The incoming Biden administration should pursue legislation to increase competition and rein in dominant companies across the economy, according to a report by antitrust experts including Bill Baer, a former Justice Department official and a member of President-elect Joe Biden’s transition team.
The report said legislation is needed to clarify or overrule “flawed” court decisions that constrain antitrust regulators and to address emerging competition problems. It was released Thursday by the Washington Center for Equitable Growth, a nonprofit think tank focused on economic justice issues.
The report also calls for $600 million in increased annual appropriations for antitrust enforcement at the Department of Justice and the Federal Trade Commission and to establish a new White House Competition Office within the National Economic Council. The effort comes amid calls on Capitol Hill for an antitrust overhaul, particularly amid concern about the market power of big tech companies like Alphabet Inc.’s Google and Facebook Inc.
“The administration should seize this moment of both bipartisan and unambiguous public support for stronger antitrust enforcement to seek legislative action that would restore the core functions of the antitrust law,” the report said.
Baer, who worked in the Obama administration, is a visiting fellow in government studies at the Brookings Institution. He is on the Biden transition team for the Federal Trade Commission.
Co-authors of the report include Jonathan Baker, a law professor at American University; Michael Kades, director for markets and competition policy at the Washington Center for Equitable Growth; Fiona Scott Morton, an economics professor at Yale University; and Tim Wu, a professor at Columbia Law School.
The report said U.S. antitrust enforcement has failed to prevent increased market power across the economy, largely because courts have made a policy judgment that favors nonintervention. Legislative action is likely the best option for reversing the trend, it said.
The group of experts and academics proposed changes such as clarifying that antitrust laws are intended to protect against harms from the loss of nascent competition, or recognizing that corporate behavior posing substantial competition risks may be deemed unlawful, even if it can't be shown that harm is more likely than not to occur.
Antitrust reform is expected to be a top priority for the House Judiciary Committee in the next Congress. Last month, committee Democrats unveiled a staff report documenting alleged anticompetitive practices by dominant tech platforms. That report will help drive an agenda to "reinvigorate" U.S. antitrust laws, said Rep. David Cicilline, D-R.I., chairman of the panel’s Antitrust Subcommittee.
"Now that we have identified the problem, it's critical that we use all the tools Congress has — including legislating, granting rulemaking authority and conducting oversight — to start solving this problem for the American people," Cicilline said last week during a virtual conference hosted by Swiss bank UBS AG, according to prepared remarks.
The committee report concluded that Google, Facebook, Amazon.com Inc., and Apple Inc. abuse their market power by charging exorbitant fees, imposing oppressive contract terms, and extracting valuable data from the people and businesses that rely on them. It included recommendations such as prohibitions on certain dominant firms operating in adjacent lines of business and requirements relating to interoperability and data portability.
Despite policy disagreements with Republicans in some areas, Cicilline said he expects a bipartisan process, because there's widespread agreement on the facts. “We agree that Google, Amazon, Facebook and Apple each possess and have abused their monopoly power, in ways that have harmed competition and consumers,” he said.