Makan Delrahim, Assistant Attorney General in Charge of the Antitrust Division, DOJ Antitrust Division: Popular ends should not justify anti-competitive collusion
I have posted on the Antitrust Division’s odd investigation of four auto companies that reached a deal with the state of California. My attention has been called to the above irrelevant, platitudinous essay by the head of the Antitrust Division, and to a September 13 letter by Senator Kamala Harris. I reproduce the letter, after which I’ll have a little commentary.
Mr. Delrahim’s piece begins by assuming that the conduct he’s investigating is illegal, and draws the unsurprising conclusion that it’s just fine and dandy to investigate illegal conduct. He is a poster child for petitio principii, begging the question.
Four auto manufacturers—Ford, Honda, VW, and BMW—entered into an agreement with the state of California, as described in Senator Harris’s letter. Not participating were General Motors, Fiat Chrysler, Hyundai, Kia, Mazda, Mercedes-Benz, Nissan, Subaru, Tesla, Toyota, or Volvo.
Insofar as the four companies merely agreed with the state of California on a course of action, their conduct fits squarely within the constitutional protections for lobbying and political participation recognized in the Noerr-Pennington doctrine. In his piece, Mr. Delrahim elected entirely to ignore this constitutional issue.
The widget industry, which has more than a dozen members, has been under attack for allegedly making products that are harmful to public health or safety. Industry leaders are motivated to address these concerns by some mixture of (1) corporate good citizenship and (2) desire to mitigate the business downsides that will ensue from government regulation—which is inevitable, unless they do something to head it off at the pass.
So motivated, all (or at least almost all) of the industry agree that they will all up their game—in other words, that they will set some minimum health and safety standards, and will cease to offer products that don’t meet those standards, even if some of their customer base would like to keep on buying them.
Note this key point: such a revision to their business practices probably wouldn’t make sense to any individual seller, unless they had assurance that all or almost all of their competitors would go along too. Otherwise, each company would risk losing market share to competitors that did not abide by the new standards.
Legal analysis: the hypothetical agreement would not be per se illegal, but it would be subject to antitrust scrutiny, and it might well pass muster—particularly if the health and safety concerns are well established by objective evidence and address a serious public risk.
Mr. Delrahim could legitimately direct the Antitrust Division to investigate an agreement like the above hypothetical case. That’s because the agreement would be subject to antitrust scrutiny under the “rule of reason.”
But that is not what seems to be going on in the real world. In the real world, only four auto makers are in. GM is out. Toyota is out. Etc. Etc. Moreover, one of the companies that’s in the agreement is BMW, which makes luxury cars and only competes somewhat indirectly with Ford, Honda, and VW.
That suggests that each of the four participants viewed the California agreement as in its individual business interests regardless of what its competitors did or did not do.
It suggests that, unlike the hypothetical above, there is no collective action to suppress output of dirty cars, only a constitutionally protected collective agreement with California to limit the more stringent regulatory action it was attempting to take.
This is tricky, difficult territory, but I feel the need to say just a few things.
Lots of white pundits have been pontificating on this matter, and some have predicted that Biden’s purported gaffe will drive down his black support. I am a white person, and it seems presumptuous to speculate about how black people might react. So I will not do so, except to say that black people are like white people: they are diverse, and some see things differently from others.
So I don’t speak for black people. Nor do I speak for white people. I speak only for myself.
I volunteered with little kids in the inner city for about twenty years. Biden’s point that poor children typically come to kindergarten with significantly smaller vocabularies than middle class children is, in my experience, entirely accurate.
An intelligent second grader didn’t know the meaning of “messy,” so he couldn’t answer a multiple choice question correctly, so his teacher thought he was developmentally disabled. He was fine: it’s just that he had a low vocabulary. And once he learned what “messy” means, he had no trouble answering the question.
Fourth graders, reading The Littlest Mermaid, didn’t know what it meant when the Littlest Mermaid swam to the “surface” of the water. Another fourth grader had trouble with her homework assignment on the weather because she did not know the meaning of “thunderstorm.”
And, no, these children were not at all retarded. They were children of normal intelligence with poor vocabularies.
And a brief word on helping parents to raise children. In the place where I live, there is a black upper class, a black middle class, and a black underclass. Among the latter, some do fine raising children—except for the fact that they don’t have much money. Some others do lack parenting skills, and their families may suffer from various types of dysfunction.
Just now, some fine African American ministers down in the inner city have joined in an interfaith effort, involving a variety of religious communities, some predominately black and some predominantly white, to identify families that would benefit from friendship and mentoring, and to provide that support.
Again, others have different perceptions and others can speak for themselves. My own African American friends in the inner city know there are problems there, they are looking for help, and they are not choosy about where the help comes from. If you are a college student wearing a hijab and you want to volunteer to help down at the AME church outreach program, just come on in. If you’re from a white congregation in another part of town, with a different theology, and you want to help, then just come on in.
As for Dr. Aardvark and myself, this is the personal reparations we feel called to make.
Today’s readers, so far, come from Hong Kong SAR China, Kenya, India, Mauritius, Serbia, the United States, and Vietnam. I had to look up Mauritius. Seems like a nice place, and I hope y’all are staying above water. And thanks again to the Hong Kong readers, though I would have thought you all would be busy on other projects.
The New York Times has come up with spicy new stuff on Brett Kavanaugh’s penis and its experiences at Yale. In response, President Shit for Brains has urged Justice Kavanaugh to sue for “liable.”
I assume that Justice Kavanaugh will not in fact bring an action for defamation. Even if he is innocent, the suit would probably be dismissed under the constitutional rule announced in New York Times v. Sullivan. And, besides that, he’s probably guilty. As Oscar Wilde found out, if you are in fact guilty, it’s very unwise to bring an action for defamation.
But let us, nevertheless, perform a little thought experiment about the Trump tweet.
By Aristotelian logic, after having been advised by the Very Stable Genius to seek a legal remedy, Justice Kavanaugh either
If Justice Kavanaugh does not take the advice, then the logical effect of Trump’s tweets will be to cause Trump followers to doubt Kavanaugh’s innocence.
But if Justice Kavanaugh does take the advice, then he bears some risk that a court might allow the case to proceed, despite the Sullivan rule, in which event all the actors in penisgate, including himself, and all the witnesses, will have to testify. Which, in turn, would give the Democrats a golden opportunity to try to impeach him.
Given all the above, I think we progressives may, on this one occasion, celebrate Trump’s advice and urge Justice Kavanaugh to seek legal redress, immediately if not sooner.
In short, Justice Kavanaugh, man up.
That, no shit Sherlock, was the first tweet of the day.
Yeah, that pretty much sums it up. A whole bunch of French fries short of a Happy Meal.
Bill Kristol hangs out over at thebulwark.com. Kristol’s smarmy face would be the perfect illustration for a poster bearing the legend OFTEN IN ERROR BUT NEVER IN DOUBT. So, when reading thebulkwark, I understand that you need to consider the source and take everything with a grain of salt.
All that said, let me recommend Bruce Gyory, No Man Is an Island (But Trump Is Getting Kind of Lonely): The polls show the president grew more unpopular over the summer. After diving deeply into the data, Gyory sums up,
The media ought to pay particular attention to the percentage of registered voters who think Trump does not deserve re-election and how crucial subsets like independents, suburban residents, and white women with less than a college education feel about the economy, given how strongly opposed other groups are to Trump’s re-election( i.e., millennials, college educated white women and minority voters, especially minority women). Moreover, if a majority of the electorate comes to lose faith that Trump is advancing an economic recovery, given their long held mistrust of his handling of foreign policy and race relations, then Trump will be adrift in harsh political waters heading into next November.
Of course things can change. Trump can right his ship politically and events tied to Democratic mistakes can change the current pattern. But there is nothing verifiable in the most recent polling data to make the case that Trump is on the cusp of turning things around. Yet, too many pundits remain all too traumatized by Trump having won an inside straight in the Electoral College, when that result was actually predicated upon the harsh de facto anti-incumbent rejection of Hillary Clinton. This anti-incumbent wind remains at gale force heading into 2020, but its wrath appears to be directed at political ship of President Trump, not the vessel of his Democratic opponents.
One wonders if Donald Trump has ever read John Donne. If this September swoon locks in as an enduring measurement of public opinion, perhaps the president ought to familiarize himself with that poet’s classic admonition. Donne wrote that “No man is an island” before posing the real judgment, “For whom the bell tolls, it tolls for thee.”
Maureen, it would appear, shares one key characteristic with The Donald: she trusts her gut more than she trusts the data. Having watched the Democratic debate, which failed to inspire her, Maureen has concluded that Trump is going to win again.
As for me, I don’t trust my gut, I don’t trust Maureen’s gut, and I don’t trust Trump’s gut. I trust the data.
I conclude with Ronald Brownstein, How Pundits May Be Getting Electability All Wrong: Democrats are obsessing over which candidate is most capable of beating Trump. But how voters gauge that is far more complicated than it may seem.
This lengthy thumb sucker is not especially well served by the headline someone wrote for it. Its gist is that pretty much everyone on our side of the aisle places electability as the first priority, but that our primary voters think about electability in ways that are quite different from professional political consultants and politicians. It’s interesting, but provides no definitive insights on who is really right about what qualities a Democratic nominee needs to ensure his or her electability.
There is about the piece the whiff of a suggestion that the unwashed masses of Democratic voters are going to screw things up because they are not experts on who is electable and who isn’t. In principle, that could certainly be the case. But, right now, the unwashed masses of Democratic voters are placing their trust in the candidate who polls best against Trump among all voters. That doesn’t sound like a screwup to me. It sounds like the unwashed masses are following the data, and correctly applying the evidence to think about who is best likely to beat Trump.
September 12, 2019
Dear Members of the Senate:
Our hearts are with the victims, their families and loved ones and all those affected by the tragic shootings in El Paso and West Texas, and Dayton, Ohio. These families became members of a club that no one wants to join: the millions of Americans whose lives have been forever altered by gun violence.
Every day, 100 Americans are shot and killed and hundreds more are wounded. These are more than mass shootings; in recent weeks, gun violence has devastated Chicago, Canoga Park, Newport News, Gilroy and Brooklyn, among others. This is a public health crisis that demands urgent action.
As leaders of some of America’s most respected companies and those with significant business interests in the United States, we are writing to you because we have a responsibility and obligation to stand up for the safety of our employees, customers and all Americans in the communities we serve across the country. Doing nothing about America’s gun violence crisis is simply unacceptable and it is time to stand with the American public on gun safety.
Gun violence in America is not inevitable; it’s preventable. There are steps Congress can, and must, take to prevent and reduce gun violence. We need our lawmakers to support common- sense gun laws that could prevent tragedies like these.
That’s why we urge the Senate to stand with the American public and take action on gun safety by passing a bill to require background checks on all gun sales and a strong Red Flag law that would allow courts to issue life-saving extreme risk protection orders.
Background checks and Extreme Risk laws (also referred to as “Red Flag laws”) are proven to save lives. Since Congress established the background check system 25 years ago, background checks have blocked more than 3.5 million gun sales to prohibited purchasers, including to convicted felons, domestic abusers, and people who have been involuntarily committed.
However, in the decades since, the law requiring background checks on gun sales has not been updated to reflect how people buy guns today. The Senate must follow the House’s lead by passing bipartisan legislation that would update the background checks law, helping to keep guns out of the hands of people who shouldn’t have them, in an effort to save lives. Background checks on all gun sales are a common-sense solution with overwhelming public support and are a critical step toward stemming the gun violence epidemic in this country.
Perpetrators of mass shootings, school shootings, and hate crimes often display warning signs before committing violent acts. Additionally, people who end their life with a gun also often show signs that they are in crisis before they act. Interventions in states with Extreme Risk laws have already prevented potential tragedies. Expanding Extreme Risk laws to enable families and law enforcement nationwide to intervene when someone is at serious risk of hurting themselves or others is critical to preventing future tragedies.
These proposals are common-sense, bipartisan and widely supported by the American public. It is time for the Senate to take action.
Organizations with more than 500 employees:
Brian Chesky, Co-Founder, Head of Community and CEO, Airbnb Keith Mestrich, President and CEO, Amalgamated Bank
John Connaughton and Jonathan Lavine, Co-Managing Partners, and Josh Bekenstein and Steve Pagliuca, Co-Chairmen, Bain Capital
Ethan Brown, Co-Founder and CEO, Beyond Meat Peter T. Grauer, Chairman, Bloomberg LP
Ric Clark, Chairman, Brookfield Property Group Fritz Lanman, CEO, ClassPass
Roger Lynch, CEO, Condé Nast
Ken Lin, Founder and CEO, Credit Karma Edward Stack, CEO, DICK’S Sporting Goods Tony Xu, Co-Founder and CEO, DoorDash Doug Baker, Chairman and CEO, Ecolab Richard Edelman, President and CEO, Edelman Julia Hartz, Co-Founder and CEO, Eventbrite Art Peck, CEO, Gap Inc.
Eddy Lu, CEO, Goat Group
Ben Lerer, Co-Founder and CEO, Group Nine Media Yannick Bolloré, CEO, Havas Group
Bill Koenigsberg, President, CEO and Founder, Horizon Media Patrick O. Brown, MD, PhD, Founder and CEO, Impossible Foods Michael Roth, Chairman and CEO, Interpublic
Rob Frohwein, Co-Founder and CEO, and Kathryn Petralia, Co-Founder and President, Kabbage Inc. and Drum Technologies
Chip Bergh, President and CEO, Levi Strauss & Co.
Logan Green, Co-Founder and CEO, and John Zimmer, Co-Founder and President, Lyft Dev Ittycheria, President and CEO, MongoDB, Inc.
Howard Marks, Co-Chairman, Oaktree Capital Management Todd McKinnon, Co-Founder and CEO, Okta
John Wren, Chairman and CEO, Omnicom Group Ben Silbermann, Co-Founder and CEO, Pinterest Bastian Lehmann, Co-Founder & CEO, Postmates Hamid R. Moghadam, Chairman and CEO, Prologis Arthur Sadoun, Chairman and CEO, Publicis Groupe Steve Huffman, CEO, Reddit
Richard Fain, CEO, Royal Caribbean Cruises Ltd.
Scott Rechler, Chairman and CEO, RXR Realty Jon Oringer, Founder and CEO, Shutterstock, Inc. Jack Dorsey, CEO, Square and Twitter
Anthony Casalena, Founder and CEO, Squarespace Zander Lurie, CEO, SurveyMonkey
Arianna Huffington, Founder and CEO, Thrive Global
Blake Mycoskie, Founder and Chief Shoe Giver, and Jim Alling, CEO, TOMS Jeff Lawson, Co-Founder and CEO, Twilio
Dara Khosrowshahi, CEO, Uber Mark Read, CEO, WPP
Jeremy Stoppelman, Co-Founder and CEO, Yelp
Organizations with fewer than 500employees:
Kevin P. Ryan, Founder and CEO, AlleyCorp Travis Truett, Co-Founder and CEO,Ambition
John W. Rogers, Jr., Founder, Chairman and Co-CEO, and Mellody Hobson, Co-CEO & President, Ariel Investments, LLC
Mike Steib, CEO, Artsy
Sean Knapp, Co-Founder and CEO, Ascend.io Andrei Cherny, Co-Founder and CEO, Aspiration Abdur Chowdhury, CEO, Aura
Fahim M. Aziz, Founder and CEO, Backpack
JJ Abrams, Chairman and Co-CEO, and Katie McGrath, Co-CEO, Bad Robot Ari Paparo, CEO, BeeswaxIO Corporation
Ryan Block, Co-Founder, Begin
John Borthwick, Founder and CEO, Betaworks
Raphael Crawford-Marks, Co-Founder and CEO, Bonusly Darren Lachtman, Co-Founder, Brat
Trevor McFedries, CEO, Brud Sameer Shariff, Co-Founder,Cambly
Analisa Goodin, Founder and CEO, Catch&Release, Inc. Andrew Feldman, Founder and CEO, Cerebras Systems George Favvas, CEO, CircleMedical
Alex MacCaw, CEO, Clearbit Tyler Bosmeny, CEO, Clever
Matt Martin, Co-Founder and CEO, Clockwise
Othman Laraki, Co-Founder and CEO, Color Genomics Jager McConnell, CEO, Crunchbase, Inc.
Apu Gupta, Co-Founder and CEO, Curalate, Inc. David Oates, Co-Founder and CEO, Curtsy Brian Ree, Founder and CEO, DAILYLOOK
Saurabh Ladha, CEO, Doxel, Inc.
Andy Coravos, Co-Founder and CEO, Elektra Labs Laurene Powell Jobs, President, Emerson Collective Pradeep Elankumaran, Co-Founder & CEO, Farmstead Desiree Gruber, CEO, Full Picture
Jared Hecht, Founder and CEO, Fundera Jude Gomila, Founder and CEO, Golden Rick Nucci, Co-Founder and CEO, Guru Kara Goldin, Founder and CEO, Hint, Inc. Jeff Sellinger, Co-Founder and CEO, HipDot Prerna Gupta, CEO,Hooked
Cyrus Massoumi, Managing Partner, humbition Kristin Savilia, CEO,JOOR
Pierre Valade, CEO, Jumbo Privacy
William Martino, Founder and CEO, Kadena Jake Perlman-Garr, CEO, Kanga
Warren Shaeffer, Co-Founder and CEO, Knowable Jack Altman, CEO, Lattice
Aaron N. Block, Co-Founder and Managing Director, MetaProp.vc Afton Vechery, Co-Founder and CEO, Modern Fertility
Dan Parham, Founder and CEO, and Tee Parham, Founder and CTO, Neighborland Shafqat Islam, CEO, NewsCred
Sarah Friar, CEO, Nextdoor
Athan Stephanopoulos, President, NowThis Varsha Rao, CEO, Nurx
William E. Oberndorf, Chairman, Oberndorf Enterprises Steven Rosenblatt, Co-Founder and General Partner, Oceans Nick Huzar, Co-Founder and CEO, OfferUp
James Segil, Co-Founder and President, Openpath Jordan Husney, CEO, Parabol
Doug Aley, CEO, Paravision
John Milinovich, CEO, Plato Design Rajat Suri, CEO, Presto
Christopher Gavigan, Founder and CEO, Prima Adam Regelmann, Founder and COO, Quartzy
Nate Maslak, Co-Founder and CEO, and Nate Fox, Co-Founder and CTO, Ribbon Health Zachariah Reitano, Co-Founder and CEO, Ro
Gary Beasley, Co-Founder and CEO, Roofstock Stephen Ehikian, Co-Founder and CEO, Ruist Brian Schechter, CEO, SelfMade
Olga Vidisheva, Founder and CEO, Shoptiques Inc. Dan Doctoroff, CEO, Sidewalk Labs
Jason Tan, CEO, Sift
Matt Cooper, CEO, Skillshare Grant Jordan, CEO, SkySafe
Josh Guttman, Co-Founder and CEO and Florent Peyre, Co-Founder and President, Small Door Michael Carvin, Co-Founder and CEO, SmartAsset
Aaron King, Founder and CEO, Snapdocs, Inc. Neil Capel, CEO, Solve.io
Ben Hindman, Co-Founder and CEO, Splash Evan Beard, Founder and CEO, Standard Bots
Stanlee R. Gatti, Founder, Stanlee R. Gatti Designs Bradford Oberwager, CEO, Sundia Corporation Ross Feinstein, CEO, Sunlight Health
Paul Budnitz, CEO, Superplastic Ron Conway, Founder, SV Angel
Heidi Zak, Co-Founder and Co-CEO, and David Spector, Co-Founder and Co-CEO, ThirdLove Yashar Nejati, CEO, thisopenspace inc.
Joshua Kushner, Founder and Managing Partner, Thrive Capital Chris Wang, CEO, ThunderCore Inc.
Corbett Kull, CEO, Tillable
Meghan Jewitt, CEO, Uniform Teeth
Nicholas Goldner, Co-Founder and CEO, and Christopher Bulow, Co-Founder and COO, Viosera Therapeutics
Ken Chong, CEO, Virtual Kitchen Co Irv Remedios, CEO, Voxer
Oliver Cameron, Co-Founder and CEO, Voyage
Chase Adam, Co-Founder and CEO, and Grace Garey, Co-Founder and COO, Watsi Liz Wessel, Co-Founder and CEO, WayUp
Neil Waller, CEO, Whalar Bismarck Lepe, CEO, Wizeline
Dennis R. Mortensen, Founder and CEO, x.ai, inc. Geoff Ralston, President, Y Combinator
Shan-Lyn Ma, Co-Founder and CEO, Zola
Nathaniel Rakich, fivethirtyeight.com, Republicans Won Both Elections in North Carolina—But It’s Not All Bad News for Democrats
The heavily rural Third Congressional District normally leans Republican by 24 percent, and that was exactly the percentage by which the Republican candidate won. (And, BTW, this result is consistent with what happened in the May 21 special election in Pennsylvania’s Thirty-fifth District—overall partisan Republican lean by 35 percent, and the Republican won back in May by 36 points.)
In the Ninth Congressional District, Trump’s election eve rally seems to have goosed up rural turnout, which exceeded that of prior elections, and led to a Republican victory by two percentage points in a district that leans Republican by 14 and that gave Trump a 12 point victory in 2016.
But, in contrast to the very Trump-friendly rural voters, rich white suburban voters, who used to vote Republican, turned out in even greater numbers for the Democratic candidate, as compared with the last election.
They do seem to be a special breed of cat. I call to mind, once again, the Very Reverend Mark Harris and his effort to steal the election in the Ninth District the last go-around. And the fact that the Republicans in the legislature tricked the Democrats into going to a Nine Eleven memorial service, so the Republicans could win a key vote they would otherwise lose.
Do rural folk in North Carolina think the same as rural folk in Michigan or Iowa? And, as the China trade war hits them in the gut, will their enthusiasm for Dear Leader continue unabated?
We do not know the answers to these questions. But what we do know is that Trump is successfully goosing up the rural yokels at the cost of royally pissing off the rich suburbanites. In the process he is destroying the coalition that has undergirded the Republican Party.
Trump, of course, does not give a tinker’s damn about destroying the Republican Party. He cares about frightening the pee out of the rural voters so that they, in turn, will frighten the pee out of the rest of us.
Let me bring this to a close with
We have learned from North Carolina and the new polls that: (1) divisions between rural and metropolitan voters are deepening; (2) Republicans will have great trouble winning any suburban-dominated district, which will make it very hard to win back the House; (3) the vast majority of incumbent House Republicans represent very pro-Trump seats and have no political interest in breaking with him; (4) life will stay complicated for vulnerable Republican senators up for reelection in swing states because they need turnout from voters turned on by Trump but also suburban crossover voters turned off by Trump; (5) division, distraction and fear will always be Trump’s play; and (6) a large majorityof the American electorate would like to throw Trump out of the White House, but Democrats will have to make it easy for them to do so. There will be no miraculous solution to the Trump problem.…
Especially in the district’s rural areas, Trump’s campaigning the day before the election almost certainly had an impact on boosting GOP base turnout. And Trump gave a preview of 2020 with incendiary fearmongering, accusing McCready of favoring the release of “thousands of dangerous criminal aliens into your communities” who were guilty of “sexual assault, robbery, drug crimes, kidnapping and homicide.” And the Democrats, in Trump’s rendition, became “the socialist Democrat Party.”
Trump knows he can’t win by offering a sunny rendition of his time in office. He has to turn his opponents into ghouls. The polls make clear he will lose if 2020 is a referendum on him. He can win only if he makes it a referendum on the Democrats. Their job is to make that as difficult as possible.