With the Democratic primary process in full swing, we thought it fitting to take a look at where the candidates stand with respect to antitrust issues. As it turns out, this is a fairly active election cycle for antitrust, with most Democratic candidates invoking antitrust laws (and proposed laws) in connection with their visions for the future. The increased focus on antitrust has not been lost on other observers.
Perhaps the candidate most explicitly focused on the nuts and bolts of antitrust-related legislation is Amy Klobuchar, who is responsible for introducing the Monopolization Deterrence Act (which would amend Section 2 of the Sherman Act to allow the DOJ and FTC to sue for civil penalties), the Consolidation Prevention and Competition Promotion Act (which would revise merger requirements under the Clayton Act by, among other things, shifting the burden of proof to merging companies to show that consolidation will not harm competition), the Merger Enforcement Improvement Act (which would amend antitrust enforcement requirements regarding mergers by, among other things, requiring the FTC to study overlapping ownership or control by investors in certain markets), and the Preserve Access to Affordable Generics and Biosimilars Act—all in 2019.
The last of these bills would amend the FTC Act to prohibit pay-for-delay deals in which a brand manufacturer provides a generic or biosimilar manufacturer with “anything of value, including an exclusive license,” unless the thing provided “is compensation solely for other goods or services” the generic or biosimilar manufacturer has promised to provide,” or if the procompetitive benefits of the agreement outweigh any anticompetitive effects. (Certain other safe harbors apply, including deals that allow for entry of a product prior to expiration of the patent and a payment for reasonable litigation expenses “not to exceed” $7.5 million.) Pay-for-delay litigation is a subject we talk about on this blog with some regularity and a particular concern for Senator Klobuchar, who gave the subject air-time during one of the Democratic debates.
Pay-for-delay is a subject on which several of the other candidates seem to agree. Senators Warren, Sanders, and Klobuchar (together with Senators Booker and Gillibrand, who have left the presidential race) were co-sponsors on the 2017 Improving Access to Affordable Prescription Drugs Act, which, among numerous other provisions, included a prohibition on pay-for-delay deals largely similar to that found in the Preserve Access to Affordable Generics and Biosimilars Act mentioned above. Meanwhile, Pete Buttigieg has released a plan that would “end” such deals as part of a broader effort to reduce drug prices.
Other candidates have more ambitious proposals. Elizabeth Warren, of course, garnered attention for her plan to “break up Big Tech,” setting her sights on Facebook, Google and Amazon. Bernie Sanders, asked if he would follow suit, answered, “absolutely,” and has also made breaking up large corporations a centerpiece of his policy rhetoric. Sanders, meanwhile, has called to revive criminal prosecutions against executives responsible for illegal monopolization efforts (the same article reports that Warren’s campaign confirmed that she, too, would reinvigorate criminal prosecutions for antitrust violations). And in a somewhat unusual nod to antitrust jurisprudence for a campaign website, Sanders lambastes “failed Supreme Court nominee Robert Bork’s … far right ideology” for having enabled the “hijacking” of the federal judiciary and antitrust agencies.
Joe Biden and Pete Buttigieg are less committal when it comes to breaking up big companies. Biden said, “I don’t think we spend nearly enough time focusing on antitrust measures,” but also that it would be “premature” to make a final judgment about breaking up the “big tech” companies. Similarly, Buttigieg says that breaking up Facebook is “on the table,” but he would not follow Warren’s lead in committing in advance to pursue that remedy.
This is not to say, however, that Buttigieg and Biden do not consider antitrust laws one of the tools available to pursue their policy aims. Buttigieg, for instance, would “double” the antitrust enforcement budget and lower the reporting threshold for mergers as part of his plan to reinvigorate the economy in rural America. In his view, processing plants and seed companies have become too consolidated and powerful. Biden has a similar statement calling for strengthening antitrust enforcement to “protect small and medium-sized farmers and producers” in the rural parts of the country.
While antitrust law might not supply the fodder of proverbial “kitchen-table issues,” competition and antitrust enforcement loom about as large in this primary season as they have for a while.
