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Bashing Big Tech Isn’t Senate Antitrust Chief’s Priority (1)

Sept. 17, 2019, 9:30 AMUpdated: Sept. 17, 2019, 8:05 PM

Reining in big tech is a rare bipartisan priority for Democratic presidential candidates, the Trump administration, and state attorneys general nationwide.

That ardor isn’t necessarily shared by Sen. Mike Lee (R-Utah), chairman of the Senate Judiciary’s antitrust panel, who is comfortable—for now—to stand on the fringes of the debate as he focuses on a narrower priority.

Lee prefers to talk about the inefficiency of having two federal agencies—the Justice Department and the Federal Trade Commission—enforcing competition law. Consolidating that responsibility in a single entity makes more sense, Lee argues.

“There’s no analytical basis for splitting a monoplization investigation between the FTC and DOJ,” Lee said Sept. 17 during a Senate Judiciary Antitrust, Competition Policy, and Consumer Rights Subcommittee hearing. “Doing so simply looks like both agencies want to have the same piece of the same pie at the same time,” Lee added.

His understated approach to antitrust oversight contrasts Lee with House Democrats and even some Senate Judiciary Republicans, such as freshman Josh Hawley (R-Mo.), who has been a vocal critic of big tech’s harmful effects.

The DOJ, along with a coalition of state attorneys general, is investigating Alphabet Inc.‘s Google. Antitrust officials at the DOJ are also conducting a broad review of tech platforms as a whole, while the FTC is probing Amazon.com Inc. and Facebook Inc.

Lee’s House counterpart, Rep. David Cicilline (D-R.I.), has demanded internal business records from big tech giants and embraced an aggressive hearing schedule designed to conduct a top-to-bottom analysis of their dominant market positions.

At the Senate hearing, Lee questioned the subcommittee’s two witnesses, DOJ antitrust chief Makan Delrahim and FTC Chairman Joe Simons

Both Delrahim and Simons said their agencies need more resources, but Lee questioned why Congress should allocate additional money to the agencies if they are going to potentially investigate the same tech companies.

Overlapping federal probes into Facebook and other big tech players could “undermine” the effectiveness of antitrust enforcement, Lee added.

Narrow Mission

Lee views the subcommittee’s purpose narrowly: to “gather facts and make observations” about mergers and also determine if antitrust law needs to be updated, he told Bloomberg Law in a Sept. 11 interview.

Lee “generally thinks Congress shouldn’t get involved in specific antitrust cases,” said Seth Bloom, a former Democratic counsel on the Senate Judiciary antitrust subcommittee.

Lee has “been somewhat reluctant to have the subcommittee delve into practical issues of business conduct, as opposed to the principles and theory underlying antitrust analysis,” Bloom added.

Philosophy

Lee’s narrow notion of Congress’s antitrust responsibilities is consistent with his broader political philosophy that’s anchored in a strict constructionist reading of the Constitution.

Sometimes that philosophy can “run afoul of how politics actually works,” said Matthew Burbank, a political science professor at the University of Utah.

As a child, Lee attended Supreme Court arguments listening to his father, President Ronald Reagan’s Solicitor General Rex Lee, present the government’s case.

He toppled Utah’s senior Sen. Bob Bennett at the state Republican Party’s 2010 convention as a Tea Party insurgent. As a senator, he’s hewed to a strict ideology that’s led him to break with party leaders, such as voting against the National Defense Authorization Act of 2014.

Lee has drawn questions from critics, including nonprofit watchdog, the Campaign for Accountability, about whether he’s changed his views on Google’s search dominance. He criticized the company in 2011 and since toned down his remarks.

Consumer Welfare Standard

Lee said his views of what constitutes anti-competitive harm remain the same. Intervention is only warranted when conduct leads to a price increase for consumers, Lee argues. This approach, called the consumer welfare standard, has been embraced by most antitrust enforcers, including the DOJ’s Delrahim and FTC’s Simons.

“I think what is driving his views is the desire to have a cohesive antitrust policy that is consistent with the rule of law and economic analysis,” said Josh Wright, a former FTC commissioner who has testified before Lee’s panel numerous times and now teaches at George Mason University’s Antonin Scalia Law School.

But critics say regulators shouldn’t only intervene when price is an issue, they should also assess dominant companies’ effects on labor, wages, and other nonprice factors.

When Cicilline first announced the House’s sweeping tech investigation, many Senate Republicans, including Judiciary Chairman Lindsey Graham (R-S.C.), expressed support for the congressional probe. Lee struck a more cautious tone, warning that antitrust is highly technical and such inquiries are best left to the DOJ and FTC rather than Congress.

Lee says he’s supportive of both state and federal antitrust inquires. “I look forward to seeing what they find,” he said in the Sept. 11 interview.

Time Bomb

At the same time, Lee would like more thought given to whether it makes sense to have two agencies conducting antitrust reviews and potentially reaching different conclusions about allegedly anti-competitive conduct.

Lee says it’s problematic that the two agencies have entirely different merger review processes even as they enforce the same competition laws. The DOJ has to bring a merger suit in a federal court, while the FTC can use its internal administrative proceedings to stop a deal.

Recent disagreements between the two agencies, most notably the DOJ’s decision to intervene in the FTC’s case against Qualcomm Inc., show the system has become “untenable,” Lee said.

“Setting up enforcement the way we did, like I said I think we were sort of cheating time,” he said in the Sept. 11 interview. “We were dealing with a ticking time bomb from the beginning,” added Lee, who declined to say whether he thinks the DOJ or FTC is best suited for the role of antitrust enforcer.

Lee isn’t alone in pushing to consolidate antitrust enforcement. At the Sept. 17 hearing, Hawley expressed concern that “turf wars” between the DOJ and FTC have already lead to a lack of enforcement. “Maybe it’s time for this Congress to do something about it,” Hawley said.

Sens. Thom Tillis (R-N.C.) and Chuck Grassley (R-Iowa) also supported a bill in the last Congress that would align FTC and DOJ enforcement procedures, although the measure didn’t advance.

“Regardless of how much you think antitrust enforcement ought to be sped up or slowed down, these issues remain and I think they are going to build up overtime,” Lee said.

To contact the reporter on this story: Victoria Graham in Washington at vgraham@bloomberglaw.com

To contact the editors responsible for this story: Seth Stern at sstern@bloomberglaw.com; Loren Duggan at lduggan@bgov.com