September 12, 2012
Joshua Wright, the conservative George Mason University law professor and economist appointed by President Obama to a Republican seat on the Federal Trade Commission, is known to both supporters and ideological opponents as one of the top antitrust scholars of his generation. He's also known for his work on the role of antitrust enforcement in fast-growing technology fields, including Google's search-engine business.
This is of more than passing interest because of the FTC’s long-simmering investigation into whether certain of Google's business practices constitute antitrust violations. In papers titled “If Search Neutrality Is the Answer, What’s the Question?” and “Google and the Limits of Antitrust,” Wright suggests that any antitrust case against Google should face very high hurdles, including demonstrable harm to consumers and not merely to Google’s business rivals.
Geoffrey Manne, executive director of the International Center for Law and Economics and Wright’s coauthor on these and other papers, expects Wright to recuse himself from any antitrust enforcement case involving Google. “When he is commissioner, a big part of his obligation will be to protect the integrity of the agency,” Manne said. “I don’t see him voting on Google cases. Too many people think his view is biased.”
Wright has received grants from the economics center, which gets some of its funding from Google. But, said Manne, “Google has no say over the work that we do.”
In a pure party-line vote, Wright's say might not mean much in an FTC case against Google, according to Bob Lande, an antitrust expert and law professor at the University of Baltimore. Democratic appointees hold a 3-2 advantage and can advance any case they agree on. But if Mitt Romney is president and Republicans have three votes on the FTC, Wright’s abstention would likely stall the case. Although Lande, who identifies himself as a "moderate Democrat," disagrees with Wright’s policy conclusions, he said that his work is “first rate,” and he called Wright “the leading conservative star of his generation.”
Benin Szoka, president of the libertarian think tank TechFreedom, said that Republicans are getting “the most thoughtful antitrust skeptic that’s ever been at the FTC.” This skepticism, according to Szoka and Manne, involves taking seriously the potential economic harm that could be caused by an antitrust investigation, particularly on dynamic and growing industries. “It’s great to have an economist on the FTC,” Manne said.
Assuming he is confirmed by the Senate, Wright will replace retiring Commissioner Thomas Rosch. While Wright is philosophically at odds with some of the leading champions of antitrust enforcement in the Senate, including Sens. Herb Kohl, D-Wis., and Al Franken, D-Minn., the timing of the nomination suggests that a confirmation battle is unlikely. Lande and Szoka both noted that Wright’s appointment was announced the same day that the Senate Judiciary Committee scheduled a meeting to advance the nomination of William Baer to lead the Antitrust Division of the Justice Department; his nomination has been stalled since his confirmation hearing in July.
The Senate Commerce, Science, and Transportation Committee hasn't yet set a date for Wright's confirmation hearing. Chairman Jay Rockefeller, D-W.Va., said, "The Federal Trade Commission has a long, proud history of working in a bipartisan manner that is in the best interest of consumers. I fully expect Mr. Wright to continue that tradition of strong consumer advocacy with his nomination to be a commissioner to the FTC.”
September 12, 2012