Cliff Owen/AP Photo
Assistant Attorney General Makan Delrahim, left, at the Justice Department, November 5, 2019
There’s a lot of money to be made protecting Google, Amazon, and Facebook’s fragile egos and robust profits. From lobbyists to academics, plenty of elites have spent the last ten years producing endless arguments that these firms’ dominance was not just appropriate, but a moral necessity and the path to the future.
But the future, it seems, is not so pleasant for the winners. These companies are now the subjects of federal and state-level antitrust investigations, and institutions from the press to politicians to retail are lining up to take potshots at the top dogs.
So what’s a Big Tech hack to do? Why, work the referees, of course! And where better to do it than at that bastion of elite respectability, Harvard Law School?
On Friday, the Computer and Communications Industry Association (CCIA)—a tech trade group which includes Google, Amazon, and Facebook, along with Intel, Netflix, Uber, and others—hosted its second-annual “Challenges to Antitrust in a Changing Economy” conference in the Wasserstein Building, across from the Harvard Yard. Speakers and panelists included Assistant Attorney General Makan Delrahim (the man at the helm of the Department of Justice’s antitrust division) and Federal Trade Commissioner Noah Phillips (one of the five final votes on any FTC enforcement action).
The Washington Post’s coverage focused on Delrahim’s keynote address, where he announced to great fanfare that the DOJ is “studying the ways market power can manifest in industries where data plays a key role.” In other words, his agency is looking at relevant questions to any Big Tech inquiry. Absent knowledge of whether Delrahim actually believes that data plays a key role, the more relevant fact is that two of the most important figures in federal antitrust enforcement spent their Friday at a Harvard-approved conference literally organized by a Silicon Valley lobbying group.
This is nothing new for Delrahim or Phillips, who were both invited to an Aspen conference run by a tech-funded think tank earlier this year. But if anything, “Challenges to Antitrust in a Changing Economy” was an even more heavy-handed effort at shoveling the industry’s arguments down its regulators’ throats. Just look at the guest list.
There were the actual Big Tech executives, like Google chief economist Hal Varian and Facebook vice president of competition and regulatory law Nikhil Shanbhag—he previously held a similar job at Google. Shanbhag sat down directly with Phillips for a “fireside chat” onstage, while Varian led a panel titled, “The Economics Behind Digital Services: How Do They Compete?” Short answer: They don’t. Varian’s answer: Attempt to debunk the alleged “Seven Deadly Sins of Tech” with misleading talking points, like a slide listing Expedia and Travelocity as e-commerce competitors to Amazon, which does not do travel bookings (yet).
Co-panelist Jonathan Baker of American University tried to push back against Varian a bit, noting, “I don’t think I’m the intended audience for Hal’s presentation.” He was quickly drowned out by every other panelist, who had all cashed Big Tech checks in the recent past. They included Howard Shelanski, who insisted that regulators couldn’t crack down on the platforms until more academic research studied why and how innovation occurs in the first place. Shelanski hamstrung the Obama regulatory agenda from within the White House, and ran the FTC’s Bureau of Economics before that, but is representing Facebook from the Big Law offices of Davis Polk these days.
Joining Shelanski was Catherine Tucker, whose academic disclosure statement reveals consulting for Facebook, Microsoft, Lyft, Ripple, and others. She thought Varian’s presentation didn’t go far enough, scoffing at additional “deadly sins” like Facebook’s stores of consumer data. Tucker said she decided this did not give the company an unfair advantage over competitors, after working on—wait for it—a report for Facebook.
One panel right after Delrahim’s speech reached pure self-parody when the moderator opened by grudgingly asking each speaker to disclose their conflicts of interest. That moderator was Daniel Sokol of the University of Florida, a scholar-in-residence at the Chamber of Commerce who includes his Google funding in a tiny font on page four of his articles. Panelist Geoffrey Manne, who has written at least ten papers defending Google while running a small research center funded by Google, defended himself from bias allegations with the following: “I’m not saying that my views can’t be bought, I’m only saying that no one has ever offered to pay me enough.”
Manne noted that his critics always focus on the money, but never subtler forms of bias, like personal connections. Here’s one: Manne’s father was dean emeritus of the infamously Koch-funded George Mason University Law School. GMU’s newly-branded Antonin Scalia Law School now hosts the Global Antitrust Institute, a project of former FTC Commissioner Joshua Wright, who took Google money before and after his stint at the FTC.
Wright’s former attorney advisor Derek Moore sat next to Manne on the panel. Moore is currently at the FTC’s office of policy planning, run by fellow Wright alumnus Bilal Sayyed. Moore also clerked for Judge Douglas Ginsburg, who Ronald Reagan tried and failed to put on the Supreme Court and who is still a big name in pro-monopoly circles. Moore echoed a common attack line against antitrust proponents, alleging that they’re trying to use antitrust to accomplish purely political goals. “The U.S. government doesn’t pay us to have views on [whether Big Tech is good], it pays us to have views on what they antitrust laws say,” Moore said.
Former Commissioner Maureen Ohlhausen echoed this at a “Former Enforcers’ Roundtable,” saying that it “borders on the undemocratic” for unelected FTC Commissioners to make political considerations outside of the consumer welfare standard, a metric developed by a notoriously political actor, Robert Bork. Indeed, antitrust has always been political, with the laws employed or ignored based on ideological concerns.
The most forceful rebuke of the emerging anti-monopoly movement came from Stanford Law professor A. Douglas Melamed, who fulminated that “the Open Markets people, the New Brandeis people, are completely wrong.” He raised the specter that leaving enforcers more room for discretion on political priorities (as if they don’t make political calculations already) might open the door to regulatory capture. “In the long run it will be the big and powerful, not the little and needy, who will benefit,” Melamed said, neglecting to mention his own years working for the “big and powerful”—specifically Intel, which is a CCIA member.
Terrell McSweeny did not attend the roundtable, despite being listed as the moderator of a different panel that morning. For 15 months, Ohlhausen and McSweeny were the FTC’s only two commissioners, leaving many decisions tied up in a 1-1 split. Clearly the two see eye-to-eye on some things, though: They’ve both revolved out to Big Law jobs, with Ohlhausen chairing Baker Botts’s antitrust practice while McSweeny is a partner at Covington and Burling’s antitrust, data privacy, and cybersecurity divisions. McSweeny, who is currently advising Joe Biden, notably opposed Seattle’s efforts to raise Uber drivers’ wages, a decision for which the CCIA-member corporation is surely grateful.
Some might ask why Harvard hosted this gathering of the Silicon Valley faithful. Part of the answer is that some of its professors are in the clique. Take Einer Elhauge, the Petrie Professor of Law at Harvard, whose Google-funded papers include “Framing the Antitrust Issues in the Google Books Settlement.” I, for one, am deeply reassured that he wrote, “The views expressed here are my own, and should not be taken to reflect the views of Harvard University or Google.” See, I was worried that a paper funded by Google which defends Google might be biased in favor of Google, but then he said it was just his own opinion, so it’s fine.
Events like these are clearly inappropriate for decision-makers like Delrahim and Phillips to attend, much less to deliver keynote addresses. But the behavior is unsurprising—Delrahim, after all, once lobbied for Google’s acquisition of DoubleClick, one of the most important acquisitions to its current ad market dominance. Big Tech watchers haven’t put much stock in the FTC and DOJ cases in the first place, while the state-level investigation (now encompassing almost every state attorney general) looks much more serious.
So as distasteful as “Challenges to Antitrust in a Changing Economy” was, it’s not something for the “break up big tech” crowd to get too anxious about. It is, however, very funny to watch from the sidelines as the cheerleaders of monopoly rush to re-convince one another that they’re definitely right.
