The Democrats rediscover antitrust
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For the past twenty years, unlike almost everything else in Washington, D.C., antitrust has tended to be bipartisan. It has mattered to some extent who is in the White House and which party controls the Senate and the House, but the differences in overall enforcement philosophies have tended to be relatively modest. As former FTC Commissioner Thomas Leary put it few years ago, “There really is no such thing as a ‘Republican’ or a ‘Democratic’ antitrust agenda today. People may have different views on the facts of individual cases for a variety of reasons, but there is a broad mainstream consensus on the basic approach to antitrust issues.”  

A potent symbol of the bipartisan flavor of antitrust can be seen in the fact that Sens. Mike LeeMichael (Mike) Shumway LeeCPAC, all-in for Trump, is not what it used to be OVERNIGHT ENERGY: Key vote for Haaland's confirmation | Update on oil and gas leasing | SEC update on climate-related risk disclosure requirements Haaland on drilling lease moratorium: 'It's not going to be a permanent thing' MORE (R-Utah) and Amy KlobucharAmy KlobucharOpen-ended antitrust is an innovation killer FBI, DHS and Pentagon officials to testify on Capitol riot Five big takeaways on the Capitol security hearings MORE (D-Minn.), the chairman and ranking member of the Senate Antitrust Subcommittee, have written numerous joint letters to the federal antitrust agencies expressing their shared views.


This spirit of bipartisanship looks like it may be about to change.

President Trump was elected, at least in part, on a campaign that appealed to a popular belief that the game is rigged. In his campaign, candidate Trump spoke about how we have too much consolidation of business in the U.S., and he mentioned media concentration in particular. His message on antitrust was a populist message. Indeed, his comments about the media could have come straight out of the late Ben Bagdikian’s book, The New Media Monopoly.

Now, with “A Better Deal,” the Democrats appear ready to reclaim populist antitrust as their own. Introduced publicly by Senate Minority Leader Charles SchumerChuck SchumerThe bizarre back story of the filibuster Hillicon Valley: Biden signs order on chips | Hearing on media misinformation | Facebook's deal with Australia | CIA nominee on SolarWinds House Rules release new text of COVID-19 relief bill MORE (D-N.Y.) and House Minority Leader Nancy Pelosi (D-Calif.), “A Better Deal” includes proposals to significantly beef up federal antitrust enforcement, including merger enforcement. The platform lists a number of industries characterized as already too highly concentrated and not sufficiently competitive as a result of prior mergers: Airlines, cable and telecom, beer, food, and eyeglasses. (This last one might be a bit of a head-scratcher at first because it doesn’t get as much press as the others. But it does seem to fit the bill.)

There are some good ideas in “A Better Deal,” including encouraging more frequent, independent analysis to see if the antitrust agencies made the right calls in merger enforcement decisions and to make sure that merging companies are living up to commitments they made in order to get their deals done. But there are also a few ironies.

For one, mega-mergers and acquisitions in airlines, cable and telecom, beer, food, and yes, even eyeglasses took place during the Obama years. Think of the multi-billion dollar deals by American Airlines, Comcast, Charter, Anheuser-Busch InBev, Safeway, and Luxottica, among others. It is pretty clear that a lot of consolidation in these specific industries took place during the last administration. I think you have to understand “A Better Deal” as Democrats blaming Democrats for not being tough enough trustbusters when they were in control.

Additionally, neither Schumer nor Pelosi has been a particularly big fan of aggressive antitrust enforcement in the past. To take a couple of notable examples: back in 2009, when she was Speaker of the House, Pelosi urged the Department of Justice to relax existing merger standards for newspapers to make it easier for them to combine. Like almost all requests for antitrust exemptions, this one was premised on the claim that the industry was special and therefore should get more lenient treatment. In 2012, before he was elected minority leader, Schumer wrote an op-ed in the Wall Street Journal urging DOJ to drop its collusion case against Apple and the major book publishers (a case DOJ went on to win, by the way). The op-ed was premised on the claim that the publishing industry was special and publishers should not have been prosecuted.

These positions are not what I would call particularly enforcement-oriented. Of course, people’s views can change, but I think most antitrust lawyers and observers were surprised to see Schumer and Pelosi taking the lead on antitrust issues in “A Better Deal.” Theirs are not the first names that would come to mind.

And that brings me to another bit of irony. For reasons that aren’t entirely clear yet, the confirmation of Makan Delrahim to head the Antitrust Division was delayed before the August recess, reportedly by Sen. Elizabeth WarrenElizabeth WarrenSenate mulls changes to .9 trillion coronavirus bill Exclusive: How Obama went to bat for Warren Minimum wage setback revives progressive calls to nix Senate filibuster MORE (D-Mass.).

Delrahim got nearly unanimous support, from Democrats as well as Republicans, when the Senate Judiciary Committee voted to advance his nomination a couple of months ago. Having worked with him both at DOJ and later in private practice, I can affirm what everyone I know who has worked with him has said: he is bipartisan, he is mainstream, he is practical, and he is creative.

He’ll be a good enforcer. Almost certainly, the Antitrust Division will become more engaged internationally. Litigation readiness likely will remain a high priority, and civil and criminal cases will continue to be brought (and hopefully DOJ will continue win those cases). And since Delrahim previously worked on the Senate Judiciary Committee, the odds of meaningful legislation passing are higher than they’ve been for a while. In short, the Antitrust Division under Delrahim is likely to be a very active place. So it is a tad ironic that Delrahim’s nomination is being held up.

Don’t get me wrong. I am happy that Schumer and Pelosi have emerged as voices for strong antitrust enforcement. I was in the room a year ago when Warren delivered her speech on reigniting competition in the American economy. I am all in favor of members of Congress making sure that antitrust enforcement is robust and effective. By the same token, it would be bad indeed if antitrust were to turn into just another partisan football that gets kicked back and forth between two opposing teams. And Delrahim is the wrong person to hold hostage in order to get the message across that antitrust enforcement is important.

Allen Grunes spent more than a decade at the DOJ Antitrust Division and is the co-founder of The Konkurrenz Group in Washington, D.C. He has written and worked on a number of high profile mergers and has coauthored a book with Maurice Stucke on Big Data and Competition Policy.

The views expressed by this author are their own and are not the views of The Hill.