February 8, 2021
As incoming head of the Senate antitrust subcommittee, Senator Amy Klobuchar (D-Minnesota) renewed her call to legislate major changes to U.S. trust laws. Specifically, the legislation would prevent companies that dominate in a sector from purchasing other companies unless they can prove the deals don’t “create an appreciable risk of materially lessening competition.” Klobuchar suggested such changes in Congress’ previous session and Republicans largely rebuffed them. Democrat control of the Senate could improve the odds of passage.
The Wall Street Journal reports that Klobuchar’s legislation would flip the onus of proving that a merger “substantially lessens competition” from the government to the company attempting to conclude an acquisition. The bill would provide a $484.5 million budget for the Justice Department’s antitrust division and $651 million for the Federal Trade Commission.
Klobuchar noted that, “we have an increasing monopoly problem, really headlined by what is happening with tech,” adding that, “our laws have to be as sophisticated as those that are messing around with competition.”
The past has seen “bipartisan scrutiny of acquisitions by tech giants including Facebook and Alphabet’s Google … [and] the Biden administration is expected to continue antitrust lawsuits filed last year targeting those two companies.”
The House of Representatives antitrust subcommittee chairman David Cicilline (D-Rhode Island) is “drafting his own legislation designed to address [antitrust] issues raised during the previous session of Congress.” He is considering a law that would prevent Big Tech companies from “both operating huge online platforms and selling their own products on those platforms in competition with other users.”
Both former Justice Department antitrust head Makan Delrahim and representative Ken Buck (R-Colorado), who will soon be the top Republican on the House antitrust subcommittee, endorsed the concept of creating a higher bar for mergers by big companies. ACT | The App Association president Morgan Reed warned, however, that, “when a large company with deep pockets gets told by a regulator not to do certain things, they build walls, they don’t build bridges.”
CNBC reports that Klobuchar’s proposed Competition and Antitrust Law Enforcement Reform Act “could draw even more risk and scrutiny to large firms including Amazon, Apple, Facebook and Google.”
It outlines the three ways her legislation aims to reform antitrust law: “resetting the standard for enforcement and shifting the burden of proof onto dominant firms in merger cases; requiring agencies to study markets and merger effects regularly, with the help of additional funds; and giving new tools to antitrust enforcers, like imposing civil penalties.”
Her proposed law would also add a “prohibition on ‘exclusionary conduct’ to the Clayton Act, which governs mergers, to make it harder for dominant firms to prove their mergers won’t harm competition if they engage in such acts” as well as create an independent Office of the Competition Advocate within the FTC.