For over 40 years, U.S. antitrust law has been guided by the simple idea that it’s the government’s job to protect consumers from anticompetitive business practices that hurt Americans’ pocketbooks. It’s the same perspective I brought to Congress, where I worked side by side with my colleagues, whether they aligned with the party’s left flank or hewed closer to the center, to make life better for the American people. Unfortunately, I’m afraid that the Biden administration’s antitrust agenda is undermining that goal.
The president’s top antitrust enforcers, Federal Trade Commission (FTC) Chair Lina Khan and Assistant Attorney General for the Department of Justice’s (DOJ) Antitrust Division Jonathan Kanter have pushed the Biden administration to test novel legal theories, and their agencies have aggressively pursuing high-profile lawsuits targeting successful American companies that provide affordable, popular products, all in the name of “antitrust.” But instead of protecting U.S. consumers, the FTC and DOJ are threatening to raise costs for Americans.
Under the leadership of Lina Khan and Jonathan Kanter, the FTC and DOJ have pursued cases meant to undermine the consumer welfare standard, the foundation of antitrust law that the Supreme Court, legal scholars, and Democratic and Republican presidential administrations have all embraced since the 1980s to protect Americans from high prices. Unfortunately, legal analysts and antitrust experts agree replacing this long-standing legal precedent would actually hurt consumers and spike prices.
Lina Khan’s FTC made front-page news for its unprecedented lawsuit against Amazon. The case, which seeks to punish Amazon for the crime of providing affordable products to consumers – conduct the FTC was designed to encourage – has been met with fierce criticism from voices on both the left and the right. The case is just the most high profile in the long-running series of lawsuits filed by the FTC threatening consumers. That includes the agency’s attempt to block Microsoft’s purchase of Activision, which a judge noted would actually benefit consumers, as well as the FTC’s crusade to stop Illumina’s acquisition of Grail, a health research company, which threatened to limit more affordable access to cancer treatments.
The Justice Department’s campaign to undermine the consumer welfare standard has produced similar, dangerous results for American consumers.
In the past year, Jonathan Kanter has directed the DOJ to launch antitrust investigations into the healthcare and agriculture industries that have threatened to raise insurance premiums and grocery bills for Americans. Thankfully, judges rejected these cases, but only after industry experts and Biden administration officials warned in court that the DOJ’s lawsuits would increase prices for consumers. Unfortunately, those failures haven’t discouraged Kanter’s Department of Justice from pushing ahead with its “antitrust” agenda. Last September, the DOJ announced a lawsuit aimed at breaking Google Search. If successful, according to experts, the results would increase prices for consumers, discourage investment in small businesses and startups, and slow down innovation.
Biden administration antitrust enforcers have argued that this radical new interpretation of antitrust law will increase competition and protect consumers – but there aren’t many people who agree. The fact is that under Jonathan Kanter and Lina Khan’s leadership, the DOJ and FTC are failing to protect American consumers, and they’re making the very problem they say they’re trying to solve much, much worse.
Max Rose is a former member of the United States House of Representatives.
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