A brief article appeared in Lexology on Wednesday discussing the likely ramifications for antitrust enforcements after November’s election. We have some disagreements with the authors’ statements and would like to respond point-by-point.
The authors state that antitrust enforcement is in the Democratic Party platform, but were not mentioned at either convention. We disagree. Perhaps the mechanics of antitrust enforcement were not spelled out, but convention rhetoric is meant to appeal to a broad population. Antitrust policies are not important voting issues for many Americans, but the effects of antitrust enforcement are. Both Secretary Clinton and Senator Sanders mentioned rising drug prices as a source of financial stress for many Americans. Antitrust health care policy addresses some of the primary drivers of rising drug prices such as big pharma thwarting generic entry through product hopping and pay-for-delay schemes.
The article says that Congress is implicated in the availability of funds for antitrust enforcement, and since different parties could control Congress and the White House, it is unlikely the DOJ and FTC will receive the funds they need. But different parties control the two branches at some point in almost every administration. This trend is also likely to continue given current electoral dynamics (gerrymandering, demographic shifts, midterm voter turnout). Given this reality, is the best thing for the economy to simply throw in the towel on antitrust? Or is it to roll up our sleeves and work to build consensus around issues that affect almost all Americans?
In the piece, it says it is not clear that the parties differ on antitrust priorities. The parties do differ on antitrust in their platforms and as a matter of record. In the paper cited in reference to DOJ budgets, Figure 15 shows a pattern of stronger antitrust enforcement by Republican Presidents. President Obama had both the highest rate of merger challenges and presided during the biggest year for mergers on record, 2015.
The last sentence left me scratching my head. First, “conventional wisdom” does not apply in this election cycle. Not only is Mr. Trump completely unpredictable, he is the first presidential candidate to come from the business world. His council of economic advisors is filled with real estate and Wall Street billionaires who are not likely to support strong antitrust enforcement. If you have doubts, look at Trump’s actual economic plan. It is great for people like Trump, his children, and his advisors, and bad for pretty much everyone else. So, you have to ask yourself: Does Trump’s campaign look like it could become an administration poised for excellent antitrust enforcement? The answer is clearly “no.”