Why Amazon is wrong to fight Lina Khan

I have been amazed by ecommerce giant Amazon’s attempts to try to scupper the appointment of the new chair of the Federal Trade Commission, Lina Khan. 

The claim is that she couldn’t possibly rule impartially on the company because she has built a career on developing a new theory of antitrust, which looks at platform companies such as Amazon in a different light than during the previous 40 years of monopoly law. The company claims she has built her “academic and professional career in large measure by pronouncing Amazon liable for violating the antitrust laws”.

Let’s put aside the absurdity of the notion that the head of the FTC isn’t allowed to have opinions about antitrust, even if they are in juxtaposition to Amazon’s own opinions. Let’s also put aside the notion that Khan’s position is mainly down to her opinion on Amazon — she has in fact explored antitrust in a variety of different fields, from pharmaceuticals to food to the airline industry. The fact is that Khan’s position, like many in the “new Brandeis” school of antitrust, is actually crucial to understanding the rise of large technology platforms and the superstar effect within the intangible economy.

Khan believes that the Chicago school, laissez-faire interpretation of consumer price as the only real measure of harm in antitrust cases is wrong. For roughly four decades, antitrust scholars — taking their lead from Robert Bork’s 1978 book The Antitrust Paradox — have pegged their definitions of monopoly power to short-term price effects; so if any company in any industry makes prices lower for consumers, the market must be working effectively. 

Khan set out a simple but powerful counterargument: that it doesn’t matter if companies such as Amazon are making things cheaper in dollars if they are using predatory pricing strategies to dominate multiple industries and choke off competition and choice.

“I was fascinated by Wall Street’s view of Amazon, and how much it differed from what conventional economic theory would say about the company,” said Khan. Speaking to hedge funds and banks during her research on Amazon, Khan found that they were valuing the company and its growth potential in a way that signified monopoly power — something that classic economic models were missing.

As she told me during a Lunch with FT in 2019:

“At a basic level, I’m interested in imbalances in market power and how they manifest. That’s something you can see not just in tech but across many industries. A lot of people talk about markets as these forces that are the product of globalisation and technology and these things that are totally unrooted, that are totally separate from laws and legal institutions.”

Khan, like many in her cohort, believes otherwise:

“If markets are leading us in directions that we, as a democratic society, decide are not compatible with our vision of liberty or democracy, it is incumbent upon government to do something.”

Amazon’s position actually bolsters that idea. Like the industrial titans that were eventually brought to heel by Louis Brandeis (who was responsible for breaking up Standard Oil), Amazon believes that it is above the law — or at least that it can influence the White House. It’s crucial that it does not. One of the key things that Democrats will be judged on in the midterm elections is how they did or did not stand up to corporate interests relative to those of average people.

I also expect that Amazon may take the place of Facebook as antitrust target number one, since it’s a clearer case to make — the ecommerce giant makes markets, and plays in them at the same time. Like railroads, or investment banks and commercial banks, it can easily be broken into component parts that do different things — one part could run the ecommerce platform, another logistics and cloud services, etc. Certainly, it’s very easy for the average person to understand that a company that runs the platform on which the majority of retail commerce now runs globally should not be able to use that platform in opaque ways to favour its own products.

There’s nothing nefarious about that. It’s just common sense. I suspect that both the public and the White House will see it that way.

Peter, would you agree? 

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Peter Spiegel responds

Rana, I would never disagree with you in your area of expertise (dirty little secret: when I need guidance on technology regulation issues, I often call Rana to set me straight). But what struck me about Amazon’s stance on Khan’s appointment was not its novel theory on competition law but rather its exceeding ham-handedness. And Big Tech’s history of botching its relations with Washington is something I have a bit of expertise on, having covered Microsoft’s fight with the justice department in my first FT posting decades ago.

Thomas Penfield Jackson, the Washington-based federal trial court judge who heard the US government’s case against Microsoft, once said that as part of his ruling ordering the company to be broken up, he had been tempted to force co-founder Bill Gates to write a report on Napoleon Bonaparte: “I think [Gates] has a Napoleonic concept of himself and his company, an arrogance that derives from power and unalloyed success, with no leavening hard experience, no reverses.”

Judge Jackson was ultimately removed from the case for his unpolitic comments about Gates and Microsoft. But his analysis was not wrong; Gates had approached the US government as if it didn’t apply to him. Jeff Bezos and his generation of tech founders were said to have learnt from Gates’ experience and taken a more deft approach to Washington. For his part, Bezos hired armies of lobbyists, purchased a prominent local newspaper and opened a second Amazon headquarters in DC’s Virginia suburbs. 

But if his tactics on Khan are any indication — as you wrote, Rana, can Amazon really be serious about an FTC chair being recused for having views on antitrust law? — Bezos hasn’t learnt well enough. His rival Mark Zuckerberg of Facebook has had similar problems on Capitol Hill, where his initial effort to avoid committee appearances were only made worse by his robotic and evasive performances once he showed up to testify. On a personal note, I once had a senior tech executive completely blow up at me in righteous indignation when I suggested the company’s defence against accusations of tax avoidance weren’t entirely convincing. 

In other words, when it comes to Washington, there still appears to be a sense among some tech leaders that they are somehow above the grubby rules and regulations that govern the rest of capitalism. It’s a view they need to shed very quickly, or the increasing, bipartisan daggers that are out for the industry may soon find their target.

Edward Luce is on leave and will return in mid-July.

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And now a word from our Swampians . . .

In response to ‘Russian crime but little punishment’:
“I absolutely share the distaste at [Angela] Merkel and [Emmanuel] Macron cosying up to [Vladimir] Putin, and agree that as far as western resources allow we should support those unfortunate enough to be in his way. But ultimately my instinct is that Russia will most certainly huff and puff, may blow others’ houses down, but won’t actually be the one to blow our house down. Whereas an upcoming démarche with China could easily prove to be the end of Pax Americana — akin to Suez for the British and Dien Bien Phu for the French.” — Roger Exwood, Kent, England

“China may be the greatest challenge to the US in terms of economic power but Russia is the greatest threat in terms of US democracy. The summit may or may not have been a diplomatic error in terms of providing kudos to Putin. Its value lies in whether the rhetoric is backed up by actions. Putin will already be looking at ways to test [Joe] Biden’s resolve. The test will be challenging but ambiguous. If Biden ignores the ambiguity and responds very firmly, inflicting real pain, we will know where President Biden stands on the defence of democracy. It is time the west stood more firmly up to Putin and in favour of democracy.” — David Jepson, Liverpool, England

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