Take Care is pleased to present a series of posts offering thoughts on how Congress might address key issues in antitrust law.
By Spencer Weber Waller | Loyola University Chicago School of Law
It is most welcome news that leading figures in the newly elected House of Representatives are interested in antitrust and competition policy reform. Their commitment to the issue builds on the recent formation of the Antitrust Caucus by five members of the House, as well as the prominence of antitrust issues in the 2016 and 2018 election cycles.
The antitrust laws are the economic and private sector equivalent of the checks and balances and separation of powers that the U.S. Constitution establishes for the political branches. But for too long, antitrust issues have not been a priority for Congress. As a result, less accountable branches of government have shrunk the substance, procedure, remedies, and institutions of antitrust—thus threatening its historic mission as a magna carta of free enterprise. In the process, courts and agencies have created a massive antitrust democracy deficit that has led to perverse results without Congressional approval (or, in some cases, attention).
Those days are over. The bipartisan, bicameral interest in renewed antitrust enforcement provides a vital opportunity. We can now emphasize antitrust’s role in promoting a more competitive and consumer friendly economy. Critically, antitrust can achieve these goals in a way that reduces, rather than exacerbates, the power imbalances and economic inequality that pervades our second gilded age.
To that end, Congress should move beyond routine appointment, budget, and oversight matters in antitrust enforcement. It should, instead, address big themes that characterize the current state of competition and antitrust law—both here in the United States and around the globe.
This point can’t be overstated: Congress should focus on the big picture and not the minutiae. Forgo the temptation to convene hearings on the merger or investigation of the moment. Direct that energy to assessing the most important themes in contemporary antitrust’s failure to achieve its mission over the past thirty some years. I hope the relevant committees and sub-committees in both branches can cooperate to tackle this question over a sustained set of hearings and reports.
Imagine a world where a subcommittee looked closely at changes in merger policy since 1974—the last time the Supreme Court decided a substantive merger case—and then issued a report recommending statutory, administrative, regulatory, and soft law changes to better reflect the intent of the antitrust laws. A second committee could do the same on issues of economic concentration and corporate power, probing whether antitrust law and policy is up to the challenge of the digital economy and the tech giants it has spawned. A third committee could focus on the many important antitrust policy changes adopted by the unelected branches of government and whether those changes reflect the will of Congress. Still another committee could examine the isolation of U.S. antitrust law in comparison to the more robust set of laws, procedures, institutions, and remedies found in the EU—and in the many jurisdictions that follow an EU model rather than the cowboy capitalism of the U.S.
Beyond these topics, new subjects might follow, including the importance of private and state antitrust enforcement and how best to align antitrust with the goals of democracy.
It is proper and fitting that Congress get back into the antitrust game. It is the most legitimate actor in our democracy to consider the big picture of what values the antitrust laws should foster.
If the House, or the full Congress, thinks the current system is hunky dory, it should say so. But too often the existing statutory language and Congressional intent have been ignored by courts and agencies. Congressional silence has been treated as acquiescence in neutering laws designed to control corporate power. Now is the time for Congress to add antitrust and competition policy back to its priority list—and to serve as the center of debate in finding a better way forward.