Senate Democrats should grill Judge Gorsuch on antitrust. Here's how.
© Greg Nash

In her recent address before an overflow crowd at the Center for American Progress, Senator Amy KlobucharAmy Jean KlobucharFranken resignation could upend Minnesota races Avalanche of Democratic senators say Franken should resign Trump-free Kennedy Center Honors avoids politics MORE (D-Minn.), the ranking member of the Senate Judiciary Antitrust Subcommittee, announced her plan to introduce a package of bills to improve antitrust enforcement. She closed her remarks by saying that her goal was to “make antitrust cool again.”

Coming the week before the Senate Judiciary Committee’s confirmation hearings to consider whether a conservative antitrust maven, Judge Neil Gorsuch, should become a Supreme Court Justice, Senator Klobuchar’s remarks were right on time.

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Senate Democrats should use the hearings as an opportunity to highlight why antitrust matters and what Judge Gorsuch would do to magnify the law. They also, however, must avoid wonk-speak and academic speculation. Instead, keep it simple: this is about everyday Americans not getting ripped off.

 

Senator Klobuchar gets it. Rather than linger on theories from law professors, she is focused on what people experience: prescription drugs that cost too much; expensive cable TV service that lacks innovation; banking and financial services that make it hard to get a loan; even beer, which improved dramatically when small craft breweries took off and offered better beverages. This is how Americans experience the economy and why competition policy matters to people.

If “to govern is to choose,” as President Kennedy said, then even the enforcement of our antitrust laws must begin with a choice about where to focus the most attention and resources. Why not start with the products and services where the lack of competition led to the worst consumer experiences?

According to the University of Michigan’s American Customer Satisfaction Index, airlines, health insurance, wireless and landline telephone service providers round out the bottom of the list. Not coincidentally, these are industries where government-approved mergers have led to abuses of market power not seen since the lumber barons, and consumers get treated to high prices, low innovation and lousy customer service.

The politics matter. Which brings us to the Gorsuch hearings. Judge Gorsuch is an expert on antitrust law and policy but counts himself among the conservative jurists who, beginning in the 1970s, have sought to narrow the scope of antitrust analysis to economics-driven price inquiries and has ruled in favor of defendants far more often than plaintiffs in antitrust cases.

Americans burden by overpriced phone bills, for example, might be interested to know that Neil Gorsuch, as a private attorney, defended big telephone companies in a lawsuit brought by consumers. Among other things, William Twombly, Lawrence Marcus, and other citizens alleged that Verizon and its fellow incumbent telephone companies were deliberately colluding to evade a 1996 law designed to open local telephone service to competition.

Gorsuch and his colleagues successfully fended off the consumers’ legal action. Local competitors to telephone companies (so-called “Competitive Local Exchange Carriers”) never took root and today, a few huge wireless and wireline phone companies dominate the industry, among the most concentrated and least popular in the U.S. Are we to assume that this was the outcome Neil Gorsuch wanted?

Senators questioning Judge Gorsuch during the confirmation hearing should go back to basics and list complaints they hear from constituents about: prescription drugs, cable TV, banks, and airlines. They need to speak in terms understandable to voters, who in turn should inform how Senators vote on the confirmation.

Here is a suggested question:

“Judge Gorsuch, my constituents complain about the prices they have to pay for prescription drugs. American taxpayers also complain about those prices because under Medicare Part D, taxpayers cover prescription drugs used by seniors. Right now, in a New York federal court, several pharmaceutical companies have been sued for allegedly conspiring to jack up the price of propranolol, a generic blood pressure medication. Based on your history in private practice and on the bench, I am concerned that if this case were to reach the Supreme Court, you would be inclined to rule in favor of the drug companies. Please persuade me otherwise.”

By focusing on an issue that everyone understands — drug prices are too damned high — and an actual case now in federal courts involving alleged collusion by drug companies, any senator asking this question makes it clear what is at stake in antitrust law. It’s up to Judge Gorsuch to explain why the senator’s concerns on behalf of patients and taxpayers are baseless.

The framers intended these hearings to be a political, not just legal, exchange. Article III of the Constitution established the lifetime appointment of Supreme Court justices, but Article II granted a gatekeeper role for the political branch through the “advice and consent” of the Senate.

By focusing on the pocketbook impact in Americans’ daily lives, senators questioning Gorsuch can help “make antitrust cool again” and perhaps, in the process, raise the importance of antitrust enforcement. As Senator Klobuchar put it, if the Trump administration won’t do it, we will.

David Goodfriend is a Washington, D.C.-based lawyer and adjunct professor at the Georgetown University Law Center and the George Washington University School of Law. He served as Deputy Staff Secretary to President Bill ClintonWilliam (Bill) Jefferson ClintonMueller’s probe doesn't end with a bang, but with a whimper Mark Mellman: History’s judgment Congress should massively ramp up funding for the NIH MORE and as a U.S. Federal Communications Commission attorney.


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