By John Newman (Former attorney with the U.S. Department of Justice Antitrust Division)
Antitrust law has recently emerged as a critical issue among Democratic presidential contenders. Senator Elizabeth Warren threw down the gauntlet with her ambitious plan to overhaul antitrust law’s treatment of technology platforms and appoint enforcers who would break up tech giants such as Amazon, Google, and Facebook. Senator Amy Klobuchar quickly responded with her own call to investigate whether such breakups are warranted. Retweeting Warren, Representative Tulsi Gabbard promised to introduce similar legislation in the House of Representatives. Pressed for a response to Warren, South Bend Mayor Pete Buttigieg conceded that high levels of market concentration should “set off alarms.”
But every proposal to date—from Buttigieg’s comparatively tepid observation to Warren’s more sweeping plan—overlooks a key fact. At the end of the day, legal decisions are made by judges.
The new ideas being promoted by Democratic contenders are, to be sure, a breath of fresh air. Antitrust may seem an unlikely candidate for the spotlight, but its growing popular appeal reflects mounting concern over corporate power and consolidation. The U.S. antitrust community has long been insular and homogenized, its thinking dominated by the conservative Chicago School of law and economics. Today, we are left with a narrow, technocratic status quo that assumes markets usually work and antitrust enforcement will do more harm than good. Over time, this has contributed to a near-total lack of significant enforcement actions. Markets have become increasingly dominated by a few players, causing well-documented harms such as higher prices, lower quality, lower wages, and a less dynamic economy. Innovative proposals such as Warren’s have greatly expanded the realm of possible solutions—as policy wonks would put it, she has shifted the Overton window.