Warren Blocks Antitrust Pick as Merger Attention Grows

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 Liz Crampton

Sen. Elizabeth Warren’s opposition to the nominee to lead the Justice Department’s antitrust division comes as Democrats are getting more vocal about antitrust policy and pushing for active enforcement.

Warren (D-Mass.) has put a “hold” on the confirmation of Makan Delrahim, President Donald Trump’s selection as assistant attorney general for the antitrust division, according to Bloomberg News. That means the confirmation can’t go through the Senate on a voice vote, a normal procedure for a nominee at that level. Warren wrote in an April Facebook post Delrahim’s nomination is a sign the Trump administration will “put the interests of giant corporations ahead of the American people.”

AT&T Inc. and Time Warner Inc.'s proposed tie-up has been thrown into the center of Delrahim’s confirmation. Over concerns that Trump would interfere in investigations about the merger, senators have repeatedly pressed Delrahim to make public promises that he’ll operate independently from the White House if he moves to the Justice Department.

Until recently, antitrust enforcement has largely stayed out of the spotlight. It’s regulated under the purview of the Federal Trade Commission and the Justice Department, and antitrust officials have publicly stressed the importance of maintaining independence from the White House. Warren’s block of Delrahim’s appointment complicates a confirmation process that was initially expected to progress smoothly and has enjoyed bipartisan support.

“In the past antitrust has been left to the antitrust specialists, and now it’s become broader,” Seth Bloom, an antitrust attorney at Bloom Strategic Counsel LLC in Washington, told Bloomberg BNA.

Sen. Orrin Hatch (R-Utah) said in a statement provided to Bloomberg BNA that “the ongoing attempt to block his confirmation is purely political and does nothing to help American businesses and consumers.” Delrahim, an antitrust lawyer who also has expertise in intellectual property issues, worked for Hatch when he served as chairman of the Senate Judiciary Committee.

Democrats’ New Plan

The effort to get Delrahim confirmed is occurring against the backdrop of a new Democratic campaign about progressive antitrust enforcement.

Last month, House Minority Leader Nancy Pelosi (D-Calif.) and Senate Minority Leader Chuck Schumer (D-N.Y.) announced a new economic agenda that takes aim at big corporations.

“It’s become part of political platforms,” said Bloom, former general counsel for the Senate Judiciary Committee’s antitrust subcommittee.

The Democrats are calling 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.

Delrahim, a former lobbyist for Anthem Inc., has been waiting for Senate confirmation since the Judiciary Committee approved his nomination 19-1 in early June. Sen. Sheldon Whitehouse (D-R.I.) was the only lawmaker to vote against the nomination.

Delrahim was excluded from a package of 69 nominees that cleared the Senate Aug. 4 before lawmakers recessed until Sept 5.

AT&T-Time Warner Tension

Delrahim, widely considered an uncontroversial pick and qualified for the job, has experienced an unusual confirmation delay for what is usually a low-profile position. His hearing was postponed because of paperwork. Several times, he has reassured Democratic senators that he hasn’t discussed AT&T and Time Warner with anyone at the White House.

Much of the attention has focused Trump’s comments on the campaign trail that he’ll block the deal. Warren has been outspoken against mega-mergers generally, pointing to corporate consolidation as the cause for stagnant wages and economic inequality.

Yet these concerns from lawmakers about impartiality appear to be directed toward the White House rather than Delrahim. Delrahim has been praised by both Democrats and Republicans. During his confirmation hearing, Klobuchar, ranking member of the Senate Judiciary’s Committee’s antitrust subcommittee, spoke highly of the nominee, and the two engaged in a back-and-forth over niche antitrust issues.

Sen. Dianne Feinstein (D-Calif.), the committee’s ranking member, said before voting in favor of Delrahim’s nomination that she believed he “will fully and fairly enforce our antitrust laws.”

To contact the reporter on this story: Liz Crampton in Washington at lcrampton@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