Mergers & Antitrust Law News

Dem Presidential Candidates Seize on Antitrust as Campaign Issue (1)

March 9, 2019, 6:28 PMUpdated: March 11, 2019, 2:45 PM

Tech giants’ market dominance has Democratic presidential candidates seizing on antitrust as a potent campaign issue to an extent not seen in more than a century.

Sen. Amy Klobuchar (D-Minn.) said she wants to make antitrust “cool again” at one of her first public appearances as a presidential candidate earlier this month and this 2020 election will be the best shot to make it happen.

“I think we are going to be able to have a better discussion of this framed in a way around things like pharma pricing and data privacy, which is going to make it more bite sized and doable for an election,” Klobuchar said during an interview March 9 at the South by Southwest conference in Austin.

A day earlier, Sen. Elizabeth Warren (D-Mass.) proposed breaking up Amazon Inc., Facebook Inc., and Alphabet Inc.'s Google and strictly regulating them as “utilities.”

The senators’ populist rhetoric early in the 2020 cycle could drive other candidates to adopt similarly aggressive views and may further amp up political pressure to rein in big tech’s influence. Two other Democratic candidates - former Colorado Gov. John Hickenlooper and Sen. Bernie Sanders of Vermont - have also invoked antitrust in recent days.

“They see it as a political winner,” Scott Wallsten, president of the Technology Policy Institute, said.

Competing Approaches

Klobuchar March 9 pushed back on Warren’s proposal, calling for more “adequate” investigations before breaking up companies. “I just don’t come in and say ‘break this up’ and ‘break that up,’” she said.

She also proposed a tax on big tech’s use of consumer data, saying consumers shouldn’t have to give it away for free. “Maybe there is some way we can do that with large sets of data, when they [tech companies] use it or they sell it,” she said.

Hickenlooper said March 10 that tech’s market dominance could be the reason new businesses fail to grow. “They are, in many circumstances, becoming so large they make it harder for small companies to compete,” he said during an appearance on CBS’s ‘Face the Nation.’

Sanders said in a March 7 speech in Iowa that as president he would appoint an attorney general who will better enforce antitrust laws. Sanders said that monopolies are dominating the agriculture market and U.S. antitrust enforcers have done little to prevent further consolidation as seen by the recent U.S. approval of Bayer AG’s $63 billion merger with Monsanto.

Louder Drumbeat

The antitrust drumbeat against big tech companies has been getting louder for months in both parties. House Speaker Nancy Pelosi (D-Calif.), Sen. Charles Schumer (D-N.Y.) and Sen. Mike Lee (R-Utah) have railed against technology companies’ pervasive influence and consolidation seen in other industries, such as healthcare. President Donald Trump has complained that social media sites such as Twitter are suppressing conservative viewpoints, which he has said is a potential antitrust violation.

Now, Silicon Valley faces the prospect of the kind of legal challenges or even breakups it most fears becoming a prominent progressive campaign plank. Busting monopolies hasn’t been such an intense focus of a presidential campaign since the 1912 election with Woodrow Wilson, William Taft, and Theodore Roosevelt according to Herbert Hovenkamp, a University of Pennsylvania law professor who studies antitrust. Wilson ran his successful campaign promising to tighten antitrust regulation

“To the extent antitrust dominates a campaign as it did back in 1912, that remains to be seen, but it will likely take a higher profile than in other presidential elections,” Maurice Stucke, an antitrust professor at the University of Tennessee’s College of Law, said.

Klobuchar and Warren both invoked Roosevelt’s tough approach to antitrust when he was president from 1901 to 1909 during their South by Southwest appearances.

Warren named Roosevelt “the trust buster” as her favorite former president.

“This is what brought Teddy Roosevelt into the White House, he ran on breaking up the trusts and making sure he preserved a capitalist system,” Klobuchar said.

Antitrust Experts

Klobuchar and Warren’s proposals could be more than just campaign rhetoric. They both bring deep knowledge of antitrust law and years of experience reining in large companies.

Klobuchar, as the ranking member of the Senate subcommittee on antitrust, oversees the federal agencies that enforce U.S. antitrust laws, the Federal Trade Commission and the Justice Department. She’s been critical of Sprint Corp.'s proposed $26.5 billion acquisition of T-Mobile US Inc., and she’s pushed enforcers do more to stop potential anti-competitive mergers.

She’s also introduced several bills that would strengthen antitrust, including a measure that would force merging companies to pay higher fees to the government. Before joining the Senate, Klobuchar represented MCI Communications Corp., a long-distance phone company, in its successful fight to break up AT&T Corp.'s stronghold on the telecommunications industry.

Klobuchar also wants to shift the standard of burden in merger investigations by making companies first prove that their proposed merger isn’t anti-competitive. The burden currently is on the government to show how mega-deals would be harmful to consumers.

Warren, as the ranking member of the Senate’s Subcommittee on Financial Institutions and Consumer Protection, has repeatedly called for stronger oversight of the country’s biggest banks.

Warren also has been critical of the DOJ’s chief antitrust enforcer, Makan Delrahim. In 2017, Warren blocked Delrahim’s nomination, saying that he’d been too lax on merger enforcement. Once Delrahim was confirmed, Warren asked him to recuse himself from the investigation of AT&T Inc.'s merger with Time Warner since Delrahim, as a law professor, previously said the merger wasn’t anti-competitive.

“We have two high-profile candidates both putting antitrust forward as a top issue and it means that the rest of the democratic field can’t ignore it,” said Siva Vaidhyanathan, a University of Virginia media studies professor who helped Warren draft her tech policy proposal. Other candidates “have to take it seriously.”

(Updated with additional reporting throughout)

To contact the reporter on this story: Victoria Graham in Washington at vgraham@bloomberglaw.com

To contact the editors responsible for this story: Roger Yu at ryu@bloomberglaw.com; Seth Stern at sstern@bloomberglaw.com

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