Fair Play: Could Antitrust Play in Congress?


Antitrust deciphered.

Amy Klobuchar

A side comment from the top Democrat on the Senate Judiciary Committee’s antitrust subcommittee at an unusually wonky hearing last week gave a clue as to what lawmakers are talking about when they talk about competition.

Sen. Amy Klobuchar (D-Minn.) said in passing that she’s working on a bill with her Republican counterpart, Sen. Mike Lee of Utah, offering no further details. Klobuchar already has introduced her own antitrust proposals, and the word from Lee’s office is that the talks on a bipartisan bill are “stalled.”

But for advocates who want changes to the law, even if it’s just more funding for enforcement, the news offered some hope. With Republicans in charge of Congress and the White House, nothing will pass that doesn’t have at least a tacit GOP stamp of approval. Aside from minor whistleblower legislation from Sen. Chuck Grassley (R-Iowa) that passed the Senate on a voice vote last week, the only pending antitrust bills come from Democrats. That makes sense because Democrats have adopted expanded antitrust laws as a core political issue.

Klobuchar doesn’t go as far as some Democrats in pushing for major rewrites of current law would upend the current legal paradigm. Progressives like Sen. Elizabeth Warren (D-Mass.) want to make it easier to crack down on dominant companies like Amazon.com or Google Inc.

Klobuchar has drafted a pair of measures that would retain the basic shape of the law but expand its uses. One would amend key pieces of the bedrock 1914 Clayton Act to require merging companies to prove their mega-deals are good for competition. The other would apply a sliding scale to the fees merging companies pay when filing for government review, charging larger transactions more than smaller ones.

In the House, some Democrats recently formed the Antitrust Caucus that earlier this month introduced legislation that would direct antitrust agencies to study the impact of mergers on factors like jobs and wages.

At the Senate antitrust hearing, which explored whether enforcers are using the right legal standard in evaluating mergers, Lee showed he’s willing to entertain questions about different approaches to enforcement. He stood by the position that the current “consumer welfare standard” – the golden rule for antitrust analysis – is the correct approach. But he did ask the panel of witnesses – composed of former FTC officials, academics, and economists – about how competition has been affected by the increased concentration in major industries like technology or media.

It’s hard to tell whether the bipartisan talks between Lee and Klobuchar will produce anything tangible. But the talks are a sign that the question of whether the decades-old laws need to change is on lawmakers’ minds. With the dialogue beginning, 2018 could bring the first new antitrust law in ages or it could bring corporate dominance to the forefront of mid-term elections, or both.

What’s Happening

The second hearing to check in how things are progressing with the Justice Department’s challenge to AT&T Inc. and Time Warner Inc.’s merger will be on Thursday afternoon.

Quote of the Week

“As a general matter, the Antitrust Division does not oppose amicus briefs in the district courts. We note, however, that Dr. Page’s submission does not appear to be meaningfully relevant to the issues in this case,” the Justice Department weighed in on a request to file an amicus brief by former Trump aide Carter Page in the AT&T-Time Warner case.

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