Democracy Journal - Seeds of an Antitrust Revival
Legal director Sandeep Vaheesan echos the Biden Administration’s valuable promises to break with the neoliberal antitrust and competition policy program that has one-sidedly created benefits only for large corporations.
The Biden Administration has made root-and-branch reconstruction of antitrust law and competition policy a centerpiece of its economic agenda. This moment was overdue. For decades, big business-friendly lawyers and economists have dominated antitrust and remade the law to reflect their own policy preferences. They targeted trade restraints between competitors, no matter how small, when the restraints were likely to raise consumer prices and reduce output in the near term—what they called the “consumer welfare” approach—and otherwise generally respected the prerogatives of corporations, no matter how big, to do what they wanted. Federal antitrust officials and judges jettisoned traditional concerns about the concentration of economic and political power and the threat of such power to consumers, workers, entrepreneurs, and citizens. Further, they promoted policies anchored in the belief that most business practices, including mergers and acquisitions, are generally beneficial to consumers. Figures such as Judge Robert Bork and Justice Stephen Breyer advocated for a narrower antitrust law as scholars and directly changed the law as jurists. As these two names indicate, this was a bipartisan project.
President Biden pledged to break with this neoliberal antitrust and competition policy program. He appointed reformer Lina Khan to chair the Federal Trade Commission (FTC) and veteran attorney Jonathan Kanter to lead the Department of Justice (DOJ) Antitrust Division. In July 2021, he issued an executive order on “promoting competition in the American economy,” and gave 72 policy directives and recommendations to Cabinet departments and independent agencies. Biden promised more and better enforcement of antitrust and other competition laws. Singling out Bork and his “misguided philosophy” on antitrust, Biden declared: “I believe the experiment failed. We have to get back to an economy that grows from the bottom up and the middle out.”
More than three-quarters of the way through the President’s term is a good time to take stock, with a special focus on the work of the DOJ and the FTC, the two principal federal enforcers of antitrust law. Examining their record from three perspectives reveals an overall mixed performance. Judged by the number of lawsuits filed and cases won, the two agencies are in line with their predecessors and arguably underperforming them in court. But enforcement quality matters as much as quantity. Here, the DOJ and the FTC have instigated important changes, specifically by targeting employer power and taking a more aggressive posture on corporate consolidation. Moreover, Biden promised not just tweaks to antitrust policy and practice, but a rethinking of the basic philosophy. On this front, the DOJ and the FTC have opposed the narrow ideology of consumer welfare and identified fairness and democracy as the animating purposes of the antitrust laws enacted by Congress. But they are still in the early stages of translating these lofty ideals into policies and rules. A great deal of work remains to be done in a second Biden, or other future Democratic, administration.
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