In Tuesday’s Senate Judiciary antitrust oversight hearing, one question came up repeatedly: Is it effective for both the Federal Trade Commission and the Department of Justice to enforce antitrust laws?
Antitrust, Competition Policy and Consumer Rights Subcommittee Chairman Mike Lee questioned FTC Chairman Joseph Simons and Assistant Attorney General Makan Delrahim of the DoJ’s Antitrust Division over how both agencies investigate monopolization.
Sen. Mike Lee opens an oversight hearing of the FTC and DOJ by slamming the tensions between the two agencies’ antitrust regulators, saying disputes over which agency investigates which tech company creates “institutional pettiness” and delays.
— Brian Fung (@b_fung) September 17, 2019
Chairman Lee expressed concerns that the dysfunction between the FTC and DoJ would lead to more confusion and undermine antitrust laws’ effectiveness.
“There is no analytical basis for splitting a monopolization investigation between the FTC and the Department of Justice. Doing so simply looks like both agencies want to have not just a slice of the same pie, but the same slice of the same pie at the same time,” he said.
When Chairman Lee asked whether the agencies still operate under a clearance system to avoid duplicative reviews, Chairman Simons admitted that “things have broken down.”
Assistant Attorney General Delrahim confirmed this.
Delrahim: I can’t deny there are instances where time is wasted on those types of squabbles over investigations.
— Karl Herchenroeder (@KarlHerk) September 17, 2019
Chairman Simons did emphasize that the FTC does work with other groups on the same case, like when it cooperates with state attorneys general. He said that working with state attorneys general can be helpful, though Chairman Lee pointed out that the FTC is working with other sovereign entities in that case, not a similar federal agency.
Chairman Simons clarified that for monopolization reviews, it’s preferable to have one federal agency responsible, “if for no other reason than because the resources that one of us is duplicating on the other could be applied to a completely different enforcement action or investigation.”
Later in the hearing, Chairman Simons asserted that the FTC may be the best for this task.
FTC's Simons: “If you’re only going to have one agency, you probably want one that looks more like the FTC than the DOJ.”
DOJ's Delrahim: “I reserve the right to object.”
— Ylan Q. Mui (@ylanmui) September 17, 2019
Both antitrust regulators alluded to having limited resources, but Senator Josh Hawley didn’t seem keen on allocating more funds to their efforts.
“Until we can figure out some of these structural problems that you both alluded to, I don’t know why we would spend more money to do things that frankly aren’t getting results,” the senator said.
The day following the hearing, Chairman Lee released a statement on the “dysfunction that comes with having two federal agencies responsible for civil antitrust enforcement.”
“We need robust investigations and enforcement of the antitrust laws, especially in the tech arena. That objective is likely to be hindered if the agencies are stumbling over each other trying to investigate the same companies for the same conduct,” he said.
Author: Bethany Patterson
Photo credit: Kevin Burkett (Flickr)