Wednesday’s lawsuit was filed exclusively by Republican attorneys general, led by Ken Paxton of Texas. Similarly, the DOJ’s complaint in October was initially joined exclusively by Republican attorneys general — though the larger bipartisan group of attorneys general who bore down on Google this week have signaled they now hope to combine forces. Skepticism on the part of bluer-state prosecutors was warranted: Mr. Paxton, currently under indictment on charges of felony securities fraud, also tried this month to overturn the results of the recent U.S. election with a ludicrous court case to aid a lame-duck leader for whom he has made a habit of carrying water. President Trump, for his part, has treated law enforcement in general, and antitrust in particular, as a bludgeon to wield against those who displease him.
These considerations make it difficult to pick out from these overlapping complaints what is a matter of bona fide anticompetitive concern and what is a matter of state-sponsored bullying. The Texas suit raises questions about vertical integration in the digital advertising stack that merit probing. For instance, does Google’s triple role as buyer, seller and middleman point to a need for regulations in these markets that mirror those in the financial sector? More startlingly, the collusion the filing alleges between Google and Facebook would be per se illegal if proven. But there are so many redactions in the filing, and so many questions about its primary mover and his partisan tilt, that the charge is nigh impossible to evaluate on the merits.
This week’s second lawsuit also introduces conundrums well worth working through, including the matter of Google preferencing its own products in areas such as restaurant reviews and flight and hotel comparisons. Yet, too often, these subjects are obscured by less nuanced “break-them-up” arguments with more crowd-pleasing potential. General search is winner-takes-all in its nature. Officials shouldn’t waste their time trying to prove that Google gained its position by, say, signing illegal contracts rather than by being the best in a market where the best ends up with everything. They should instead probe whether Google uses its dominant position in a manner that damages consumers via limiting competition — and to what extent the company’s gatekeeper status means it should be regulated in a manner more akin to a utility.
The task for President-elect Joe Biden is now to dispel the partisan cloud that his predecessor has cast over antitrust so that legitimate and difficult policy issues can be considered with more clarity. The goal must be to separate politics from policy on both sides of the aisle, and then grapple with companies’ outsize power without punishing them merely for being powerful.