Moss and Calkins Discuss Role of Biden Antitrust Czar

In Law360’s January 26, 2021 article “Does The Biden Administration Need An Antitrust Czar?” AAI President Diana Moss and AAI Advisory Board Member Stephen Calkins discussed the question of “What’s a czar to do?”.

From the article…

It’s not clear what exactly an antitrust czar would be responsible for doing, though czars generally help an administration raise public awareness and can help ensure policy is applied evenly at different federal agencies.

One role could be to help scrutinize regulations developed by agencies like the Food and Drug Administration and the Department of Transportation for their competitive implications.

Stephen Calkins, a professor at Wayne State University Law School and a former general counsel to the FTC, told Law360 that there’s no question that governments do all sort of things that harm competition, “either deliberately or inadvertently.” He noted a recent decision by the DOT to approve a strategic partnership between JetBlue and American Airlines that has the potential to harm competition and could have been scrutinized by a White House antitrust adviser.

“Having somebody at a high level who’s supposed to be caring about entry, and competition, and markets, that’s probably a good thing,” Calkins said.

Another role could be to better coordinate efforts at the sister antitrust agencies, which have clashed recently over key competition issues. The discord came to a head during the Trump administration when the DOJ argued against the FTC’s enforcement action targeting Qualcomm, even appearing at the Ninth Circuit to criticize the case.

As straightforward as that sounds, there could be unintended side effects from pressing better cooperation between agencies. The FTC in particular is structured to avoid outside influence; it’s an independent agency with five commissioners serving staggered terms, no more than three of whom can hail from the same political party.

Calkins said putting a czar in a role to oversee the commission could make it less independent and more like an arm of the White House. This could hurt its stature in court when defending agency decisions and its ability to attract talented young attorneys, he said, because of a loss in prestige.

The DOJ’s antitrust division is part of the executive branch, but its enforcers are supposed to retain prosecutorial independence. During the Trump administration, however, the agency was dogged by allegations that enforcement decisions were being influenced by politics, including a string of merger investigations in the cannabis industry and the probe of an emissions deal between several car companies and the state of California.

Diana Moss, president of the American Antitrust Institute, a nonprofit that advocates for robust antitrust enforcement, told Law360 that the line regarding prosecutorial discretion was crossed many times during the Trump administration.

“Likely in ways that it never has been crossed before,” Moss said.

While not wanting to comment on the Biden White House specifically, she said creating a czar to oversee the DOJ and FTC “risks politicizing competition and increases the chance that an individual or group would potentially be a lobbying target.”