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Biden’s DOJ Wants Even More Power...

Biden’s DOJ Wants Even More Power Over the Free Market

By: Starla Brown - November 28, 2023

Starla Brown, AFP-MS State Director

AFP-MS State Director Starla Brown shares why the U.S. Department of Justice Antitrust Division’s “hostile environment” could cost America its technological edge.

Antitrust law is not usually top of mind for most Mississippians, but recent actions from the Biden Department of Justice should draw our attention. The DOJ’s Antitrust Division has launched a series of unfounded political attacks on American tech companies that have the potential to harm consumers here in Mississippi as well as nationwide. The DOJ is employing questionable arguments to shift the narrative on antitrust practices and allow the Biden administration to control market outcomes and play “kingmaker” in crucial industries like the technology sector.

Take the DOJ’s ongoing antitrust lawsuit against Google. While the DOJ claims Google’s success and popularity among consumers are evidence it is a monopoly, the reality is that breaking up Google would harm consumers. First, it would ignore consumer preferences and reduce consumer choice. The DOJ’s own expert acknowledged that when choosing default search engines, consumers picked Google over ninety percent of the time. Additionally, if the DOJ is successful, Google may be forced to charge consumers for currently free services like Google Search. By increasing consumer costs, the DOJ would achieve the exact opposite of antitrust law’s stated intention: protecting consumer welfare.

This lawsuit has implications for Mississippi’s economy, too. Investment by technology companies here has provided huge boons for our state, yet these actions by the DOJ could throw us off our trajectory by scaring away some of our biggest investors and disrupting access to free digital tools maintained by tech companies which thousands of small businesses in our state rely on.

As expected, the DOJ’s arguments have mostly fallen flat. It has attempted to portray consumers as feeble and lacking agency over their choices, arguing that most are incapable of changing their default search engine—a process many have pointed out takes mere seconds to perform. The DOJ also called several of Google’s competitors as witnesses, including Microsoft, an even larger company which has struggled for years to match Google’s product quality in search. Microsoft complained that Google is too competitive and instead asked the government for a helping hand to boost its Bing search engine, which remains overwhelmingly unpopular with consumers. 

While unsuccessful so far, these efforts by the DOJ are most worrying because of what they’re trying to do. Under the prior, long-established consumer welfare standard, the DOJ had to present evidence of actual consumer harm when bringing companies to court. Because it lacks evidence that Google committed any substantial harm to consumers, the DOJ has instead resorted to arguing that competition law exists to protect competitors—like Microsoft—from their competition. The precedent this would set is decidedly anti-competitive: rather than competing on merit to create the best possible product for consumers, companies could instead simply ask the government to drag their competitors down—resulting in consumers being forced to use inferior products regardless of their preferences.

Even more concerning is that with the consumer welfare standard pushed aside, the DOJ would be free to define whatever criteria it wants for antitrust action. This would allow it to effectively pick winners and losers by intervening in any market where it feels successful companies are simply “too big.” Ostensibly, a company’s size would become the only important consideration, but in practice this would open the door to selective enforcement, giving the DOJ free reign to punish companies for stepping out of line with the Biden administration’s political agenda. In such a future, the merits of each case, particularly consumer sentiment, become meaningless as antitrust law turns into a weapon for political retaliation, with outcomes decided not by facts but by political alignment instead.

The implications are significant: the regulatory landscape created would not only stifle innovation in technology but cast a chilling effect on other industries as well. Consumers would be harmed by limited choice and decreased functionality. Moreover, a hostile environment like this could cost us America’s technological edge, which is more important now than ever due to fierce competition from China. 

That’s not a future that I or anyone else in Mississippi should want to see. Biden’s DOJ is in this for the long haul, and we must remain vigilant against further attempts to assert control over our free markets. 

About the Author(s)
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Starla Brown

Starla Brown is State Director of Americans for Prosperity-Mississippi.