Klobuchar exposes sweeping antitrust law, setting out her vision as new chair of the subcommittee

Senator Amy Klobuchar, D-Minn., On Thursday unveiled a sweeping antitrust reform bill, setting a harsh tone in her new role as chair of the Senate’s antitrust subcommittee.

Klobuchar has been a frequent critic of what she and other lawmakers have seen as lax enforcement of existing antitrust laws and has called for firm action against some of the big tech companies. While it has presented several bills in the past to bring about reforms to various aspects of antitrust law, the Competition and Antitrust Law Enforcement Reform Act is a comprehensive proposal calling for a major overhaul of enforcement standards. If passed, it would pose significantly more risk to companies like Facebook and Google, which are already dealing with federal lawsuits, and any dominant company looking to acquire another company.

With this bill, Klobuchar is putting her line in the sand on antitrust reform, indicating that she will use her post to call for major changes in the status quo. Broadly speaking, the bill aims to reform antitrust law in three main ways: 1) reestablish the standard of enforcement and shift the burden of proof to dominant companies in merger cases; 2) require agencies to study markets and merger securities on a regular basis, using additional means; and 3) providing new tools for antitrust enforcement officials, such as imposing civil sanctions.

In the Chamber, Chairman of the Antitrust Subcommittee David Cicilline, DR.I., has similarly called for extensive reforms during an investigation into Amazon, Apple, Facebook and Google. That investigation culminated last year in a nearly 450-page report on the companies’ alleged monopoly power and proposed reforms to restore competition in the digital marketplace.

While the Republicans on the House subcommittee were not entirely in agreement with the Democrats’ far-reaching proposals, they mainly saw face to face with the problems in the marketplace and the need for some reform. That might give some hope that Klobuchar’s proposals will be accepted, at least in part.

Klobuchar’s bill aims to strengthen antitrust enforcement in the following ways, among others:

• Raising the bar for dominant companies wishing to merge with other companies, for example by shifting the burden of proof to merging parties.
• By adding a ban on “foreclosure” behavior to the Clayton Act, which regulates mergers, to make it more difficult for dominant companies to prove that their mergers will not harm competition when they engage in such acts. Foreclosure behavior includes actions that disadvantage current or potential competitors or limit the ability or incentive of rivals to compete.
• Authorize an increase of $ 300 million in annual budgets of the antitrust division of the Department of Justice and the Federal Trade Commission, which enforce antitrust laws.
• Allow antitrust enforcers to demand civil sanctions for violations of monopoly law and the foreclosure behavior triggered by the bill, in addition to other remedies they can already seek, such as breakups and court orders.
• Establish an independent competition attorney’s office within the FTC that can conduct market analysis to inform enforcement and help raise consumer complaints.
• Require merged companies to keep agencies informed of the results of their deals and to study the impact of previous mergers.
• Extending incentives for whistleblowers to those who identify possible civil violations.

Klobuchar has blamed erroneous court decisions for weakening the meaning of existing antitrust laws, a view shared by members of both parties, including former President Donald Trump’s antitrust chief at the DOJ. Her bill aims to overhaul the standards for determining the existence of a violation, giving both government agencies and private complainers more opportunities to fight against dominant companies.

That could come in handy as the agencies prepare to face some of the world’s largest companies with deep pockets. Federal agencies and state enforcers are already in the middle of lawsuits against Facebook and Google that will take years if they come to court. And enforcers have also looked at both Amazon and Apple, multiple outlets have reported. All companies have denied engaging in anti-competitive behavior.

In the meantime, these companies probably wouldn’t be surprised if they got an invitation to testify before the Klobuchar subcommittee this year.

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