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What Might November’s Election Mean for Antitrust Enforcement?

It is probably safe to say that most voters in the 2016 presidential election do not view antitrust policy as a key campaign issue.  Accordingly, the candidates’ and their parties’ views on competition policy were scarcely, if at all, mentioned during the recent party conventions.  However, the parties’ official platforms suggest how the candidates, once in office, would handle competition policy.

The Democratic platform supports promoting competition and pledges to “take steps to stop corporate concentration in any industry where it is unfairly limiting competition,” including strengthening competition policy and promoting vigorous enforcement by the DOJ and FTC.  The platform supports “prevent[ing] abusive behavior by dominant companies, and protecting the public interest against abusive, discriminatory, and unfair methods of commerce.”  The platform further calls on all executive agencies to detect anticompetitive practices and refer such practices to the DOJ and FTC.  The Republican platform, in contrast, is silent on the issue of antitrust policy, except for a single proposal to repeal a statute that largely exempts insurance companies from federal antitrust litigation.  (The Libertarian Party platform is silent on the issue of antitrust, while the Green Party’s platform calls for “strong and effectively enforced anti-trust regulation.”).

What this means in practice is unclear, as statements in party platforms do not always result in specific policies.  Even the Democratic platform—which contains more emphasis on increased antitrust enforcement than the Republican platform—speaks in generalities, by highlighting “abusive,” “dominant,” and “anti-competitive” conduct.  The antitrust laws are broad and a President has significant discretion to direct the enforcement priorities of the DOJ and FTC.  But while a President can allocate resources, any budget that includes funding for additional enforcement attorneys or other staff must be approved by Congress, and the upcoming election could result in different parties controlling the Executive and Legislative branches.

Moreover, despite the differences in party platform language, it is not clear that the parties differ greatly in their antitrust enforcement priorities.  Data shows that antitrust enforcement budgets have increased—and the rate of merger challenges has risen—in every administration beginning with Ronald Reagan, regardless of which party held the Presidency.  Thus, while the conventional wisdom is that a Clinton victory would lead to augmented antitrust scrutiny, increasing federal enforcement of competition laws could continue regardless of the election’s outcome.