A powerful coalition urges caution in antitrust cases

WASHINGTON — Thomas Lambert, a professor at the University of Missouri’s law school, gave his former colleague Josh Hawley a warning before Hawley became a senator in January.

Lambert had been wary of Hawley’s decision in 2017, as Missouri’s attorney general, to open an antitrust probe into Google, saying he didn’t see the state’s logic for the case. While he wished Hawley well in Congress, and said he was glad they were friends, Lambert also noted that he would continue to speak out when he disagreed with the senator’s policy positions.

“And he said, ‘I assume you mean on things like tech,’ ” Lambert recalled recently. “And I said, ‘Well, mainly.’ ”


Their interaction highlights a deepening divide in Washington and around the country. The rising movement in the United States to consider charging the country’s biggest tech companies with violating antitrust laws is running headlong into powerful and well-funded conservatives and libertarians committed to pushing back on those efforts. They include academics such as Lambert; lawmakers such as Senator Mike Lee, Republican of Utah; and groups such as the Koch political network and others that are connected to the tech companies themselves.

These conservatives have largely dominated antitrust law for decades, leading to few breakups of big companies or blocked mergers. Although their ranks have dwindled somewhat in the last year, as anti-tech arguments have become more bipartisan, they still occupy positions stretching from Capitol Hill to campuses around the country.

But their power and influence have never been tested like this. The House Judiciary Committee, the Federal Trade Commission, the Justice Department, and almost every state attorney general’s office is investigating at least one of Silicon Valley’s giants. Senator Elizabeth Warren, Democrat of Massachusetts, has made breaking up the tech giants and other corporate behemoths a prominent part of her presidential campaign.


Hawley, a Republican, has helped lead efforts in Congress to rethink how government handles big tech firms. He recently told Facebook’s chief executive that he should voluntarily spin off two of his company’s most valuable services.

His actions have pushed Lambert to deliver on his earlier warning, which Hawley says he does not remember.

“This thinking is dangerous for conservatives,” Lambert recently tweeted after Hawley brushed off his libertarian foes. He has also repeatedly pushed back on Big Tech’s critics, recently denouncing their “snobbery and know-betterism.”

At the center of the debate is a legal standard used to decide antitrust cases for decades. Judges and regulators often ask whether a dominant company is harming consumers and usually hang their analysis on whether prices have gone up or down.

Some proponents of looking aggressively at the tech companies argue that existing laws are adequate and that the government just needs to enforce them.

Other proponents of tough action say Congress should modify existing laws to institute a new test for monopoly cases, like factoring in the effect that a company’s dominance has on workers or competitors. Still others see a solution somewhere in between.