How Does the Recent Massachusetts Election Influence Antitrust?

Competition Policy International is headquarted in Boston, Massachusetts, so the recent election results, where an independent/Republican candidate (Scott Brown) beat out a Democratic challenger have mesmerized us here, as it appears to be doing in the rest of the country. For those of you who don’t follow U.S. politics, this campaign had two huge ramifications that should eventually touch even antitrust law and enforcement.

First, this state is overwhelmingly liberal in its polical viewpoint. All of the senators and representatives from Massachusetts were Democrats until this election, and the seat that Scott Brown won had been held by Ted Kennedy for 47 years (before that it was held by John Kennedy and a Kennedy stand-in). The fact that Brown could defeat a Democrat—even one who admittedly ran a error-filled campaign—is mind-boggling. It is, in effect, a warning shot for anyone in the U.S. Congress who thinks they have a safe seat. They don’t, and they will need to start listening to their consitituencies a lot harder. While antitrust is hardly a routine dinner-time conversation for many, the issue does touch on elements that voters really do care about, from what it will cost to buy a football sweatshirt (see the American Needle case up now before the Supreme Court) to which microchip they will have in the computer (FTC vs. Intel). The politicians and those who work for politicians (i.e. Obama appointees) will need to be far more cognizant of how their actions play in the minds of voters. There can no longer be an attitude of “we know what’s best and don’t need to have to make a convincing argument to the American voters to do what we want to do”.

The second ramification is that Scott Brown breaks the ability of one party (Democrats) to ram through any legislation they can, as was possible when Democrats had a super majority in Congress. Before the election, the Senate did not need any Republican vote to pass legislation. Brown’s election, where he is the 41st Republican in the Senate, would allow the Republicans to fillibuster or stop the bill’s progress, (obviously the Democrats in the Senate still represent more than 51 votes so they can easily approve bills, but it takes a super majority of 60 votes to stop a fillibuster). There is a saying that passing legislation is very similar in its messiness to making sausage. It just got even uglier, since both the President and Congressional leadership will now have to, once again, work with their political opposition, (as will, of course, the Republican minority).

And while all Republicans are not unabashedly pro capitalist (just as many Democrats are non unabashedly anti-capitalistic), more Republicans in power are willing to state and act as if the capitalist system, with all its flaws, is better than any alternative. A pro-business voice in the United States will again have to be taken into consideration. As Senator-elect Brown said, “What made America great? Free markets, free enterprise, manufacturing, job creation. That’s how we’re gonna do it, not by enlarging government.” And the political appointees at the DOJ and FTC will need to take this voice into account.

There’s no doubt it will be a very interesting year here in the United States. While it’s hard to think of any surprise that would be greater than the one we just saw, I have no doubt there will by any number of surprises to come as the Obama administration and both political parties react to the tsunami that the voters of Massachusetts just sent their way.