Republican Senators Must Choose Lee Over Hawley

April 22, 2021

This morning, several Republican senators in the Senate Commerce Committee hearing sounded sympathetic to Lina Khan’s nomination to serve on the Federal Trade Commission. Many on the right are so cheesed off at “woke” corporations that they seem ready to sign on to a radically progressive take on antitrust law.

Kudos then to Jeffrey Westling, a fellow at R Street, who nails it in an incisive article explaining exactly what is wrong with Sen. Hawley’s, “The Trust Busting for the 21st Century Act.”

This bill would amend the Sherman Act to exclude the need for defining a given market in specific circumstances, force defendants to show that commercially reasonable alternatives didn’t exist for anti-competitive conduct, and eliminate the Consumer Welfare Standard in favor of protecting economic competitors.

Westling takes care to delineate the careful way the law is currently used by courts to examine a firm’s conduct and the market it serves to determine if an anti-competitive harm has occurred.

The money quote:

The proposal would arbitrarily change the standard from focusing on consumer welfare to protecting economic competition, a rebranding that carries little legal benefit and serves purely political and rhetorical ends. Current jurisprudence already carefully examines whether competition is harmed. As the U.S. Supreme Court has explained, the “law directs itself not against conduct which is competitive, even severely so, but against conduct which unfairly tends to destroy competition itself. It does so not out of solicitude for private concerns but out of concern for the public interest.”

So far, this is too much for even conservative senators who would use antitrust law to bludgeon companies they don’t like. As emotions boil over, it will take cool intellects to stop the momentum of a left-right coalition that wants to create a nebulous standard that would allow government to control business.

In this morning’s hearing, Sen. Mike Lee said that the elements are “already in place” in current antitrust law to protect the public. All that’s needed, he said, is to apply “the right facts, evidence and cases” under the Consumer Welfare Standard. Let us hope Republicans listen to Mike Lee instead of the siren call of Josh Hawley’s progressive approach.