The Political Misuse of Antitrust

Abstract

The increased importance of antitrust as a campaign issue and a political conversation raises long-standing troubling issues of whether antitrust enforcement (or non-enforcement) can, and is, being used for partisan political purposes. First, there were long standing rumors of White House direction to challenge the ATT-Time Warner merger. Second, the President and other key officials have alleged that social media and tech giants have exhibited a political bias against conservative messages and that antitrust was one way to deal with such alleged abuses. Third, there have been press reports that the head of the Antitrust Division lobbied members of Congress in connection with the settlement of the Sprint-T–Mobile merger investigation and personally sought to broker the divestiture that was accepted to allow the transaction to move forward. Most recently, Congress also has heard recent testimony from a whistle-blower that the Attorney General directed burdensome second requests, over the objection of career staff, to mergers posing few competitive risks in the cannabis industry out of a personal dislike for the industry. These second requests represented 29% of the total second requests during the fiscal year in question. The whistle-blower also raised concerns about the Division’s now-closed investigation — also over the objections of career staff — of car companies lobbying the state of California to maintain state emissions control at a level in excess of what the administration sought to impose at the federal level. This essay begins a long overdue conversation about how the legal system should deal with issues of personal animus or political favoritism in the enforcement of the antitrust laws. We take no position on the merits of any of the current controversies, but instead focus on the broader issue of how animus and bias in the broadest sense should be dealt with, both when cases with some potential merit are brought against perceived enemies and when cases with some potential merit are declined to protect perceived allies. We begin with distinguishing these situations of bias and animus from those of outright corruption and when antitrust considerations are set aside in favor of broader foreign policy and national interests. We then look at the limited tools within antitrust law to deal with issues of bias and political favoritism and survey related areas of the law which have been dealing with these issues more directly throughout their history.