The credit card fee victory is a defeat

Small cartels beat large industries every time.

Cory Doctorow
9 min readMar 28, 2024

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An old-time, hand-tinted picture-postcard of a small-town main street. The sky has been replaced by a giant Visa logo. In the foreground is a giant ‘capitalist’ figured in top-hat and suit, carrying a bulging sack with a dollar-sign on it. He is bellowing over his shoulder.

I’m on tour with my new, nationally bestselling novel The Bezzle! Catch me next weekend (Mar 30–31) at Wondercon in Anaheim, then Boston (Apr 11) with Randall “XKCD” Munroe, Providence (Apr 12) and beyond!

The headline was pure David and Goliath: America’s small businesses had finally triumphed in their 20-year litigation campaign against Visa and Mastercard over price-gouging on fees, and V/MC were going to cough up $30B as reparations:

https://edition.cnn.com/2024/03/26/economy/visa-mastercard-swipe-fee-settlement/index.html

But if you actually delve into that settlement, the victory gets very hollow indeed. Here’s the figure that didn’t make the headline: as a part of this settlement, the sky-high fees merchants pay to process your credit-card transaction are going up by 25%:

https://www.creditslips.org/creditslips/2024/03/the-proposed-credit-card-interchange-settlement.html

The payments system is a hellish complex, rotten cartel, dominated by a handful of firms who have raised their already-high fees by 40% since the start of covid:

https://prospect.org/power/2023-02-07-small-business-credit-card-fees/

These companies who take 2–5% out of virtually every dollar exchange in the American company are wildly profitable, but their aggregate profits are still much lower than the profits of all the merchants they prey upon. More: the combined market capitalization of every company that accepts credit-cards is orders of magnitude larger than the payment processing companies. If we’re just talking about sheer economic muscle, the “Goliath” here is “all the companies” and the “David” is “the three companies that process payments for them.”

So, how is it that these puny middlemen are able to run circles around this massive retail sector? To learn the answer, you need to consider the fine technical details of the lawsuit and the settlement. That’s something few of us are capable of doing on our own, because — as is ever the case with finance — the whole system is wreathed in an enormous amount of performative complexity. It’s what finance bros call “MEGO,” for “My Eyes Glaze Over.” Finance loves things that are made complicated so that they’ll be hard to understand — because so many of us will assume that they are hard to understand because they are complicated and just “leave it to the experts.”

Thankfully, not all of the experts are on the side of finance. When I want a cheat-sheet for the lies buried in Uber’s balance sheet, I look to Hubert Horan:

https://horanaviation.com/publications-uber

And when I want to understand credit markets, I go to Adam Levitin and his co-authors at the indispensable Credit Slips blog — and the Credit Card Interchange Settlement is no exception:

https://www.creditslips.org/creditslips/2024/03/the-proposed-credit-card-interchange-settlement.html

Formally, the fight over credit-card fees is over “interchange fees” — the fees charged to a merchant’s bank by Visa and Mastercard. But of course, these fees are passed on to the merchants. If you’ve ever shopped for a credit-card, you’ll know that some cards offer massive rebates to consumers (especially wealthy consumers with great credit scores). These gifts don’t come out of V/MC’s bottom-line: every time you use one of those Platinum/Emerald/Unobtanium cards, V/MC levy an even higher interchange fee. So ultimately, when a wealthy customer with a “good” credit card shops at a merchant, the merchant ends up paying more to process their payment.

But merchants aren’t allowed to charge that back to their customers — and that’s the crux of the lawsuit. It’s why American merchants pay the highest interchange fees in the developed world.

Enter the $30b settlement. Under its terms, average interchange fees will go down by 7 basis-points (0.07%) over the next five years, while all fees will go down by 0.04% over three years — a reduction of about $3b/year. Additionally: merchants will now be able to levy small, extremely limited surcharges based on either the type of card or the card brand (e.g., “We charge a fee for Visa” or “We charge a fee for gold cards”). If merchants are able to levy these fees and figure out how to max them out, they stand to make another 3b/year.

In other words, the $30b settlement comes from $15b in guaranteed savings and $15b in possible savings, for just five years — while V/MC will continue to charge more than $100b/year in interchange fees.

This litigation began in 2005, with merchants outraged over the sky-high average interchange fee of 1.75%. Today, after the settlement, those fees have climbed by 25%, to 2.19% — and they’ll start climbing again after just five years. A 20-year fight over high fees resulted in a victory in which the fees are even higher.

How did this happen? Levitin gives us some tantalyzing hints. Over the two decades of litigation, the credit card cartel were able to peel off different groups of merchants and settle with them separately. Some of those settlements were vacated by courts, and other ones are still pending, but fundamentally, the merchants were not unified in the way the credit-card companies are.

This shouldn’t surprise anyone. Hundreds of thousands — millions? — of merchants are unable to coordinate strategies in the way that just two credit-card companies can. Indeed, when you have hundreds of thousands of companies, that represents many, many different kinds of businesses, each of which has different kinds of customers and different labor, inventory, cash-flow and profitability specifics.

But as an industry grows more concentrated, all the firms within that industry converge on a single, homogeneous style of operations. Walmart operates very differently from the mom-and-pop shops it forced out with predatory pricing and sweetheart deals with wholesalers — but Costco, Walmart and Sam’s Club are all remarkably similar to one another. As a shopper, that means that if have needs that aren’t well-served by a big box store, you’re out of luck — and it means that a credit-card settlement that works for Walmart will probably work equally well for Costco and Sam’s Club.

Think of the mobile phone duopoly of Apple/Google. These two “competitors” have nearly identical ways of dealing with their suppliers — both charging 30% fees for processing payments (and yes, that’s a racket that makes Visa/Mastercard look like pikers). These two “competitors” are also one another’s most important business-partners: the single largest transaction either company makes every year is with the other — the $26B that Google pays Apple every year to be the Ios and Safari default search engine, through which Apple exposes every one of its customers to Google’s incredibly invasive, continuous surveillance.

Speaking of surveillance: consider the surveillance advertising duopoly of Google/Facebook. Not only do these companies extract the nearly identical (sky-high) fees from advertisers and dribble out the nearly identical (miserly) payouts to publishers — they also illegally collude to rig the advertising market, dividing it between themselves:

https://en.wikipedia.org/wiki/Jedi_Blue

The economists’ term for this is the “collective action problem.” It’s a problem we want corporations to have. The problem with monopolies and cartels isn’t merely that they’re “too big to fail” and “too big to jail” — it’s that a handful of companies can form a cartel to capture their regulators:

https://pluralistic.net/2022/06/05/regulatory-capture/

The surveillance industry is unified; the surveilled are not. The rewards from surveillance are concentrated. The costs of surveillance are diffused. This is as good a working definition of corruption as you could ask for: conduct that produces concentrated gains and diffuse losses.

Our generations-long failure to enforce antitrust law created monopolies that rippled out through whole supply chains. As David Dayen described in his brilliant 2021 book Monopolized, it’s the story of US health industry:

https://pluralistic.net/2021/01/29/fractal-bullshit/#dayenu

First, pharma companies merged to monopoly and started to gouge hospitals on drug prices. So hospitals formed regional monopolies that could resist these pricing demands — and then turned around and started gouging insurance companies. So insurance companies merged, too. Every corner of health-care is now a monopoly or a cartel — from pharmacy benefit managers to hospital beds:

https://pluralistic.net/2022/01/05/hillrom/#baxter-international

The only parts of the industry that aren’t concentrated are the parts that can’t concentrate: patients and health-care workers. The monopolized health care sector reaps the concentrated gains, and the patients and workers pay the diffused costs. Those costs are diffused, but they’re still substantial — a literal matter of life or death:

https://kffhealthnews.org/news/article/investors-private-equity-nonprofit-nursing-homes-quality-of-care/

Monopolization lets businesses solve their collective action problem, so they can run circles around less concentrated, less organized sectors. But concentration also lets companies solve the collective action problem of lobbying governments and capturing their regulators. A concentrated industry can maintain message discipline in front of regulators and legislators. A diffuse sector will always have credible defectors who’ll say, “No, we can absolutely function with tighter controls — my competition is bullshitting you and I have receipts to prove it.”

The surveillance industry’s massive concentration is why America can’t seem to pass a federal consumer privacy law. The last consumer privacy law Congress passed was 1988’s Video Privacy Protection Act, a law that bans video-store clerks from telling anyone which VHS cassettes you’re renting. But federal law is effectively silent on every other kind of invasion — your ISP, your TV, your car, your phone, your medical implant, your dishwasher and your smart speaker can all harvest your data, charge you for the privilege and sell it to anyone, for any purpose.

That silence didn’t come cheap: whenever Congress moots a privacy law, the concentrated surveillance industry is all on the same page for the ensuing lobbying blitz, which it can afford thanks to the massive profits that an industry reaps when it eliminates “wasteful competition.”

This is a point that leftists sometimes miss about competition law. The point of competition isn’t merely to discipline companies into finding more efficient ways to run their businesses so that their prices go down. Sure, that’s sometimes a good thing for the public.

But there’s plenty of commercial conduct that we don’t want to improve — rather, we want to extinguish that conduct. We don’t want more efficient commercial surveillance — we want no commercial surveillance.

Without competition, an industry can outmaneuver the government. Think of IBM: the DOJ sued IBM for antitrust violations from 1970 to 1982. For 12 consecutive years, IBM spent more on lawyers to fight the DOJ’s Antitrust Division than the DOJ spent on all the lawyers it employed to fight every antitrust violation in the country. IBM literally outspent the US government, year after year, for 12 years! That let them delay the DOJ’s breakup long enough for Ronald Reagan to be elected, and then Reagan dropped the suit.

This doesn’t just effect customers for a monopoly’s products — it also (and especially) effects the workers for that monopoly. When employers don’t have to compete for labor, they can pay workers less and save money they might otherwise have to pay for benefits and workplace safety. Those additional profits can be plowed into lobbying against pro-union laws, and to pay the eye-watering sums charged by scumbag union-busting law firms.

Look at the companies who’ve gone to the Supreme Court to get the National Labor Review Board abolished: these are giant corporations from heavily concentrated sectors with little competition to erode their profits. And while Tesla, Trader Joe’s and Amazon all have very different businesses, they’re all similar enough that none of them sees an advantage to courting workers by offering a unionized shop:

https://newrepublic.com/article/179165/musk-supreme-court-nlrb-labor

It’s not just leftists who fail to grasp the relationship between competition and the ability of regulators to do their job. Libertarians miss this, too. Even if you’re a fully Fountainhead-poisoned freedom-to-contract hobgoblin, you still want a government that can enforce those contracts and defend the property rights they invoke. For a government to force a corporation to abide by its contractual obligations, that government has to be more powerful than the corporation it is charged with policing. Which means that however large you’re willing to let a monopoly or cartel grow, you’re going to have to tolerate a government that’s even larger:

https://pluralistic.net/2023/02/05/small-government/

The “$30b win” for America’s merchants is, in fact, a loss. 20 years of litigation over high fees, and the fees are now much higher. But that loss is surely unevenly distributed. Walmart and Amazon and other retail giants are going to be able to bargain for all kinds of off-the-books rebates, promotions, and other sweetheart deals, meaning that they’ll have even more unfair advantages over smaller, more disorganized retailers. That means more of those mom-and-pops will vanish, leaving shoppers with less choice and higher prices — and workers with less choice and lower wages.

The lesson of 40 years of pro-monopoly policy couldn’t be clearer: you can either have an economy that is regulated by lawmakers who are at least nominally transparent and democratically accountable, or you can have an economy regulated by totally unaccountable and opaque monopolists. Fail to do the former, and you will always end up with the latter.

If you’d like an essay-formatted version of this post to read or share, here’s a link to it on pluralistic.net, my surveillance-free, ad-free, tracker-free blog:

https://pluralistic.net/2024/03/28/concentrated-benefits/#diffuse-harms

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