Antitrust Warrior Picks Battle With ‘Alt-Left’ Activists

Stay current on the latest developments from agencies including the CFPB, Federal Reserve, FDIC, and OCC to advise clients on real-life regulatory situations.

By Alexei Alexis

Competition advocate Diana Moss has taken on a number of big corporate mergers, but as president of the American Antitrust Institute, she now sees a new threat emerging — a more populist version of the cause she’s been championing for years.

Other consumer advocates are weighing in, saying antitrust law needs to fundamentally change to give regulators more leeway to stop certain deals, such as Amazon.com Inc.’s now-consummated tie-up with Whole Foods Market Inc. “It goes without saying that competition should absolutely be at the top of the national radar screen, and it is,” Moss told Bloomberg BNA in an interview. “I think everyone understands how important it is. But we do risk really sucking resources away from progressive enforcement by talking about overhauling things.”

Moss, an antitrust veteran, takes a more measured approach. She says the “alt-left” competition movement, as she calls it, is distracting Congress and the White House from a serious antitrust policy debate. “This is a not a time where wholesale reform of the antitrust laws is in order,” Moss said. “It will take up significant energy and time, and I don’t think it will go anywhere.”

Moss is among a broadening spectrum of voices concerned about the future of antitrust enforcement in the U.S. David Balto, another antitrust veteran with two past stints at the Federal Trade Commission, wrote in a recent piece for Bloomberg BNA that antitrust is hip all of a sudden. “Everywhere you look today someone is talking about industry concentration and debating whether we need some grand new antitrust policy (we don’t) or vigilant enforcers (we do),” he said.

AAI was born when antitrust wasn’t cool. The nonprofit research and advocacy group was established in 1998 because “there was no public interest organization principally dedicated to supporting a more aggressive antitrust agenda,” according to its web site. AAI is considered a leader in progressive antitrust advocacy. It’s different from other entities who recently have entered the antitrust fray in that its leaders have “staked out a position somewhere in the middle” between a complete antitrust overhaul and lax enforcement, Moss said.

‘Left-Leaning, Populist Voice’

“We now have this very left-leaning, populist voice calling for significant reforms in the law,” Moss said, without naming any specific groups or individuals. At the same time, she said there are “regressives” on the right who still adhere to the view that antitrust enforcement should take a light hand.

Some people on the left see a rare opportunity now to dramatically reshape antitrust policy because of growing public skepticism about mega-mergers. Antitrust enforcement was highlighted as a corporate issue during the 2016 presidential election, and the topic continues to gain steam, particularly in the Democratic party.

“I think these calls to revise antitrust policy to look at all of the ways in which dominant companies like Amazon exercise power are entirely reasonable,” Marshall Steinbaum, a fellow and research director at the Roosevelt Institute, a liberal Washington think tank, told Bloomberg BNA.

Steinbaum said antitrust enforcers currently have adopted a narrow, conservative interpretation of the law written decades ago. It has sparked momentum for change.

‘Not a Partisan Issue’

AAI says the U.S. now faces a major competition crisis resulting from lax antitrust enforcement over the last several decades. The group cites research showing that markets have grown more concentrated under both Republican and Democratic presidents.

While there was a brief period of aggressive enforcement near the end of the Obama administration, the outlook going forward is unclear, according to Moss. “I think the ideal outcome would be for the new enforcers to pick up where the Obama enforcers left off,” she said. “This is important, whether you’re a Republican or Democrat. It’s not a partisan issue.”

The administration is getting off to a slow start when it comes to shoring up the nation’s antitrust enforcement agencies. Three out of five seats at the FTC are still vacant, and the agency is led by an acting chairman. Makan Delrahim, the nominee picked by President Donald Trump to take over the Justice Department’s antitrust division, is still waiting for Senate confirmation.

Moss said AAI has been encouraged by certain enforcement steps in recent years, such as the Justice Department’s decision in 2016 to block Halliburton Co.’s bid to acquire Baker Hughes Inc.

Democrats’ Plan

In July, House Minority Leader Nancy Pelosi (D-Calif.) and Senate Minority leader Chuck Schumer (D-N.Y.) unveiled a populist-style economic plan that focused on strengthening antitrust policies, among other areas. The “Better Deal” plan calls for a crackdown on “corporate monopolies and the abuse of economic and political power,” adopting language mostly used by the more liberal wing of the party.

The plan would establish new merger standards that require regulators to review how the deal could impact wages and jobs, among other criteria. In addition, Democrats also proposed the formation of a “competition consumer advocate” that would research market activity, receive consumer complaints, and recommend competition investigations to the FTC and DOJ.

Such efforts, Moss said, are diverting energy and resources away from the business of getting more vigorous enforcement.

To contact the reporter on this story: Alexei Alexis in Washington at aalexis@bna.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bna.com

Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.

Request Antitrust on Bloomberg Law