Republican Senator Josh Hawley has got carried away by his desire to curtail the influence of the US tech giants.

Hawley has been quite rightly alarmed at the political bias shown by big tech in its censorship and business decisions. His latest attempt to do something about it takes the form of a proposed piece of legislation called the Trust-Busting for the Twenty-First Century Act. Rather than focus on the likes of Google, Amazon and Facebook, however, this law would legally constrain any company above an arbitrary market capitalization threshold.

“A small group of woke mega-corporations control the products Americans can buy, the information Americans can receive, and the speech Americans can engage in,” said Hawley “These monopoly powers control our speech, our economy, our country, and their control has only grown because Washington has aided and abetted their quest for endless power.

“While Big Tech, Big Banks, Big Telecom, and Big Pharma gobbled up more companies and more market share, they gobbled up our freedom and competition. American consumers and workers have paid the price. Woke corporations want to run this country and Washington is happy to let them. It’s time to bust up them up and restore competition.”

The above quotes reveal Hawley is driven more by political partisanship than genuine concern for competition and ‘Americans’. His decision to characterise all of his country’s biggest companies as ‘woke’ is clumsy, inaccurate and unhelpful. What does it even mean in this context? Presumably he used it to signal his political allegiance and play to the gallery, but given that wokery tends to sneer at the free market, how can the most commercially successful companies be put in that category?

Here’s a summary of what the law would enact:

  • Ban all mergers and acquisitions by companies with market capitalization exceeding $100 billion
  • Empower the FTC to designate “dominant digital firms” exercising dominant market power in particular internet markets, which will be prohibited from buying out potential competitors
  • Prohibit dominant digital firms from privileging their own search results over those of competitors without explicit disclosure
  • Reform the Sherman and Clayton Acts to make clear that direct evidence of anticompetitive conduct is sufficient to support an antitrust claim, which will allow enforcers to effectively pursue the breakup of dominant firms and prevent antitrust cases from devolving into battles between economists
    • Example: Facebook’s complete acquisition of a major competitor, Instagram, should be sufficient to justify antitrust action without needing to bring in specialists to define the “social networking market”
  • Replace the outdated numerically-focused standard for evaluating antitrust cases, which allows giant conglomerates to escape scrutiny by focusing on short-term considerations, with a standard emphasizing the protection of competition in the U.S.
  • Clarify that “vertical” mergers are not exempt from antitrust scrutiny
    • Example: Amazon could not acquire additional companies in its supply chain
  • Drastically increase antitrust penalties by requiring companies that lose federal antitrust suits to forfeit all their profits resulting from monopolistic conduct

The arbitrary ban on M&A for all companies with a market cap over $100 billion would affect a hell of a lot of US companies. The Sherman and Clayton Act stuff seems like a direct attack on due process, lowering the bar for antitrust prosecution such that it would be almost impossible to defend. Here are a couple of passages from the Bill that explicitly seek to substantially lower the burden of proof in any antitrust prosecution:

Where a preponderance of the evidence (including direct evidence) is adduced to demonstrate that the effect of an acquisition may be substantially to lessen competition or to tend to create a monopoly, a plaintiff need neither establish market shares nor the concentration of any particular market.

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.

Hawley has really let himself down with this sloppy effort. In an apparent bid to curtail the influence of a corporate sector he fells is politically biased against him he wants to victimize all large companies for the crime of being successful. That doesn’t sound very ‘conservative’ to us. Further evidence of Hawley’s folly comes in the form of approval from those politically opposed to him, which also increases the danger of this ridiculous bill being passed into law.




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