs to simplify the “fine print” on its data policies, might want to take a moment to scrutinize the fine print on this bill. 

The text of the Klobuchar bill won’t “break up” Big Tech or turn off the social media censorship machine. Rep. David Cicilline (D-RI), Trump impeachment manager and author of the companion bill in the House, admits this legislation will not touch “content-moderation practices online.” But the Klobuchar bill would give the Federal Trade Commission expansive powers to regulate large tech and social media companies. 

Kennedy, who expressed skepticism about Klobuchar’s bill before voting for it in committee, should see that her bill for the government power grab it is. It would subject businesses to “death-penalty fines” of 15 percent of revenues for what seem to be intentionally vague infractions. If Big Tech is put under such a degree of control, it will amount to a shotgun wedding between Big Government and Big Tech. The result would be not the current “countries” of Google, Apple, Facebook, and Amazon, but a giant continent fused with Washington, D.C. 

The power grab could soon include much of the rest of the business community. Sen. Tom Cotton (R-AK) said the bill “includes language that could catch up a lot of other firms that are nothing like these [social-media] companies . . . potentially treating Kroger, or Piggly Wiggly, or Home Depot with the same kind of antitrust restrictions that we expect on Facebook, Apple, or Google.”

Worse, this bill would create so many new mechanisms for government control of business that C-Suite wokeness and ideological intolerance could easily be enforced by Biden’s hyper-aggressive regulators. Another Senate Judiciary Republican, Mike Lee (R-UT), said the Klobuchar bill “may actually entrench the very four companies at which it’s aimed.” This could happen because Klobuchar’s legislation would force Big Tech companies that do business with third parties, such as Amazon’s marketplace for small sellers, to deny access to their operating, hardware, and software systems. “This could crush thousands of small businesses,” Lee added. 

Klobuchar’s bill would also make it illegal to restrict or impede a business user from accessing data on the platform. The practical effect of this data portability would be to force everything Facebook, Amazon, and other tech giants know about American consumers to share with thousands of other companies, some of them foreign.

Where might all that data go? Sen. John Cornyn (R-TX) notes that a 2017 Chinese law obligates companies doing business in China to cooperate with Chinese intelligence services. Alarmed by this critique, Sen. Klobuchar amended her bill to exclude sharing of Americans’ data with China or any other “foreign adversary.” Once Americans’ data is shared by thousands of companies in the digital wild, however, how realistic is it to believe that China will not gain access to it?

It is understandable why conservatives want to lash out at Big Tech censorship. It makes no sense, however, for a senator as conservative as John Kennedy to vote for a bill that would incentivize more censorship for conservatives, marry Big Tech to Big Government, and ship off our data to China.

ROBERT H. BORK JR. is the president of the Antitrust Education Project
Read on Baton Rouge Reporter
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Will the Senate Allow China to Pillage American Data?

7/25/2022

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National Review (Commentary)
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by Robert H. Bork, Jr. | published July 16, 2022

​The hopelessly vague language of Amy Klobuchar’s bill would export to China the most sensitive data of the U.S. government and military as well as that of innumerable consumers, banks, and businesses.

Senator Amy Klobuchar’s (D-Minn.) American Innovation and Choice Online bill, ready for a floor vote in the U.S. Senate, targets major U.S. tech companies for deep regulation. Many Republican senators, angry at big social media companies for heavy-handed censorship of conservative content, are poised to vote for the Minnesota Democrat’s bill out of pique, though the bill won’t break up Big Tech companies or change how they moderate content.

When the bill was briefly discussed in the Senate Judiciary Committee, several senators raised questions about the bill’s mandate that Amazon, Apple, Meta/Facebook, Google, and possibly Microsoft be fully “interoperable” with competitor companies. Such a mandate would necessarily entail sharing hardware, software, and operating systems with thousands of domestic and foreign companies. Might some of them export U.S. data to China or Russia

Klobuchar responded to this concern by amending her bill to exclude “clear national security risks” and entities “controlled by the People’s Republic of China or the government of another foreign adversary.” If the bill passes the Senate, and goes to Biden’s desk for signature, the perfunctory assurances of that amendment would prove to be as protective as tissue paper.

The reason why was well articulated by FBI Director Christopher Wray. Speaking in London in a first-of-its kind joint appearance with the head of the UK’s MI5, Wray said: 

"China often disguises its hand in order to obtain influence and access where companies don’t suspect it. Outside of China, their government uses elaborate shell games to disguise its efforts from foreign companies and from government investment-screening programs like CFIUS, America’s Committee on Foreign Investment in the U.S.

For example, they’re taking advantage of unusual corporate forms like SPACs, or Special Purpose Acquisition Companies, and buying corporate shares with overweight voting rights that let their owners exert control over a company out of proportion with the actual size of their stake in it.

The Chinese government has also shut off much of the data that used to enable effective due diligence, making it much harder for a non-Chinese company to discern if the company it’s dealing with is, say, a subsidiary of a Chinese state-owned enterprise."

Many international companies that would access U.S. operating systems also do business in China. Wray noted that in China “a 2017 law requires that if the Chinese government designates a company as ‘critical infrastructure,’ that company must store its data in China—where, of course, the government has easier access to it.”

Any one of thousands of international companies will have access to the hardware, software, and operating systems of U.S. tech companies. How realistic is it then to assume that China would not get its hands on the personal data of American consumers, businesses, and government?

The targeted companies would include Google Cloud, Microsoft Azure, and Amazon Web Services. All store sensitive data for governments. Microsoft Azure is the favored cloud storage provider for the government of Canada. AWS is a cloud platform that stores data for the U.S. Department of Homeland Security, the U.S. Department of Defense, including U.S. Navy command centers, 80 percent of German DAX companies, and many other businesses and banks around the world. Google Cloud for Government serves the New York City Cyber Command. 

These services give customers curated access to their data on their systems through software called APIs. But give a competitor penetrated or suborned by China access to the architecture underlying APIs, and China can enter not just through a digital skylight but through the front door. And since much of that underlying architecture, called microservices, is the same for all customers, China would have the keys to all kingdoms. 

Such burglary wouldn’t necessarily require bad faith on the part of a U.S., Dutch, Japanese, or Indian company. All it would take would be for China, as Director Wray describes, to penetrate that company and exploit it from within. We got a foretaste of what such total exposure might look like when Russian hackers used IT provider SolarWinds to extract the data of thousands of U.S. government agencies and businesses. 

The hopelessly vague language of the Klobuchar bill is certain to export to China the most sensitive data of the U.S. government and military, as well as that of innumerable consumers, banks, and businesses. The American Innovation and Choice Online Act would be the biggest own goal since the 15th  century, when petty internal conflicts led the Ming Dynasty to withdraw China’s vast armada of treasure ships and destroy its world-leading shipyards. 

The American Innovation and Choice Online Act would be America’s invitation to be comprehensively violated.
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It is not hard to imagine high-ranking intelligence officials in their Beijing offices in the Ministry of State Security holding their breaths and whispering, “please, please . . . ”

​
ROBERT H. BORK JR. is the president of the Antitrust Education Project
Read on American Greatness
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Why Are U.S. Regulators Helping the EU Hobble Top American Companies?

7/6/2022

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National Review (Commentary)
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by Robert H. Bork, Jr. | published July 6, 2022
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​Unless Congress intervenes, the Biden administration is set to accept — and perhaps enthusiastically endorse — blatantly anti-American business laws.


​Perhaps your mother once asked you, as mothers everywhere tend to do, if you would jump off a cliff just because all your friends are doing it. And what is true for children is true for continents: Europe is determined to jump off a regulatory cliff. No surprise there — but why are so many in Washington, D.C., ready to follow suit?

Europe is pioneering policies that will retard and degrade the economic and technological backbone of technology companies that supply the infrastructure of modern life — all of which, perhaps not coincidentally, are based in the United States. These rules aim to make American “gatekeepers” such as Apple, Google, Meta/Facebook, and Amazon less competitive and to remove incentives for capital investors to fund innovation.

This is the thrust of the Digital Markets Act, approved on Tuesday by the European Union. Designed to break down the walled gardens of Big Tech, this measure will require Big Tech to let their services interact with rivals, allow calls from one messenger service to another, and admit competitors into their app stores. When the DMA goes into effect, Big Tech will have to scramble to comply with a labyrinth of laws, enforced by a Byzantine array of bureaucracies and courts able to levy death-penalty fines.

The result will be degraded service and weakened innovation, all to the detriment of the consumer.

Even the United Kingdom, which has liberated itself from the EU, remains (to use a proper English term) a dog’s breakfast for tech regulation. A prime example: The U.K.’s Competition and Markets Authority had stepped into the market to prevent Meta, owner of Facebook, from acquiring GIPHY, a company with the limited function of searching for short, GIF-like files with limited movement.

The British CMA intervened to block this merger, claiming a loss of competition in the U.K. advertising market. The CMA had, however, suppressed facts about this deal between Meta and this upstream image provider. The most telling facts: GIPHY had failed to sell a single ad in the U.K. market. A British court held that the CMA had engaged in selective disclosure of information from Meta, and that vertical integration of GIF providers by Google, Meta, and Snap was a sign of competitive health. Despite this ruling, the case will soon be sent back to CMA regulators, who are free to invent more specious reasons to block a highly competitive acquisition.

Such gamesmanship is endemic to doing business across the pond. That Europeans would be shortsighted enough to try to degrade U.S.-based companies in favor of national champions, if not admirable, is at least understandable. What is not comprehensible is why so many American policy-makers want to follow suit.

In late 2021 the FTC and the Department of Justice’s Antitrust Division launched a formal EU–U.S. Joint Technology Competition Dialogue. The two sides declared that the “Joint Dialogue will include high-level meetings as well as regular staff discussions focused on the shared competition enforcement and policy issues arising in technology markets.” In a speech in New York last year, Europe’s competition czar, Margrethe Vestager, said, “This moment of convergence is a moment of opportunity . . . between the heads of our authorities.” It is easy to imagine that these discussions between European and American regulators are convivial, punctuated by Belgian skate-wing sauté accompanied by excellent Chardonnay from the Sambre-et-Meuse region.

In a further sign that both sides are sympathique, the Biden administration recently announced that the United States has agreed on a new framework for conforming with the EU’s data-privacy laws. And don’t expect the import of European regulatory ideas to end with Big Tech. Last year the FTC announced a “working group” to build a common approach on pharmaceutical mergers.

Like the Europeans, U.S. progressive regulators seek to give competitors standing to bring antitrust actions. Biden regulators are proving to be just as heavy-handed and lacking in intellectual modesty as their European counterparts. When Federal Trade Commissioner Lina Khan goes to Europe, she no doubt finds in Vestager an ideological soul mate.

Unless Congress intervenes, the Biden administration is set to accept — and perhaps enthusiastically endorse — blatantly anti-American business laws. When antitrust law veers beyond the measurable and understandable metric of consumer benefit, it imposes vague and shifting priorities that empower government but stifle innovation by killing predictability for investors. American regulators are inexplicably joining Europeans to aim at the freedom that has made the United States the world’s technology leader.

Like most protectionist acts, these measures will not even serve the business interests of the protectionist powers. The European Union regime of severe, innovation-killing restrictions has prevented Europe, with half a billion people and an almost $20 trillion economy, from developing comparable technologies of its own . . . which is why no one is reading this article on their French-made Pomme device.

ROBERT H. BORK JR. is the president of the Antitrust Education Project
read on National Review
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Lina Khan’s Demolition Derby at FTC

7/6/2022

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Washington D.C. Business Daily (Op-Ed)
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by Robert H. Bork, Jr. | published July 6, 2022
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Federal Trade Commission Chair Lina Khan was asked in a recent interview about low morale in her agency. Chair Khan told The New York Times she takes this allegation “incredibly seriously,” adding “this is a moment of incredible change at the agency, and we know that moments of change can be difficult.”

Difficult indeed. In a recent Office of Personnel Management survey, FTC employees gave Chair Khan and her team low marks for lacking “high standards of honesty and integrity,” plunging the rating of the organization from first place to last among agencies. FTC employees also dropped their agency from first to last when asked if they have a “high level of respect” for senior leaders.
 

Khan lives up to Lincoln’s dictum that the best way to test a person’s character is to give her power. Once touted as a wunderkind for rising from Yale Law to FTC Chair in just four years, Khan has proven to be a ham-handed manager. “Under Chair Khan, morale has plummeted, and we have seen an exodus of experienced lawyers and economists,” wrote Christine Wilson, one of the agency’s two Republican commissioners. “The FTC may take a generation to recover from this loss of institutional knowledge and expertise.”

This is a sea change for an agency that prided itself on collegiality among ideologically diverse experts. For decades, FTC made process paramount to ensure that expert opinions and voices from consumers, industry, economics, labor, and the law could be heard before any significant rule change would be considered. The commission majority always took pains to solicit the minority’s views to find common ground wherever possible. 

The FTC’s intellectual ferment was enriched by an exchange of ideas at conferences, where agency experts provided transparency into agency thinking while picking up ground truth from consumer groups and industry alike. Only one week into Khan’s tenure, her abrasive chief of staff Jen Howard (who sports a silver necklace at work with the f-word in cursive lettering) issued an email prohibiting staff from attending conferences.   

FTC’s internal culture of debate that once sharpened its actions has now been fully replaced with unilateral control by the Office of the Chair. Khan need not solicit even commission votes to compel the staff to follow her dictated process in all investigations. Policies long subject to notice and comment are being altered or rescinded without internal or external input.

Morale at FTC is worsened by FTC leaders, like former Commissioner Rohit Chopra, who called the agency “a backwater” and “failed agency” for its quaint dedication to process and inquiry. The disparagement of the agency by its leadership may turn out to be a self-fulfilling prophecy. The abrupt resignation of FTC’s chief economist, Marta Wosinska, in February is just one of the most notable casualties in FTC’s brain-trust exodus. 

Under its prior cautious, democratic process, FTC had hardly been lax. In 2017, when the agency had only two members – one Republican and one Democratic – it brought twice as many merger challenges as Chair Khan’s FTC. In 2020, under a Republican president, antitrust enforcement hit its highest number in decades. FTC’s actions rested on the conviction that with vetted policies, it could embrace neutral principles to be a strong referee of the market. 

What changed? Commissioner Wilson argues that Lina Khan and her fellow progressive antitrusters buy into Marx’s teaching that law is a tool of capitalist oppression. Self-styling themselves as Neo-Brandeisians, after Justice Louis Brandeis, Khan and her team publicly reject that antitrust law can ever be above politics. The FTC today is the ripening of toxic fruit planted in the nation’s progressive law schools – not just Marxism, but its intellectual offspring, Critical Legal Studies. 

Acting more like commissar than a commissioner, Khan jettisoned the consumer welfare standard that has guided bipartisan antitrust enforcement for almost 45 years. Khan is replacing it with inchoate policies that somehow pledge to protect workers, unions, and less efficient competitors – vague standards that downplay consumer benefits like low prices and high quality, deny the markets predictability, and keep executives in the thrall of progressive Washington. She is trying to change the law unilaterally by replacing well-established merger review guidelines and planning to undertake vast new rulemakings to sidestep case law unfavorable to her views.

While acting hyper-aggressively at the level of policy, Khan’s FTC has often failed to challenge mergers within statutory deadlines, opting instead to send threatening letters to companies at the expiration of waiting periods.

A maladroit manager, equal parts callow and callous, Khan is more than a detriment to her agency. The chaos, uncertainty, and vengeful regulation she brings to the FTC is the last thing this economy needs with high inflation, perched at the precipice of a recession. Expect Khan to emerge as a menace to American jobs, consumers and, yes, workers.
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Robert H. Bork, Jr., is the president of the Antitrust Education Project
read on Washington D.C. Business Daily
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Will Ted Cruz Take a Sharp Left Turn on Antitrust Policy?

6/17/2022

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National Review (Commentary)
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by Robert H. Bork, Jr. | published June 17, 2022
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​Conservatives in Congress have good reason to rage at Big Tech censorship. But too many of them have let their anger get the better of them.

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In January, Senator Ted Cruz joined four Republican colleagues to pass Democrat Amy Klobuchar’s Innovation and Choice Online Act out of the Senate Judiciary Committee. The word on Capitol Hill is that Senate majority leader Chuck Schumer has now promised Klobuchar that her antitrust bill, which takes aim at Big Tech, will get a floor vote later this month.

If Cruz maintains his support for Klobuchar’s bill, he could potentially bring enough like-minded Republicans with him to send this progressive dream to President Biden’s desk.

Why would a conservative Texas Republican support progressive antitrust legislation? Simply put, Ted Cruz is mad enough to swing a wrecking ball at Silicon Valley.

Shortly before voting to move Klobuchar’s bill out of committee, Senator Cruz said the “pervasive” censorship of conservatives by Facebook, Twitter, and other social-media platforms “is malicious, and it is brazen. And Silicon Valley keeps getting worse and worse because no matter how egregious they get with censorship, they’ve discovered there are seemingly no limits and very few downsides to engaging in their self-declared role as the arbiters of what is allowed to be said and what is not allowed to be said.”

Cruz candidly admitted that the bill he was voting to move along would not address Big Tech censorship. But with an amendment from the Texas senator, it could become a vehicle for conservatives’ emotional satisfaction. “It is usually my Democratic colleagues who are proposing private rights of action, and it is usually Republicans who are expressing concerns about additional litigation,” Cruz said. “I will say from my perspective the abuses of Big Tech are so egregious that I am more than happy to unleash the trial lawyers.”

If Cruz follows through on his anger, he will be playing the gullible Wile E. Coyote to Klobuchar’s Road Runner. Klobuchar’s bill would subject American businesses to a degree of centralized control that would amount to socialism. It would institutionalize corporate “wokeness” and censorship. And it could expose the private data of millions of Americans to the Chinese Communist regime.

Does this sound over the top? Consider: Klobuchar’s bill would subject a growing number of businesses to “death-penalty fines” of 15 percent of revenues for violating vague, poorly defined redlines. According to Senator Tom Cotton, the bill “includes language that could catch up a lot of other firms that are nothing like these [social-media] companies . . . potentially treating Kroger, or Piggly Wiggly, or Home Depot with the same kind of antitrust restrictions that we expect on Facebook, Apple, or Google.”

This bill would give progressive regulators infinite excuses to target a company or an executive at will. It would create so many new mechanisms for government control of business that C-Suite wokeness and ideological intolerance could easily be enforced by Biden’s hyper-aggressive Federal Trade Commission chairwoman, Lina Khan.

Ironically, if Cruz, angered over censorship, enables the Klobuchar bill to become law, the result will be the worsening of Big Tech’s content-moderation discrimination, which already sometimes amounts to outright censorship of conservative views.

Klobuchar’s legislation would also force Big Tech companies that do business with third parties, such as Amazon’s marketplace for small sellers, to share access to their operating, hardware, and software systems with other companies. “Quite perversely,” said another Senate Republican, Mike Lee of Utah, the bill “may actually entrench the very four companies at which it’s aimed, by creating a strong incentive to simply cease doing any business with third parties.”

“This could crush thousands of small businesses,” Lee added. “It could actually worsen the state of competition in online markets.”

Worse, Klobuchar’s bill would make it illegal to restrict or impede a business user from accessing data on the platform. The practical effect of this data portability would be to force Facebook, Amazon, and other tech giants to share everything they know about American consumers with thousands of other companies, some of them foreign.

Where might all that data go? Cruz’s fellow Texas Republican, Senator John Cornyn, pointed to 2020 guidelines from Beijing that remind private Chinese companies that they serve the state. He also noted that a 2017 Chinese law obligates companies doing business in China to cooperate with Chinese intelligence services.

Alarmed by this critique, Senator Klobuchar amended her bill to exclude sharing of Americans’ data with China or any other “foreign adversary.” Once Americans’ data is shared by thousands of companies in the digital wild, however, how realistic is it to believe that China will not gain access to it?

It is understandable that conservatives want to lash out at Big Tech censorship. But too many conservatives in Congress have let their anger get the better of them. Senator Cruz and others have only days to change course before they permanently alter the landscape of American antitrust law and do real harm to every American who uses social media.

​ROBERT H. BORK JR. is the president of the Antitrust Education Alliance.
Read on National Review
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Will Republican Senators Vote for the End of Capitalism as We Know It?

6/10/2022

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RealClearPolitics (Commentary)
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by Robert H. Bork, Jr. | published June 09, 2022
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Senate Majority Leader Chuck Schumer has promised Sen. Amy Klobuchar that her “Innovation and Choice Online Act” will soon get a floor vote. If enacted, it will subject American business to a degree of centralized control that will amount to socialism. There is no mystery as to why progressive Democrats are lined up behind this bill.

The real question is why Republicans, stalwart conservatives all, might join them to take it over the line.

This is a real possibility because Sens. Ted Cruz, Lindsay Graham, Chuck Grassley, Josh Hawley, and John Kennedy are in a state of red-hot fury against big social media companies. They have good reason to be hopping mad. Conservative speech, the bland as well as the provocative, is apt to run afoul of the content moderators of Facebook, Twitter, and other Big Tech platforms. When the owners of the main venues of the national conversation pull a post, a conservative has been censored. When they deplatform, a conservative organization has been put out of business.

So, it is understandable why conservatives would want to kick Big Tech in a soft place. What is not understandable is why some conservatives are considering a measure that would, if anything, provide incentives to make content moderation even more “woke.” This would be just one of the many disastrous consequences of passing Klobuchar’s Pandora’s Box of a bill, which these five Republicans voted to advance out of the Senate Judiciary Committee.
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Let me count the disasters.

First, Klobuchar’s legislation would degrade America’s remaining technological edge by forcing social media companies to be fully interoperable with competitors. By making it illegal for these companies to deny competitors access to their operating, hardware, and software systems, it would force the giving away of some of America’s most precious intellectual property to foreign competition.

Second, Klobuchar’s bill would make it illegal to restrict or impede a business user from accessing data on the platform. This is data portability, an idea with considerable surface appeal. But its practical effect would mean that everything Facebook or Amazon knows about you would have to be shared with other companies. With so many shell companies and corporate alliances, your data could easily go to companies under the thumb of the Chinese Communist Party.

Third, the Klobuchar bill would restrict the ability of tech companies to “self-preference,” forcing them to offer competitors equal access to their marketplaces. The practical effect would be to turn America’s most innovative companies into public utilities, destroying hundreds of billions of dollars in equity that American retirees and retirement funds are heavily invested in. Consumers would suffer as well. Amazon could no longer offer discounts on its Prime service. Google Maps would no longer appear at the top of a search. Choices would narrow, likely driving even more inflation.

Some conservatives would go even further, extending heavy-handed antitrust regulation to all business. Sen. Josh Hawley would outlaw all mergers and acquisitions for large companies of all sorts, in effect fossilizing capitalism. In the House, Rep. Ken Buck has recently promised to consider adding regulations to pharmaceuticals, airlines, and banks. Hawley and Buck seem oblivious to a recent study by the respected economics consulting firm NERA, which shows that by widely-used economic measurements, business concentration has been declining, not increasing.

Fourth and worst for conservatives, the Klobuchar bill – which does not even address content moderation – would institutionalize corporate wokeness. This would be the natural result of legislation that would subject a growing number of businesses – by no means limited only to Big Tech – to death-penalty fines of 15-30% of revenues for violating vague, poorly defined regulations.
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As in Putin’s Russia, progressive regulators would have infinite excuses to target a company or an executive at will. Businesses would be allowed to operate only at the sufferance of the Federal Trade Commission, which Chair Lina Khan is aggressively targeting. The bill creates many new mechanisms for government control of business, the hammers of socialism. That is no way to ensure more room for conservatives in social media. That is a way to enforce C-suite wokeness and ideological intolerance.

If conservatives, angered over censorship, enable the Klobuchar bill to become law, the result will be the worsening of Big Tech’s content moderation discrimination – and sometimes outright censorship – of conservative views.

Conservatives in Congress have let their anger blind them to the consequences of lashing out. An impeccably conservative Republican in the House, Rep. Jim Jordan of Ohio, offers a better perspective. Jordan said of similar legislation, “This is about power going to the FTC, the collusion of Big Tech and Big Government to, I think, further censor conservatives, further make limits on our free speech rights.”

Will Republicans in the Senate wake up? Or will their blind anger drive us all over the edge?
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Robert H. Bork Jr. is president of the Antitrust Education Alliance. ​
Read on RealClearPolitics
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Larry Summers Links Antitrust Crusade Against Inflation to “Science Denial”

5/26/2022

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​Former Treasury Secretary Larry Summers is a liberal no one should mistake for a Chicago-School economic conservative. When he was at Treasury, Summers presided over a golden economy, a remarkable period of growth, balanced budgets, and low inflation. So when Summers raises alarms about the likely bad outcomes of Biden Administration economic policy, attention must be paid.
 
In 2021, when the U.S. economy was clocking in at 6 percent annual growth, Summers warned that no stimulus was needed. In fact, he predicted that runaway government spending would result in inflation. The United States today is in greater debt to itself than in anytime in our history. And inflation is close to 9 percent.
 
Now Summers is warning about the dangers of progressive antitrust to economic growth and as a potential driver of inflation. While Summers speaks in favor for more antitrust enforcement under current laws, he warned that jettisoning the consumer welfare standard in favor of a “generalized feeling of hostility and outrage” against business is dangerous.
 
Summers says that hipster antitrust is “badly misguided and potentially dangerous to our economic future.” He told Bloomberg Television: “It’s very important that we have antitrust policy based on facts, based on economic science, based on consumers – not on a kind of generalized feeling of hostility and outrage towards business.”
 
Summers also recently tweeted: “Policies that attack bigness can easily be inflationary if they prevent the exploitation of economies of scale or limit superstar firms.” He also tweeted: “The emerging claim that antitrust can combat inflation reflects ‘science denial’ There are many areas like transitory inflation where serious economists differ. Antitrust as an anti-inflation strategy is not one of them.”
 
Summers shows that one can be impeccably liberal and still see that populist antitrust is an inflationary threat to consumers and the economic growth that supports jobs and working families.
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Economists Debunk Progressive Claims That U.S. Run by Monopolies

3/16/2022

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​​Real Clear Politics (Commentary)
AEP President, Robert H. Bork, Jr., provides commentary on Real Clear Politics.

Since then, progressive antitrust appointees at the Federal Trade Commission, the Department of Justice, and the White House Competition Council have moved with alacrity to expand the mission and scope of regulation to deal with this emergency. FTC Chair Lina Khan, who is spearheading the administration’s effort to make a wholesale revision in antitrust regulation, wrote that “studies reveal high concentration to now be a systemic, rather than isolated, feature of our economy.”
READ ON REALCLEARPOLITICS.COM
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Voters Want Antitrust to Protect Consumers, Without Partisan Politics

12/16/2021

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AEP Poll
​Some moderate and conservative legislators seem to be acting in the belief that their voters support the radical expansion of antitrust policy now popular in Washington.
 
Our recent Antitrust Education Project poll of 1,000 registered voters shows the opposite.
 
When asked whether antitrust law should protect a corporation’s customers or the businesses it competes with, 54 percent of respondents went with the Consumer Welfare Standard – including 58 percent of Democrats.
 
When asked if the current antitrust laws work, 53 percent said they work well, with many agreeing that these laws need better enforcement.
 
And for those politicians who are most concerned about “wokeism” in corporate leadership, take note that a commanding 83 percent of respondents said they oppose bringing partisan politics into antitrust.

Voters do not like politics in antitrust law. They want policies that benefit consumers, not the radical theories now popular in Washington.

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