FTC Commissioners, Alumni See Potential Antitrust Changes if Biden Elected

Any Joe Biden administration could mean major changes in how DOJ and the FTC handle antitrust matters, said current and former FTC commissioners during a Tuesday Technology Policy Institute webcast event. They suggested that what changes might occur if Democratic presidential nominee Biden wins depend on what resources and statutory changes Congress provides. Some FTC alumni commented on the DOJ Antitrust Division’s lawsuit against Google, claiming the company engages in anticompetitive behavior in its search engine business (see 2010200058).

A Biden administration’s antitrust doctrine would be shaped by who Biden names to lead the FTC and DOJ, said Democratic ex-FTC Chairwoman Edith Ramirez. “It is important for us to take a look” at how antitrust is working during President Donald Trump’s administration, said Ramirez, of Hogan Lovells. “You see divides in how antitrust should be applied to the digital economy.” Republican Commissioner Christine Wilson believes a Biden administration is likely to seek more federal “intervention” on vertical tech sector transactions and more enforcement on horizontal deals and hold tech CEOs liable for their companies’ conduct.

There’s “a lot more agreement than disagreement” among Democrats on how federal agencies should handle tech antitrust matters, including on the need to be more aggressive and push for more enforcement against bad actors, said Democratic Commissioner Rebecca Kelly Slaughter. She cited the House Antitrust Subcommittee Democrats’ report on competition in the digital economy, which supported bills to institute structural separation and line of business restrictions to address alleged abuse of market power by major tech companies (see 2010060062). The report “raised some very serious questions about our digital economy,” and Congress should seriously consider enacting some of its recommendations, Slaughter said.

Ramirez is concerned by the House Antitrust report’s claim that institutional failure prevented federal agencies from doing more about tech sector anticompetitive behavior. FTC deal reviews are always backward-looking, which makes it difficult for the agency to clearly determine whether emerging companies might be a competitor with bigger ones, she said.

It’s “hard to imagine” the FTC “could be doing more” on antitrust without Congress giving the agency more resources, Wilson said. “If we significantly expand the spectrum of activities that we define now as unlawful, we are going to have a significant resource constraint.” The commission needs “to do everything we can with the tools we have and demonstrate” how more resources and statutory changes can improve the FTC’s enforcement abilities, Slaughter said.

There’s a rare level of bipartisan agreement the FTC needs more funding, Slaughter said. The House passed an FY 2021 appropriations bill in July that increased annual funding to $341 million (see 2007310053), up 3% over what the agency received for FY 2020 and 3% more than the Trump administration proposed.