The latest CPI Chronicle comes at a time when the COVID-19 pandemic continues to disproportionately impact women and minorities around the globe and erects yet another roadblock to the economic and societal advancement of these groups. With this societal and economic backdrop, this edition of the Chronicle fittingly focuses upon the concept of Inclusive Antitrust and the debate about whether and how antitrust policy and enforcement could be a better tool in the fight for equality.
The issue begins with two CPI Talks interviews from competition, consumer and digital law leaders – who both happen to be women. The first is an interview of Margrethe Vestager, Executive Vice President of the European Commission for A Europe Fit for the Digital Age and European Commissioner for Competition. Executive Vice President Vestager highlights some of the important initiatives that are underway in Europe in the broader fight for gender equality and observes that there is scope for competition authorities to consider inequalities of various kinds when selecting and prioritizing antitrust cases or sectors to consider. Our second CPI Talks interview features a discussion with Rebecca Kelly Slaughter, Acting Chair of the Federal Trade Commission, an active inclusivity advocate who has argued that regulators can prioritize addressing inequities through consumer protection and antitrust. In her interview, Acting Chair Slaughter provides a road map for an inclusive approach to antitrust and consumer protection that involves taking a more holistic view of the role that antitrust enforcement and competition policy decisions play in addressing harm and digging deeper to better understand the disparate impacts of these harms.
Following these interviews, we feature a series of articles from a number of thought leaders in the area beginning with Nadia Vassos & Ellen Creighton of Canada’s Competition Bureau. For a number of years now, Canada’s Federal Government has had in place a “GBA+” or “gender based assessment” tool which assesses the potential impacts of policies, programs, services, and other initiatives on diverse groups of women, men and people with other gender identities (with the “plus” referencing considerations other than gender). Ellen and Nadia outline the efforts of the Competition Bureau to move toward more inclusive enforcement and promotion. The authors discuss the Bureau’s ongoing work with the Organisation for Economic Co-operation and Development (“OECD”) in this area as well as how the “GBA+” tool has been applied to provide insights which will inform the Bureau’s future enforcement, advocacy and compliance work.
Our next author, Maria Stoyadinova, argues that traditional competition analyses fails marginalized consumers and businesses in multiple ways by failing to ask or address important questions. She argues that addressing the current analytical gap will help prevent antitrust enforcement from perpetuating existing systems of inequality in the economy and society more broadly, while bringing competition policy closer to its stated goal of restoring balance in the marketplace.
Chris Pike, who has been at the forefront of the discussions in this area for a number of years, offers a thought-provoking feature. Chris attempts to reconcile the aims of competition and equality within antitrust, and likens this task to John Rawls’ efforts to reconcile liberalism and equality within his principles of justice. Applying what he terms as a “Rawlsian” analysis, he proposes the adoption of inclusivity as a secondary objective within competition law (not as an additional primary objective, as under a public interest test).
With their analysis of telephone rates for incarcerated persons, Dr. Coleman Bazelon & Dr. Paroma Sanyal highlight how inclusive antitrust considerations could ensure that the benefits of competition are extended to marginalized groups. The authors argue that bringing phone rates closer to an economically efficient rate would not only benefit prisoners and those they call through lower phone bills, but to the extent these savings lead to additional phone calling (more and/or longer calls), these benefits would extend not just to prisoners and their families but also to society overall through the reduced recidivism that results from keeping prisoners connected to their families and communities.
Bill Kovacic turns to the practical challenges of implementing a gender inclusive policy approach, including resource constraints, competing priorities, and buy-in from agency staff who routinely see “priorities” come and go as swiftly as leadership. He proposes implementation strategies grounded in “bureaucratic guile” that recognizes how organizations and people behave. His agenda for effective implementation begins with a call for agencies reflect upon their own experience including with respect to gender representation, historical antecedents, and efforts to increase market access.
Inclusive Antitrust can clearly encompasses a great deal, from institutional design to intersectional lenses to changes in legal and economic analyses. Yet as Gabrielle Kohlmeier & Samm Sacks explain in their article, inclusive antitrust has other inclusive policy examples to which to turn. Looking to the experience of feminist foreign policy, which is the official policy of an increasing number of countries from North America, Latin America to Europe, the authors spotlight guiding principles that are equally applicable for inclusive antitrust. The result is seven lessons with a particular focus on representation, process, and data.
As Kohlmeier & Sacks note, if evidence-based assessments are to help inform antitrust enforcement decisions, we must also acknowledge (and perhaps take aim at correcting) the dearth of data and research that is available concerning women. As Melinda Gates recently explained, “data plays an essential role in driving mobilization, but there’s not yet enough of it when it comes to the lives of women – and especially women of colour.” Unfortunately, the cause of gender equality remains woefully underfunded and as a result, the data available remains, for the time being, similarly poor.
While the COVID-19 pandemic has shone a light on and exacerbated some existing inequalities, it is also an opportunity to re-think and evaluate not just our post-pandemic public policy goals but also all the available tools. There is clearly more work to be done, more research to undertake and further discussions and debates to be had, and we are delighted to have had the opportunity to further contribute to this important discussion.
Just like the antitrust discussions it contains, the issue itself has been a collaborative, inclusive effort, and we thank all of the authors and editorial staff who contributed.
Anita Banicevic & Gabrielle Kohlmeier