AEP PRESIDENT, ROBERT H. BORK, JR., SPEAKS AT REGULATORY TRANSPARENCY PROJECT EVENT HOSTED BY THE FEDERALIST SOCIETY
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TRANSCRIPT OF AEP PRESIDENT, ROBERT H. BORK, JR.:
Thank you for the invitation to participate in this discussion. I am humbled to be in the company of my fellow panelists.
The title of this panel is: Competition at a Crossroads: Will the Executive Order on Competition Advance Competition, or Restrict It?
I believe that the answer is, on the whole, that it will restrict competition.
Although some suggested reforms among the 72 make sense – most notably relaxing restrictive occupational licensing – on balance the President’s XO will increase burdensome, confusing regulation on both big and small business. Let’s be clear – more redtape and control from the federal government restricts competition. Politicians and bureaucrats always seem to overlook the effect of their own actions. They are blind to Newton’s third law as it might be applied in their own realm.
Of course, I reserve my final judgment, as we all should, until we see what the agencies and departments of the federal government actually produce. I hope they take their time about it and weigh costs versus benefits – but who am I kidding.
But here are just three examples why I am prepared at this point to pass my preliminary judgment:
And, I haven’t even mentioned the infusion of social policy regulation that will be part of this effort from labor, to climate change, to equity. The agencies will have companies large and small coming to Washington for permission to run their businesses at every level.
I must note, on a point of personal privilege, based on the President’s remarks announcing the XO – that it is based on faulty facts and logic.
When President Biden announced his XO he chose to name my father and his failed “experiment” by which he meant the economic and legal analysis of his book The Antitrust Paradox and the consumer welfare standard that has repeatedly been endorsed by the courts. As measures of its failure he cited:
“Less growth, weakened investment and fewer small businesses.”
The president is simply wrong:
Instead of “less growth”, the economy almost tripled in size from 1980 to 2020 under the consumer-welfare standard. Over this time, the World Bank reports that Americans’ per capita income has nearly doubled.
Instead of weakened investment , we have enjoyed a 9.99% inflation-adjusted annual rate of return from 1980 to 2020 -- more than 2 points above returns during the prior 40 years before the consumer welfare standard.
Instead of “fewer small businesses” the overall trend under the consumer welfare standard had for decades been strong, with a 54% increase in small businesses since 1980.
So, to sum up, on the whole, the XO will lead to less competition and harm consumer through higher prices, less choice, fewer jobs, and less innovation. It is part of larger plan hatched by Elizabeth Warren, Amy Klobuchar, and their twin Rasputin’s: Tim Wu and Lina Khan.
The goal to remove the neutral principle of the CWS that is neither conservative nor liberal, Republican nor Democrat and replace it with an anti-capitalist, big is bad, woke set of laws and regulations that harken back to a time in this country where competition policy was built on subjective biases of its enforcers.
The result of all of this will be antitrust law detached from the Consumer Welfare Standard that is becomes a regulatory, statutory, and judicial Ouija board – it is apt to go anywhere and spell out anything guided by the personal preferences of the legislator, the regulator, or the judge. Such rootless jurisprudence allows judges to create new law, introducing a level of unpredictability.