Antitrust Law Daily Senate antitrust subcommittee ranking member cautions against radically altering antitrust regime
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Tuesday, February 16, 2021

Senate antitrust subcommittee ranking member cautions against radically altering antitrust regime

By Jeffrey May, J.D.

Lee cautions against altering "antitrust enforcement regime in a manner that would undermine both the economy and Congress’s legislative prerogative."

Offering a Republican antitrust agenda for the 117th Congress, Senator Mike Lee (R., Utah), newly-appointed ranking member of the Senate Judiciary Committee's antitrust subcommittee, said today that "there appears to be a broad consensus that the status quo isn’t working." Lee suggested that for a decade federal antitrust enforcers "were asleep at the wheel while Silicon Valley transformed from a center of innovation into a center of acquisition." Thus, Lee called for addressing competition issues in the tech sector. However, he advised that changes to the antitrust laws will need to be a bipartisan effort with buy-in from both sides.

"Innovation is supposed to benefit consumers by challenging the market incumbents, not strengthening their monopoly power," said Lee. "But this works only when there is adequate antitrust enforcement, rather than laissez-faire deference to the sort of speculative efficiencies Judge Bork warned against in The Antitrust Paradox. Everyone knows that illicitly obtained monopolies lead to higher prices and lower quality for consumers. Now we are seeing that, unchecked, they can also threaten our most basic liberties."

Earlier Klobuchar proposal. Lee’s announcement follows a legislative proposal by Senator Amy Klobuchar (D., Minn.), ranking member of the antitrust subcommittee, that would create a new provision under the Clayton Act to prohibit "exclusionary conduct," which is defined as conduct that materially disadvantages actual or potential competitors or limits their opportunity to compete. The proposed "Competition and Antitrust Law Enforcement Reform Act" also would amend Section 7 of the Clayton Act to forbid mergers that "create an appreciable risk of materially lessening competition" rather than mergers that "substantially lessen competition. "The measure also calls for civil penalties for antitrust violations among other changes (See Antitrust Law Daily, February 4, 2021).

Lee said that he appreciated Sen. Klobuchar’s opening contribution to the bipartisan discussion and that he was excited to work through the details with her and others to reach a consensus approach to improving antitrust enforcement for the 21st century. Yet he noted the importance of a bi-partisan approach.

Renewed call for one federal antitrust agency. Lee said that, as part of his agenda, he would reintroduce the proposed "One Agency Act" to consolidate antitrust enforcement authority at the Department of Justice. In November 2020, Lee introduced the proposal, which would have removed the FTC’s "unfair methods of competition" authority and transferred all FTC antitrust matters, personnel, and resources to the Justice Department. At that time, Lee noted that the bill would not change the FTC’s ability to police "unfair and deceptive acts or practices" pursuant to its consumer protection mission under Section 5 of the FTC Act.

FCC merger review. In today’s statement, Lee said the new One Agency Act would include provisions to address the "inequities" of Federal Communications Commission (FCC) merger review. In the past, Lee has supported legislation to require the FCC to issue merger review decisions expeditiously and issue a decision within 180 days of receiving a completed merger application.

Investigations. "In addition to legislation, it is crucial that Congress continue to exercise its investigative and oversight functions by examining competition throughout the economy," said Lee. He identified some areas of concerns:

  • Investigations. "In addition to legislation, it is crucial that Congress continue to exercise its investigative and oversight functions by examining competition throughout the economy," said Lee. He identified some areas of concerns:
  • How pandemic lockdowns harmed competition by killing small businesses;
  • How competition in healthcare markets is distorted by the Affordable Care Act and other government regulations;
  • The relationship between antitrust law and patent law, including in the standard-setting context;
  • Whether vertical integration among media and telecom companies is restricting innovation or output;
  • Whether app stores owners are restricting competition from developers; and
  • Competition issues in finance, including whether large private equity firms that hold stakes in competing businesses are distorting competition in those markets.

"There are many more topics one could list," added Lee. "I’m open to them all. We are at an inflection point, and it is crucial that we not waste it."

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