By Liz Crampton, Bloomberg BNA
Congressional Democrats July 24 unveiled an ambitious antitrust agenda that takes aim at big corporations and signals what tack the party would take should Democrats capture either the House or the Senate in the midterm elections.
Companies proposing blockbuster mergers would need to establish the benefits of the deal in order to incentivize companies to be “better corporate citizens” under the plan rolled out by House Minority Leader Nancy Pelosi (D-Calif.) and Senate Democratic leader Chuck Schumer (D-N.Y.) at a rally in Berryville, Va. Large mergers that would harm consumers, workers, and competition via higher prices and lower wages should be blocked, says the antitrust plan part of Democrats’ new economic agenda.
James Cooper, a law professor at George Mason University, told Bloomberg BNA that Democrats would likely find it difficult to implement their plan without a large scale revamping of the antitrust laws. Congress may need to amend the Sherman and Clayton Acts to include consideration of how mergers would affect wages and jobs, factors beyond the traditional analysis that focuses on price and quality outputs.
Nevertheless, the proposals show the extent to which “the mainstream of the party has embraced antitrust in the leadership in a way it hasn’t in decades,” said Seth Bloom, an antitrust attorney at Bloom Strategic Counsel LLC in Washington. “It’s a long term game. Now the Democrats have put down a marker that this is what they want to see,” said Bloom, former general counsel for the Senate Judiciary antitrust subcommittee.
The Democratic lawmakers called 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 until now.
Their plan says an increase in concentration of power among a few companies has hurt wages, undermined job growth and threatens to eliminate small businesses, suppliers and new competitors and has also caused prices to go up and quality to decline.
The plan also calls for establishing new merger standards that require regulators to review how the deal may impact wages and jobs, among other criteria.
Antitrust regulators currently have limited ability and resources to monitor whether promises made by merging companies in exchange for antitrust approval are being met after deals are completed, the plan says. That should change through the requirement of frequent, independent review of mergers and assurance of additional resources to conduct these studies.
Finally, Democrats suggest the formation of a “competition consumer advocate” that would research market activity, receive consumer complaints and recommend competition investigations to the FTC and DOJ.
In a break from the normally opaque proceedings of competition agencies, the new advocate would make its recommendations public and regulators would be required to disclose why they didn’t choose to pursue a recommended investigation.
“They want to import all these non-economic considerations into antitrust analysis,” Cooper said of the plan. “You’d basically have to undo 30 years of Supreme Court precedent. These ideas are so well entrenched in antitrust.”
Antitrust enforcement is ruled by the Sherman and Clayton Acts, decades-old legislation that guide antitrust officials how to review mergers and examine companies’ conduct.
Some antitrust advocates, like the American Antitrust Institute, think the antitrust laws as written allow for broader analysis that accounts for how mergers affect wages and jobs.
Barring an overhaul of the core antitrust laws, Congress can chip away at the edges of competition issues. Members of both parties have backed bills that address issues such as pay-for-delay in the development of generic drugs.
Sen. Amy Klobuchar (D-Minn.), ranking member of the Senate Judiciary antitrust subcommittee, has said she plans to introduce a package of bills intended to help antitrust officials enforce competition laws.
One of the measures mandates that big companies trying to merge would have to pay more in fees when filing for antitrust review. The other two bills would track the effectiveness of merger settlements and analyze how investment ownership affects competition.
Democrats’ biggest chance to shape antitrust may come with the composition of the FTC. The agency is short three members, who will be nominated by President Donald Trump and confirmed by the Senate, and one of those vacancies is reserved for a Democrat.
The FTC currently consists of Republican Maureen Ohlhausen, who serves as acting chairman, and Democrat Terrell McSweeny.
McSweeny’s term is set to end this September, giving Democrats a chance to suggest another commissioner.
In May, Schumer recommended that Trump tap consumer advocate Rohit Chopra, a senior fellow at Consumer Federation of America.
Chopra comes from “sort of the [Sen.] Elizabeth Warren wing of the Democratic party” and is expected to be “sympathetic” to the issues in the economic agenda, Bloom said. Chopra previously worked at the Department of Education and the Consumer Financial Protection Bureau.
Democrats don’t have the numbers in the Senate to outright block nominees they find problematic. But they can use delay tactics to slow down Trump’s picks from getting to work.
Makan Delrahim, Trump’s nominee to lead the DOJ’s antitrust division, has been awaiting Senate confirmation for four months.
Delrahim, considered a mainstream Republican and uncontroversial selection, was one of Trump’s first assistant attorney general nominees.
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