Regulatory Review - Antitrust as Anti-Oligarch Policy
In Regulatory Review, Open Markets legal director Sandeep Vaheesan argues that states should rebuild antitrust law with clear rules to curb corporate power.
.The Trump Administration’s corruption is made possible by more than 40 years of antitrust policy and practice. Federal antitrust enforcers and corporate allies are merely exploiting the so-called rule of reason, a legal standard that is enormously malleable and interpreted and applied almost entirely out of the public eye. Justice Department and FTC evaluation of mergers is so opaque that veteran antitrust attorney Seth Bloom quipped to ProPublica in 2016 that “there are few government functions outside the CIA that are so secretive as the merger review process.”
…
Even with a big business-friendly Congress and President, state legislatures can undertake antitrust reform. They should establish simple and straightforward rules of market conduct. Lawmakers should generally prohibit mergers involving firms with, for example, market shares of more than 20 percent or annual revenues greater than $10 billion and outlaw unfair practices such as exclusive dealing and predatory pricing for these firms. Such rules, akin to speed limits on roads, would protect consumers, workers, and suppliers from concentrated corporate power and pressure businesses to grow and succeed through fair treatment of their trading partners, investment, and research and development. These clear prohibitions would enhance the rule of law and limit discretion for enforcers and judges.
Complementing substantive reform with greater transparency, as well as stronger rights of action for private parties and state attorneys general, is critical. Better law can be neutered in application if the Mike Davises can continue to practice their dark arts successfully behind closed doors.
Antitrust was born during an anti-oligarchy moment in the late 19th century. In 1890, Senator John Sherman of Sherman Antitrust Act fame declared that “if we would not submit to an emperor, we should not submit to an autocrat of trade.” With anti-oligarchy in the air again, the states and eventually Congress should rebuild antitrust from the ground up and make the law serve ordinary Americans.
Read the full piece in Regulatory Review here.