In response to an inquiry from the House Judiciary Committee, Brookings Visiting Fellow and former Assistant Attorney General for Antitrust Bill Baer submitted a letter on May 19, 2020, to the Subcommittee on Antitrust, Commercial, and Administrative Law discussing the state of antitrust law in America. In the letter, Baer analyzes where enforcement has been successful and where it has failed to protect consumers and competition. Baer also offers recommendations to improve antitrust laws, enforcement policies, judicial interpretation, and more to support the economy.
Dear Chairman Cicilline and Ranking Member Sensenbrenner:
Thanks to you both and to the other members of the Subcommittee on Antitrust, Commercial and Administrative Law for the opportunity to submit comments concerning whether our existing antitrust laws, enforcement policies, judicial interpretation and funding are up to the challenges posed by competition in the digital marketplace and elsewhere in our economy.
By way of brief background, antitrust has been the principal focus of my career. On three different occasions I served in the U.S. antitrust enforcement agencies: from 1975 to 1980 in various positions at the Federal Trade Commission; from 1995 to 1999 as Director of the Bureau of Competition at the FTC; and from 2013 to 2017 at the Justice Department where I was Assistant Attorney General for Antitrust for 3-plus years and then Acting Associate Attorney General from April 2016 until January 2017. When not in public service I was a partner at Arnold & Porter in Washington, D.C. Since January of this year I have been a Visiting Fellow at the Brookings Institution.
I write from the perspective of someone privileged to have served on the front lines of antitrust enforcement. I have seen where enforcement has been successful and a force for good. I have also seen where antitrust, for reasons I will discuss, has fallen short and failed to protect consumers and competition as much as it can and should.
My submission makes four basic points: (1) to be effective and embraced by the courts, antitrust enforcement needs to be based on an analytically sound, fact-based framework; (2) but we cannot let the perfect be the enemy of the good, and many courts hold enforcement to an effective standard of proof that is unrealistic and inconsistent with the plain language of our antitrust statutes; (3) the antitrust agencies should be advocates for a more robust approach to enforcement, but if the courts are unwilling to step back from bias against the risk of over-enforcement, legislation may be the only way of resetting the balance; and (4) more resources are needed if antitrust enforcement is to fulfill its role as the economic cop on beat.