Thanks for having me. Really excited. So, when President Trump announced you would become chair, he specifically called out some of the challenges that big tech creates. How is the Ferguson FTC going to address big tech?
Well, again, thanks for having me. I'm excited for this event. I also had not seen the lineup for this event, the full lineup, until I walked in this morning. It's a murderer's row. So, you guys should be really proud of the slate you've attracted today.
So, my coming to antitrust law, I'm going to answer your question, but I'm going to give a little history first, please. So, my coming to antitrust law, I took it in law school. You learn the doctrine. For anyone who's been to law school, you tend to learn the doctrine and then you learn like the professor's view of what the right answer is and then you have to figure out which one you're supposed to give on the exam. I did okay, so I figured it out and then I was just a sort of like antitrust lawyer in DC law firms. And you don't really, maybe others did, but as a like associate trying to pay off student loans, you don't spend a lot of time thinking about doctrine. You just have a client, the client has a problem. And so within the doctrine, you say, 'How can I, you know, fix my client's problems?' And so I sort of embodied the, I'll call it the like corporatist libertarian doctrine of antitrust or at least that version of it and said, 'Okay, well, you know, I've got these clients, help them fix their problems.' And then I went on the hill and that was the sort of first time that I got to think about antitrust sort of outside of the box of antitrust, like looking at it from above and saying, thinking about it as a policy, as a part of our political economy, and as a sort of tool to promote market structures that we want, which requires us to decide what sort of market structures we want. And then my sort of baptism by fire, and I think this is true of a lot of conservatives, was 2020. And you know, I was doing some thinking about antitrust before 2020, but during the sort of George Floyd uprising, I started getting calls from companies, huge companies, their GCs and their trade associations. And they were calling for police reform. I would get calls and the calls were like, 'Hey, we think cops are really racist and we really want you guys to do something about this.' And my response was, 'Why are you calling me about this?' I thought the deal was businesses make widgets. Government will generally leave them alone to make their widgets and then everyone benefits from this. Why are you weighing in on this sort of like uniquely political question? Also, don't you guys want more police to keep your stores and factories safe, etc. And then the censorship epidemic, which had been underway for some time, really, really became public and prominent. Americans, you know, couldn't voice on social media platforms if they thought that masks weren't effective. If they had doubts about vaccine safety, if they thought changing election laws in the middle of the 2020 election was unfair or a form of cheating, they couldn't say that either. If they thought that the stuff on Hunter Biden's laptop was meaningful and ought to be discussed, you weren't allowed to report on that either. And that was sort of when I started to understand the criticism about corporate power as a risk, not just about prices and output, which is sort of what you're taught in antitrust doctrine, but that the wielding of market power is a threat to individual liberty and it's a threat to sort of our political and economic system in more ways than just sort of the classic price and output concerns. And then when I was solicitor general of Virginia, I was approached actually by one of your speakers who was the PAAG in the Justice Department and said, 'Hey, like, you know, we are contemplating this suit against Google for its ad tech monopoly and you know, we would need structural relief, which in layman's terms is breaking up big tech, breaking up Google's monopoly.' And you know, we did digging and I felt very like confident about this theory. And then you know, was thinking like, we've come sort of a long way where a Republican governor and AG in Virginia are contemplating a suit with the Garland Justice Department to break up Google. But that sort of like tracks my own development on this from sort of a like, you know, ho-hum pedestrian associate who just like does what he needs to do for his clients to get paid, starting to think about antitrust. And then recognizing big tech is sort of a serious and the market power it wields is a pretty serious threat to our market structures, to individual liberty. And the Google suit is very interesting because it's pretty ordinary. All of the theories in the Google ad tech suit are pretty straightforward, just tying, illegal acquisitions. No, no sort of like pie in the sky theory. These were theories that had been lying around for a long time and people just didn't want to bring the suit. And the reason people weren't bringing the suit had mostly to do with sort of political choices. And I don't mean like Democrat versus Republican political choices, but I mean choices that enforcers make about when it's a good time to pull the trigger. Even if they think there's a viable suit, there was for a long time a preference against intervening in big tech. And it was driven by a couple of things. I think it was driven in part by a view that, you know, we ought to be very deferential to C-suite decisions because C-suite decisions are being made by free people in a free market. There was a sort of an ideological view that intervention is probably almost always worse than monopoly. And it's sort of a kind of libertarian political view about the relationship of government to the economy. And then, and I think frankly this was especially true in the 2010s, there was a, there's a great Tablet magazine article about this, but there was a like real relationship between sort of the Obama Democrat party and big tech. And big tech was like basically incorporated into the way Democrats hope to govern the country. And so leaving big tech alone was like a necessary ingredient to their plan for government. In 2013, he actually explicitly said, 'We're not going to bring any enforcement.' Exactly. And they didn't. And that's sort of when the ad tech and search monopolies that Google had started to grow.
I mean, I obviously think that that was a mistake. And look, like, you know, this is like an interesting conundrum for enforcers that take big tech seriously. We've got two things that we're trying to thread a needle between, two sort of opposing problems. The first is we don't, and I think this is especially true for little tech, we don't want an ideological predisposition against M&A activity because M&A is part of how little tech companies can really realize their value. And if people invest in little tech companies and think they can't get their money back out, they just won't invest. People will have their money locked up in little tech companies. So, we can't have an ideological predisposition against M&A. It is part of how we innovate because that's what helps unlock capital.
Yeah. I know. I know you do. But on the other hand, we don't want to have an ideological predisposition that's sort of just like government should not intervene. The risk of monopoly is not that bad. And then we wind up in the situation where we have Meta Instagram where you have a single purchase and you know the FTC is going to trial in a couple weeks in the Meta Instagram matter, you know, or the Google ad tech which involves some acquisitions although that was mostly about tying but we both don't want to lock people's investment and dry up capital to our innovators we also don't want to say like well then we need sort of you know open season in M&A everything goes because we want to make sure the capital's flowing and I think you know someone asked me at another conference or maybe was an interview whether what I was proposing was MAGA antitrust and I guess that it sort of is. My view is I don't want antitrust wedded to either pole which is categorical hardcore opposition to M&A activity which hurts innovation and but I don't want to replace that with like monopoly concerns are overstated. Government should rarely, rarely intervene. I want vigorous antitrust enforcement because it's good for the economy because I think monopoly can be as dangerous in many ways as big government. And you know, I'm sensitive to the argument that you know big government is bad. I'm a Republican. Like I've embodied that for a long time. I don't want to replace big government with big monopoly. I don't like either of them. And I don't think any of us should have to live under either of them. And both of them can obstruct individual liberty in very similar ways. Government is obviously slightly different because they can send men to kick in your door with guns in a way that you know large companies cannot. But if a company can drive you out of the public square on social media, if they can drive you out of employment, or if they can make sure that your idea that could be groundbreaking, life-changing for tens of millions of Americans or maybe the whole world will never see the light of day because it's a potential competitive threat to their monopoly, they can really constrict all of our individual liberty in ways that should terrify us almost to the same extent as government. And so that's what I'm after is an antitrust policy that recognizes that you know M&A is part of unlocking innovation, achieving President Trump's golden age, but does not say therefore we need M&A all the time. That takes antitrust enforcement seriously as one of the ways we prevent replacing big government with big monopoly.
