Donna Faye Imadi ‘22
Current Events Editor
The Biden-Harris Administration inherited an era of antitrust akin to that at the turn of the early 20th century. Except, rather than the industrial era, it is the new technological dynamism in the economy challenging our leaders to craft a path forward in a pandemic-ridden business climate. How does the Biden Administration intend to chart a path forward? From federal agencies, Congress, and the Executive Branch, here are some key developments to watch in 2021.
The Agencies | DOJ & FTC
Expert Leadership in Antitrust with DOJ AG Merrick Garland and BigTech Investigations continued...
The Biden Administration’s DOJ and FTC, two apolitical antitrust enforcement agencies, are inheriting major monopolization cases against Google and Facebook, with probes also open into Apple and Amazon. If action is not taken in Congress to clarify our antitrust laws, these agencies may be at the helm of setting precedents that will transform the application of antitrust law in the 21st century, wherein new technologies are redefining our understanding of market structure. The five cases[1] include three against Google and two against Facebook. These are the biggest antitrust cases that the government has considered in the past quarter-century (since the Microsoft case). At a time when antitrust law is at a crossroads, with a philosophical debate[2] questioning the efficacy of the consumer welfare standard, the arguments that animate and determine the outcome of these cases have great potential to reshape the economic theories and concepts applicable to antitrust in a tech-driven future.
Further, the nomination of Merrick Garland as Attorney General marks only the second time in DOJ history where the AG has had extensive experience in antitrust. Incoming AG Garland taught antitrust law at Harvard University and has a reputation as a well-balanced expert. In his recent 2019 opinion as a judge on the U.S. Court of Appeals for the D.C. Circuit in Marshall’s Locksmith Service v. Google, he affirmed the dismissal of claims against Google, Microsoft, and Yahoo! by applying the Communications Decency Act’s Section 230 immunity provisions; though it has also been said[3] he holds a view deferential to the directive of the legislature's intentions and not purely economic analysis. Incoming AG Garland is forecasted to bring a balanced lens, likely guiding the DOJ to pursue well-developed cases in legal and policy principles.
Congress | Senate Judiciary and House Judiciary Subcommittee on Antitrust
Chairwoman Amy Klobuchar and the Antitrust Law Enforcement Reform Act
As Democrats control the House and Senate, the potential for legislative reform on antitrust is sky-high. Amy Klobuchar’s appointment as the Chair of the Senate Judiciary Subcommittee on antitrust is setting a tone for greater antitrust scrutiny, with her sweeping proposed reform bill, “Antitrust Law Enforcement Reform Act,”[4] referred to as the biggest overhaul of antitrust laws in forty-five years. Senator Klobuchar, who has a reputation[5] for advocating stronger antitrust enforcement, reflects the prospects of tenacious leadership that will be strong enough to rally political-will in pushing antitrust reform legislation, coinciding with the advent of a Democratic-controlled Congress. Chairwoman Klobuchar may even conduct investigations into BigTech and other concentrated industries, akin to the House Subcommittee in 2020, which led to a sweeping 450-page report.[6] Notably, the Republican-minority issued a companion[7] report agreeing with Democrats on increasing agency funding, data portability and interoperability, reforming the burden of proof in merger cases, and clarifying the role of market definition in antitrust inquiries.
The Executive | The Biden-Harris White House
A Populist-Paradigm, potentially in the form of an Antitrust Czar
The Administration has been vocal in their advocacy of bringing a diversity and equity lens[8] to many of their policy efforts. Action on reviewing impacts of algorithm bias, antitrust and labor, and introducing a civil-rights lens to competition policy, will be influenced by the forthcoming FTC Chair (yet to be announced). Further, the Administration has entertained proposals for a hyper-specialized office: an “Antitrust Czar,” who may oversee the coordination and information sharing back-and-forth between the agencies. The prospect of such a conduit may be arguably beneficial in increasing coordination, yet has potential to be harmful if viewed as politicizing and duplicating the efforts of the apolitical agencies.
2021 at a Crossroads
Antitrust has become a central concern, not least due to worries over economic concentration and income inequality. Implications of the concentration of power in the hands of a few companies controlling information, media, and access to business opportunities have sparked vigorous social debates over cancel culture, free speech (see Parler v Amazon)[9], and other issues that influence society far beyond the bounds of the Sherman and Clayton Acts. Cast in this light, the potential of a White House czar on antitrust[10] and proposed “reality czar”[11] may not be coincidental. Rather, it reflects the relationship between the two arenas where economic power is a gateway to social/political influence over the construction of our realities.
A new season of “antitrust populism” may be on the horizon, but is not yet written in the stars. Time will tell whether or not federal agencies, Congress, or the Executive will have the first word on the way forward.
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dfi3un@virginia.edu
[1] https://news.bloomberglaw.com/antitrust/what-to-expect-in-antitrust-policy-enforcement-from-biden-administration
[2] https://www.lawweekly.org/front-page/2019/10/2/make-antitrust-cool-again-antitrust-in-the-digital-economy
[3] https://www.law.com/thelegalintelligencer/2021/01/22/attorney-general-nominee-merrick-garlands-antitrust-experience/
[4] https://www.cnbc.com/2021/02/04/klobuchar-unveils-sweeping-antitrust-bill-laying-out-her-vision-as-new-subcommittee-chair-.html
[5] https://www.klobuchar.senate.gov/public/index.cfm/2020/3/klobuchar-introduces-legislation-to-deter-anticompetitive-abuses
[6] https://www.google.com/url?q=https://www.skadden.com/-/media/files/publications/2021/01/2021-insights/competition_in_digital_markets_450_pages.pdf?la%3Den&sa=D&source=editors&ust=1612836072683000&usg=AOvVaw2hvmb_gWh766ppqv0e6sYN
[7] https://www.google.com/url?q=https://www.skadden.com/-/media/files/publications/2021/01/2021-insights/buck_report_companion_report.pdf?la%3Den&sa=D&source=editors&ust=1612836089687000&usg=AOvVaw0kBYL6t_kL5usRqW3T8aF8
[8] https://www.c-span.org/video/?507733-1/communicators-social-media-tech-issues-2021
[9] https://www.politico.com/news/2021/01/11/parler-amazon-antitrust-suit-457579
[10] https://www.law360.com/articles/1347585
[11] https://www.nytimes.com/2021/02/02/technology/biden-reality-crisis-misinformation.html