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tv   Free State Foundation Holds Policy Conference  CSPAN  May 23, 2022 12:02pm-12:57pm EDT

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go to >> tonight canadian officials testify on increasing energy and mineral partnerships with the u.s. to help the best from russian energy. watch at eight eastern on c-span2, c-span now, our free mobile video out or anytime online at >> c-span is your unfiltered view of government. we are funded by these television companies and more including charter communications. >> broadband is a force for empowerment. that's why charter has invested billions building infrastructure, upgrading technology, empowering opportunity in communities big and small. charter is connecting us. >> charter communications supports c-span is a public service along with these other
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television providers giving you a front row seat to democracy. >> next, a discussion on the mission of the federal trade commission. topics include antitrust policies, competition and consumer protections as well as tentative measures around privacy and data security. this . this discussion was hosted by the free state foundation in washington, d.c. [inaudible conversations] [inaudible conversations] >> okay. we're going to start back up in just a minute, so if anyone will begin to take their seats, and we're going to get started. i continue to be amazed at how well that works every time i
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said, but thank you for that. okay. well, officially we are going to reconvene and get started on the last panel which i think we styled the view from the ftc. but there's a lot that can be covered under c that topic. so once again welcome for those who may just be joining us at this point, and again i want to welcome our c-span audience as well, and thank c-span again for being here to cover this important conference. now, i want to say just before turning it over to our moderator that christine wilson is
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obviously not here in her chair. she's here with us -- shias here by zoom. she couldn't join us because of covid related reasons but we are delighted that she will be here over zoom and can participate. so i want to turned over to maureen ohlhausen as i have done with every other session. marine, i'm not going to read your whole bio here. i'm going to refer again to the program. you're welcome to do whatever you wish with the other two commissioners, but i do want to say that, number one, i am delighted that is with us again because, i say again because we have been grateful you participated in past free state
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foundation events, and you did that when you were a commissioner at the federal trade commission as well as acting chair of the federal trade commission. so it's hard to think of anyone that's more qualified to moderate this last session then you are. so with that i'm going to turn it over to maureen ohlhausen. >> thanks so much, randy. i'm delighted to be here. i'm particularly honored to be interviewing 2f tc commissioners, commissioner phillips who is here with me, and commissioner christine wilson who is joining us through the magics of zoom. their bios are in the materials and i won't spend a lot of time belaboring that because with so many interesting topics to talk about any short amount of time. so there's one thing, what i'll say is my first question among
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others is that ftc and doj have asked for comment on reviving our guidelines. and rfi as it is known and the comments were filed recently in april. and the free state foundation submitted comments that describe some recent mergers in the telecom space and question whether the rfi skepticism of mergers are sufficiently justified. i would like to start out with commissioner wilson and ask what your thoughts are on what changes may be in the works and whether any changes are necessary. >> thank you so much, maureen and randy for inviting me to join you today, and my apologies that it can't be there in person. it's always fun to appear with noah. saga say i'm speaking only for myself and not for any other commissioner, although i will probably agree with 99% of
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everything that noah says. with respect to your question, maureen, to take a step back, commissioner phillips and i supported the issuance of the rfi, the request for information with f respect to the merger guidelines, and as we expressed in a statement that we issued when the rfi was held, the ftc has a long history of -- [inaudible] -- examination -- [inaudible] connecting hearings and workshops and roundtables and selecting input from stakeholders. so we agree that it is a good thing to revisit the merger every so often to ensure that the guidelines still reflect sound legal precedent and sound economic analysis, and dynamic technology markets and other emerging forms of competition in industry. and so we welcome the issuance
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of the rfi. with respect to the changes that will ensue, i think the jury is out on that. we have had something like 1900 comments that have been submitted so far. we've had some listening sessions hosted by ftc and doj, and so we are still in some ways collecting input from stakeholders. with respect to the changes that we might see, i can hazard a guess. if you take a look at the rfi it appears that there is some assumptions baked into the questions, and i believe that those assumptions are problematic. and so i would very much appreciate the submission of comments on a couple of topics that i'm going to mention now other a topics that commissioner phillips and i mentioned in our statement that was issued when the rfi was issued. so, for example, the rfi six
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examples of mergers that harms competitions to compete with the merged firm. this question clearly is equating harm to rivals with harm c to competition but we hae decades of precedent indicating that, in fact, the purpose of the antitrust laws and the united states is to protect competition, not competitors. and so that assumption that appears to undergird a set of questions is worthy of discussion in the comments. and then second there appears to be an assumption with respect to the efficiency questions that mergers typically generally do not generate deficiencies. this is a worthy area of inquiry. we want to be sure we are tailoring our analysis to reality, and so it is good and right to collect information on whether and to what extent mergers create efficiencies but
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i think is going in assumptions they tend to go don't generate efficiencies is contrary to empirical evidence that we are aware of. and so i look forward to reviewing the public comments that are submitted, and i do hope that i p can have a very collegial and open and collaborative discussion with my colleagues on the commission and ask the antitrust division to ensure that we reach a sound and sustainable version of the merger guidelines that reflect sound legal precedent and sound economic analysis. that's the only way that the merger guidelines thatsi are created will actually be durable and useful to courts, parties, and agencies. >> thank you commissioner. there is enormous interest
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because it applies across the board to every industry. those comments also highlighted the issue do you think they need to have greater scrutiny especially in digital markets? >> it's a great privilege of my life to have opportunity thank you to the freestate foundation. i want to echo the qualifier but i will say it is just my view and not necessarily the view of the other commissioners as noted the two of us do tend to agree that although not all of us agree on everything. maybe the qualifier can be shortened in the future.
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>> comes from a great article about acquisitions not only the tech space but the pharmaceutical space. what they noted is if you look at the development of drugs over time, drugs that seem to have potential competitors , where the deal to acquire them, it was not getting notice to the agency they were seeming not to develop at a much higher rate so then there are times when one company will acquire another with a product in development and then they cancel the development there are a lot of reasons that the statistics or something in the article is worth reading. but the place i would start
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it's not just big tech the one that had coined the phrase killer acquisition is about the pharmaceutical space drug development and drug manufacturer. do we need to be looking at acquisitions of competitors? absolutely. and look at the last two years and case after case we are concerned about this dynamic sometimes the competition will come not from another company that looks like the incumbent that from a smaller nation competitor. 's we don't have decisions recently on the specific issue
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but for us to take that and reflected in the guidelines and not know where i heard it first i agree with the sentiment and explaining to parties into the public what it is we're doing. and then to look at that experience in greater depth. >> that was brought up as the acting chair. >> so right now i went to turn to some activity in congress it is considering bills to impose new obligation on a small easily identifiable
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group period with large penalties for violations and the ada just wish it issued comments raising concerns about the bill and cautioning against from the antitrust law to protect the competitive process overall rather than a certain set of competitors against others. so commissioner do you think they could move away from the consumer welfare focus to more of a serious approach and what are the risks and benefits? >> and problems and competition from the legislative perspective so broadly speaking is the model where we have rules intended
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and the clayton act and those are rules that are generally general and we also have examples in history of more specific application and then regulation look at a particular market we need a rule and a lot help accomplish this and what's interesting about the proposals you are discussing so they have a very different tactic. so there is a conduct and when certain companies do it and not a particular industry and
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business conduct. >> so it's clear because of the rhetoric and how the bills are drafted so i would start from the premise that whatever is being done is not really about the competitive process or competition it's about identifying a set of terms and here are things you cannot do everybody else in the market is allowed. that is an approach to policy so we start with definition
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and then talk about big tech. and these four or five companies but for the most part they are different businesses. apple business is very different from facebook but for the most part we are talk about establishing a similarity of these companies for purposes of legislation very big words like gatekeeper and that's we get that conversation. >> like you have a monopoly market? [laughter] for example and that
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businesses need guardrails understand the rules of the road and right now states with conflicting opinions about what the guardrail should be with that national regime also with conflicting ideas. so in order to how to comply with the law so i do believe
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it's necessary to federal privacy legislation and i tend to be pollyanna but i'm more hopeful than i have been because i hear there is a concerted push and that would be wonderful especially in the current environment it's important for congress to make the value judgments with privacy and data security and how that gets balanced. that's a lot that they can do in the interim with privacy practices are unfair or
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deceptive and then to have jurisdiction under a number of other laws like the children's privacy and then we have a body of consent that provide good rules of the road taken together and that is the common law of privacy in the united states so we can continue to apply the existing precedent that we have and i would welcome that if we have federal privacy legislation that provides the guardrails for what our jurisdiction is and how the law needs to be enforced. it is appropriate for congress to make the value judgment but i do believe it is appropriate for congress to delegate to the ftc's certain rulemaking
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authorities on these issues as it has done. so i hope we see federal privacy legislation and i will do what i can to get that across the finish line. >> . >> we will see if this is the year. said that interest of using ftc to variety of topics including advertising. expressing doubts of the ftc's authority i was hoping you would share your thoughts with the audience. >> the simple version is it is illegal and unconstitutional. why? let me start with the illegality. there is a clean that eager
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beaver lawyers in the sixties tech a statute in 1914 gave us broad regulatory power across the country with the exception of nonprofit. i don't think that's right. they were very smart lawyers and he managed to persuade the dc circuit that this was so back to read that opinion and the judge year not sure we looked at the legislative history it's not clear but we have a strong presumption in favor of regulatory power for agencies because that's more efficient and effective, that opinion looks so different
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from the major questions doctrine today. think about what the supreme court wrote with the vaccine mandate for the eviction band the courts are clear at where congress wants to pass agencies of broad regulatory authority have to be clear, and it's clear from the dc circuit opinion congress was anything but clear. it's important to understand and we need to look no further that all of the different ideas that folks think they can put into competition. why? because it is safe on unfair methods of competition and the ftc with through a policy statement putting very basic limits on what they might need and this is the democrats had the majority they recognize no
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limits to their authority of the place to labor and premise to close in commercial surveillance whatever that means and on and on. why are unfair methods of competition interesting? like the national industrial recovery act and the new deal which the supreme court said constituted had unconstitutional delegation of authority from congress to the administrative agency so broad and so much power that congress was literally taking legislative power vested in the article one in the constitution and just giving it to an agency that was the national industrial recovery act. our statute says unfair methods of competition but the
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court in the thirties had no idea in the sixties ftc lawyers would discover regulatory authority. so not only is this to assert a lot of rules that one of the complaints against the antitrust reformers is that over the years telling us
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again and again take a look at the conduct and understand the cost and benefits not just to say that looks bad. so on the substantive level a claim to make these rules but the court says that underlying substantive going back to justice brandeis so depending on what they do in addition to the statutory problem in addition to the constitutional problem there can be a substantive problem. >> that will be quite the feast for constitutional lawyers if the ftc moves forward in this area and in addition to those antitrust
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lawyers. i know we are running short on time but it is a secret there are sharp disagreements with the bipartisan approach over the past four years that was certainly my experience when i was at the ftc even the staff has expressed their concern. so commissioner wilson you gave a speech explaining your view this was not only a different style but more fundamental difference philosophy.
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would you be willing to provide some highlights? including commissioners to be a collegial and bipartisan that makes the community such as special place and then providing me with those opportunities of the entire career and chief of staff and then in the law school i have seen in the commission several different levels of perspectives from i was in private practice and then you
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indicated the federal employee survey would issue with those dismal results. from a disdain marginal and that is one data point and then to have a broad consensus how to apply the antitrust laws for many decades and then we crown the analysis on sound economics. and of course that arena has
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evolved over time it isn't static as we indicated in for those merger guidelines we want to see new learning inc. it is a constantly evolving area of law as it should be. and first we have calls to for the consumer welfare standard in the better deal for senate democrats and now those who are in the white house arguing and then to arrive at the ftc with the staff over the last 40 years and then we saw the
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arrival of a complete disregard and then not to mention complete disregard for staff and other developments so i must admit i was a bit mystified i put my old political science books off the shelf. and then i began to realize and then the worldview. i am not trying to be inflammatory better process in a scholarly way.
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and then the parallels i may be seeing. and that is an attempt to do that. and as a tool of the ruling class and critical legal studies case have a similar perspective. and here is the upshot. and those of the community labeling the federal trade commission the antitrust community at large in the ftc staff specifically but then
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also as corrupt which is also reprehensible and due process is a subset of the rule of law and to see the notion of due process escapes on the road to justice. and then the approach to governing the ftc. commissioner phillips and i with those items at which we have no transparency and are unable to get information and documents from staff and that due process afforded to other stakeholders similarly. and that notion of due processes and is just a tool used in that may explain some
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of the behaviors we see governing the ftc. and then how it can actually draw back and then that item is valuable. and labor has been poured into it, then a decreased price is best buy s-uppercase-letter. and then reaping the rewards so if you read what marquez said about constitutionalism.
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is from the capitalist of the workers and then ultimately they will revolt. and then just for those deficiencies. and then with respect to consumers we hold consumers to be the attention of the antitrust enforcement that labor has now been substituted and consumers take a backseat and that is very much in keeping with the approach of critical legal studies with respect to consumerism and the commoditization with the serious value and then if you
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go back and look they view it as moving through different phases and every subsequent phase is superior to the one that we just passed through and actually it is good because it leads to progress and may be the reason to be so viciously critical of the ftc commission and staff and the reason chair, and has been so disdainful with those survey results is because they don't care if the ftc gets trashed because they believe that progress is right around the
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corner and it pains my heart to say i love the ftc community i think it is a community of american consumers and i find it reprehensible when they attack staff as lazy and corrupt because there is not a harder working group of people in the federal government. >> thank you commissioner there are so many interesting topics but i have to turn it over. >> thank you to the commissioners don't anyone go anywhere for a couple more minutes before we have a chance to say goodbye because i mentioned earlier that we
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have a tradition to have a couple of questions that will be important to me over the years. so those of you in the audience come you can formulate a question in your mind and asked two questions really. i have read the article myself as a terrific scholarly article review agree with all of it or some of it you will learn a lot by reading it. i commend you for that.
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in fact when i was reading it i thought this is a future think tank for sure. maybe with the free state foundation but on other days i want one of you to explain to the audience just to make a connection you kept referring in your article and explain for someone that may not know the connection, i assume you are referring to louis brandeis. what does that term apply to you? and secondly it is important to me the topic of the nondelegation doctrine those constitutional issues for
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agencies with the major questions. i appreciate. commissioner wilson do you agree with what commissioner phillips said regarding that questionable constitutionality with the unfair methods competition? and also explained that we are on the same page what you are referring to you can answer the question about umc first. >> i will say i agree with everything that was said about the constitutionality looking at the failure of heavy-handed regulatory regimes in the united states we have a lot to
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learn from this lesson it was an increase the price because the decrease of output because they prefer arrivals over competition so for that reason as is articulated that's not a road that we should travel i'll let you handle that questions. >> so the point that needs to be made i think it is bad idea that this vision is that we can just regulate more and more we will have better and better is not borne out by history but the way they talk about rulemaking there is no indication to suggest that whatever be the result in
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particular so obviously this is a reference to the movie brandeis as an advisor to president wilson instrumental setting up the ftc but it is a title and a label that a group of people have been that it is fair to say leaders and advocating for dramatic antitrust reform with new regulation in the economy have adopted toward themselves and also includes tim will at the white house and barry lynn is the apex from the open market institute that is the group josh had a different term but
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they have used the word neo- brandeis i like to give them the names of the choose for themselves in the sense of looking at large private institutions and with more distributed power they are like brandeis to listen some of those policy proposals from that jurisprudence when he was in that position there is some real distinctions between the two. >> that's helpful to me and others because the term as you so much now so if someone reads as raise your hand they may want to know what they are
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buying into. that's good. if anyone in the audience has a question willing to entertain as i said before, and the questions are better for statements and then to the back. >> please identify yourself. >> high-level given 100 years ago there were properties of cocaine and coca-cola and now fast-forward to today we know mobile phones and mobile phone apps are creators that they hire neuropsychologist to make them more sticky what are the odds there are labels around
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that. >> it's hard to assess odds where the providence of such a rule and one of those issues tackling with privacy or other uses potentially is the information symmetry that consumers may not understand fully what they are engaging in and one of the things i we start would be useful is to look more carefully at the labels to understand what are ways we can get good information out to people? who do this in other areas we think of food. maybe is not efficient for me every day to examine each
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label. if that cost is fairly low that can be beneficial. allowing consumers to shop across products what are you doing with your data? and have them nutrition labels to take complex subject matter to boil it down. and then to create market where they may not naturally arise. so what constitutes addiction or what should be regulated i remember i was growing up my father said don't watch tv and
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then said don't play nintendo it's addictive i said i don't care. but then we label at that and then seek to apply labels i think we should leave that for another day but definitely there is a lot of people focused on why people are so attached. >> we will continue the discussion when we close out i have a contract that relates to the 2:00 o'clock our. [laughter] but ask your question but then nobody leaves. >> should the senate and house convene a special committee to
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investigate potentially un-american activities you have identified from the ftc at the white house? >> commissioner? >> yes i had the question. thank you. i am attempting to understand the data points that i see and when they sent all decisions are political it seemed appropriate to me to understand everything she has written because she said all decisions are political. as a political science major
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and in attempting to orient myself. >> christine has not yet said when she leaves the free state foundation i'm sorry the ftc she wants to join the free state foundation. >> we appreciate your scholarship and participation. before we give a round of applause i went to and by going back to what i said this morning which is when we have the's events and then the work at the free state foundation we definitely have our own set of principles and preferences and predispositions but we
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value having others opinions represented and heard with these types of discussions but i don't want any difference of opinion over the last four and half hours that we have been here there has not been any other place in washington over the last week where there has been such a stimulating discussion among so many great speakers about so many important issues. i believe that is i believe that is true. i want to thank all of the people that spoke earlier, of course, and now i would like for you to join me in thanking maureen for moderating this panel, maureen ohlhausen, commissioner noah phillips for
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being here and, of course, christine wilson as well. so with that we're going to say thank you, and thank them, and then i'm going to declare this conference adjourned until next time. thank you. [applause] [applause][e conversations] [inaudible conversations] >> this week on the c-span networks the house is not in session but the senate will meet starting tuesday. senators are expected to debate domestic terrorism legislation following the mass shooting in buffalo among other issues. on wednesday at 10 a.m. eastern live on the c-span now app an
12:54 pm the u.s. special envoy for iran testifies before the senate foreign relations committee about negotiations over potential nuclear agreement between the united states and iran. at 11 a.m. eastern on c-span the house energy and commerce committee hears from fda officials and heads of leading baby formula manufacturers on the baby formula shortage. on thursday at 9:30 a.m. eastern on c-span the senate armed services committee holds a confirmation hearing for the reappointment of general christopher come boldly as the supreme allied commander europe for nato. watch this week live on the c-span networks, or on c-span now, a free mobile video after calls led over to for scheduling information or to stream video live or on-demand anytime. c-span, your unfiltered view of government. >> c-span brings you an unfiltered view of government.
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>> next, state officials and activists testifying before the senate rules and administration committee on how the federal government can assist with election security and infrastructure. the witnesses talk about technical issues such as paper shortages for ballots, procedures for mail-in voting, and needing funds to upgrade equipment. this is an hour and 45 minutes. >> [inaudible conversations] [inaudible conversations] [inaudible conversations] >> good


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