The FTC is supposed to be a non-partisan federal regulatory agency, un-swayed by partisan politics and the influence of outside companies. As the Google documents show, it’s not.
It is hardly a secret the Barack Obama White House had a cozy relationship with Google. Between 2009 to 2015, representatives and lobbyists for the company averaged one White House meeting a week. In what can only be described as a Google-Obama revolving door, nearly 250 individuals moved either from the government to Google or Google to the government during the Obama presidency.
While politicization of executive branch agencies has become the norm for both major parties, the Obama administration’s tentacles of politicization appear to have reached even further, deep into the regulatory arena.
Leaked documents recently obtained by Politico demonstrate the Obama White House’s tight relationship with the search engine giant may have even influenced the behavior of the Federal Trade Commission, one of the highest so-called independent regulatory enforcement and consumer protection agencies in the land. The memos reveal, for example, that despite having overwhelming data that the company operated as an unchecked monopoly, the FTC declined to pursue enforcement against Google in 2013.
As a former senior member of the House Judiciary Committee, I find these revelations deeply distressing and believe they should drum up calls in Congress to reform and depoliticize these vital federal institutions. This is essential to ensure — to the greatest extent possible — that truth, justice, and law and order prevail in our country.
Federal investigators at the FTC were alerted early in Obama’s first term that Google’s surge in the then-nascent mobile phone industry appeared to be illegal and something needed to be done. Eighteen FTC lawyers and paralegals issued memos explaining that, because of exclusionary and anti-free market deal-making, Google was the default search engine on fully 86 percent of American smartphones and controlled an astounding 97 percent of global mobile searches.
While U.S. antitrust law does not explicitly define precisely what market share moves a company from a fair competitor to a monopoly, several court cases have determined that a 70 percent market share creates a monopolization threshold. This means Google’s 86 percent share more than qualified it for at least investigation, especially when the FTC’s own report showed the commission knew that a Google executive boasted to the giant company’s CEO that the company could soon “own the U.S. market.” Still, Obama’s politically appointed FTC bosses shut the investigation down even though their attorneys suggested charges should be pursued.
Unsurprisingly, the basis for their dismissive decision appears to have been meritless or at the very least contradictory grounds. One telling example was the FTC’s use of Comcast data to allege Google only controlled between 10 and 20 percent of the web traffic for rival shopping and review sites. It did this despite knowing that Google’s CEO stated in sworn testimony to the FTC that the Comcast numbers were wrong. Google’s chief economist and even the FTC’s own attorneys stated the same thing, but Obama’s appointees at the FTC used the data anyway.
The FTC is supposed to be a non-partisan federal regulatory agency, un-swayed by partisan politics and the influence of outside companies. Their mission is to stop unfair or deceptive tactics in the marketplace and to encourage and promote competition in the free market. By not going after Google back in 2013, the Obama FTC decided to let Google squash competition. This type of behavior cannot, or certainly should not, be tolerated from an institution of this size at any time, now or in the future.
To that end, a handful of lawmakers have set out to substantively reform the FTC, among them Sen. Josh Hawley, R-Mo.. He has pointed out the “revolving door conflict” between the FTC and Big Tech and has suggested several reforms, including relocating the FTC to the Department of Justice so it is subject to clearer and more direct oversight. Hawley also has proposed replacing the multi-member commission with a single director appointed by Congress every five years, to maximize public accountability and transparency.
Considering the increasing power of Google and the few other search engines throughout virtually all sectors of government and private businesses, while Congress can debate the best approach to solving this issue, Hawley is right. Something must be done — and soon.
Those who believe that depoliticizing the FTC is a lost cause might be forgetting how other federal law enforcement and regulatory agencies operate within guidelines to reduce political bias. Consider how the Justice Department handled Google during the Obama years. As civil rights attorney and frequent Fox News guest Harmeet Dhillon wrote recently in the New York Post:
Despite the administration’s close ties to Silicon Valley, the Obama Justice Department in 2015 filed a Supreme Court brief against Google in Google v. Oracle, arguing that the firm engaged in significant intellectual property theft in creating Android … lawyers now consider the action to be the copyright case of the century because it could help stop what appears to be one of Big Tech’s primary means of monopolizing the digital marketplace — intellectual-property theft.
If the Justice Department can operate with at least this degree of independence, so too can the FTC. With the Big Tech accountability movement gaining steam, we need the FTC to resume its role as a non-partisan protector of the free market. If it continues down its current path of blissful ignorance and partisanship, who knows where we will be after another decade of these self-serving and nonchalant practices.
Bob Barr represented Georgia’s Seventh District in the U.S. House of Representatives from 1995 to 2003. He served as the United States Attorney in Atlanta from 1986 to 1990 and was an official with the CIA in the 1970s. He now practices law in Atlanta, Georgia, and serves as head of Liberty Guard.