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Mother May I? Antitrust And The Disney/Star Wars Deal

Over at Voices for Reason my colleague Tom Bowden has some good observations on the recent acquisition of Lucasfilm by Disney.

Antitrust law requires notification to the FTC of every contemplated transaction that exceeds a certain dollar amount. Of course, this means that only relatively successful companies fall under FTC scrutiny. And it’s not just a matter of notification—there’s a mandatory waiting period (30 days, subject to extension), while the FTC decides if it’s going to allow the transaction to go forward.

Oh, yes—you can ask the FTC to give its go-ahead without waiting 30 days. But a so-called early termination only happens when both the FTC and the Antitrust Division of the Justice Department have completed their reviews and decided not to take enforcement action.There’s even a website where companies can check every day for grants of permission.

Remember when you had to ask your mother for permission to cross the street? Today, America’s most successful businessmen and shareholders find themselves stuck in a similar position, forced to beg for Uncle Sam’s permission before consummating merger transactions that advance their financial self-interest.

It’s a “Mother may I?” economy, fueled by the basic premise behind antitrust—the idea that the more market success a company achieves, the greater threat it poses to consumers and the economy. After all, when federal law regards every businessman as an incipient criminalwho must be tethered and tamed by government coercion, notifications and waiting periods make perfect sense, right?

Whole thing here.


Manufacturing Cronyism

It’s become fashionable in the last few years to denounce “crony capitalism”—the sort of mutual backscratching that often takes place between government and business. “You give me political support, I’ll give you a bailout.”

It’s wrong to call that “crony capitalism.” There’s nothing capitalist about it. Capitalism means the separation of state and economics. Under capitalism, the government has no special favors or protections to hand out, and so business has no reason to grovel.

But setting that aside, it’s true that cronyism is rampant today, as it is in any mixed economy. The blame, however, rests not with business but with government. Because the fact of the matter is, if you want to survive in business today, you had better have friends in Washington.

Just look at what’s happening to Apple. According to David Boaz:

Yes, Apple—praised to the skies for being an innovator and job creator by Washington politicians when that narrative serves their interests—has become the latest target of the political class.

According to Politico, the daily newspaper of lobbyists and political consultants, industry giant Apple spent a mere $500,000 in Washington in the first quarter of 2012, compared to more than $7 million Google and Microsoft spent on lobbying and related activities from January through March of this year.

Then Politico lowers the boom: “The company’s attitude toward D.C.—described by critics as ‘don’t bother us’—has left it without many inside-the-Beltway friends.”

“Don’t bother us”? I say, amen. But Washington says, no way. The attitude on the Potomac is: “Nice little company ya got there, shame if anything happened to it.”

Now, do you think Apple is going to spend more money on lobbying in the future or less?

We’ve seen this play out before. In a fascinating account, former Microsoft employee Michael Kinsley describes how Microsoft wanted nothing to do with Washington—until Washington decided it wanted something to do with Microsoft (the infamous antitrust suit against the software company).

For many years before the lawsuit, Microsoft had virtually no Washington “presence.” It had a large office in the suburbs, mainly concerned with selling software to the government. Bill Gates resisted the notion that a software company needed to hire a lot of lobbyists and lawyers. He didn’t want anything special from the government, except the freedom to build and sell software. If the government would leave him alone, he would leave the government alone.

At first this was regarded (at least in Washington) as naive. Grown-up companies hire lobbyists. What’s this guy’s problem? Then it was regarded as foolish. This was not a game. There were big issues at stake. Next it came to be seen as arrogant: Who the hell does Microsoft think it is? Does it think it’s too good to do what every other company of its size in the world is doing?

Ultimately, there even was a feeling that, in refusing to play the Washington game, Microsoft was being downright unpatriotic. Look, buddy, there is an American way of doing things, and that American way includes hiring lobbyists, paying lawyers vast sums by the hour, throwing lavish parties for politicians, aides, journalists, and so on. So get with the program.

So that’s what Microsoft did. It moved its government affairs office out of distant Chevy Chase, Md., and into the downtown K Street corridor. It bulked up on lawyers and hired the best-connected lobbyists. Soon Microsoft was coming under criticism for being heavy-handed in its attempts to buy influence. But the sad thing is that it seems to have worked. Microsoft is no longer Public Enemy No. 1.

Not every company is so reluctantly pulled into the pull peddling game—and even companies such as Microsoft, which come kicking and screaming, all too often start using their influence to hobble competitors rather than simply to defend themselves from politicians. (In what has to be one of the most disheartening ironies in business history, Microsoft called for antitrust actions against Google.)

The mixed economy makes cronyism both possible and necessary. Don’t like special favors for businessmen? Then you have two choices: abolish government intervention in the economy—or abolish business.




“You Call That Voluntary?”

So, they went and did it: the Justice Department has announced that it is moving ahead with an antitrust suit against Apple. I hope you’ll forward our latest Forbes column, “3 Things You Need to Know About the Apple Antitrust Case,” and help us turn public opinion against this travesty.

One of the objections that has come up in response to our piece is that these agreements weren’t in fact voluntary. Here’s part of a comment left at Forbes.com by Al:

The agency model is NOT under attack. It is a perfectly legitimate form of business and pricing. The way the five publishers forced this model upon every ebook retailer is what is under attack. Somehow these five publishers all went to Amazon with identical terms in a week or so period of time. And if Amazon did not agree to these terms, the publishers would pull their ebooks, thus crippling Amazon’s Kindle. Sure sound[s] voluntary to me. *sarcasm*

So if voluntary means accept our terms [or] we’ll break your knees (cripple your business), then I guess these agreements were voluntary.

I’m afraid that Al is making a big mistake, by ignoring the fundamental difference between force and trade. As philosopher Harry Binswanger put the point in his profoundly important article “The Dollar and the Gun”:

A business can only make you an offer, thereby expanding the possibilities open to you. The alternative a business presents you with in a free market is: “Increase your well-being by trading with us, or go your own way.” The alternative a government, or any force-user, presents you with is: “Do as we order, or forfeit your liberty, property or life.”

All that the five publishers had the power to do was, in Binswanger’s terms, offer Amazon a tremendous value (their books) or leave Amazon free to go its own way. It’s not as if Amazon started off with a right to distribute those books, and then that right was taken against Amazon’s will. Amazon had no pre-existing right to distribute those publishers’ books except on the terms they set.

Amazon’s choice to accept those terms or not was therefore voluntary. A voluntary choice is not necessarily one in which you have several equally attractive options. It may very well be true that Amazon’s choices were unattractive: accept the publishers’ terms or lose lots of money on the Kindle. If so, that’s a testament to how valuable the books are—a value for which the publishers should be praised, not penalized.

If the publishers’ new terms had broken a contract with Amazon, depriving Amazon of its rightful profits, then Al’s analogy to broken knees would make some sense. But if that had been the case, a simple breach of contract suit would have provided Amazon a remedy. What antitrust law adds to the picture is government coercion. It’s Uncle Sam’s antitrust enforcers who are “breaking knees,” not Apple or the five publishers.