U.S. Senator Amy Klobuchar (D-MN) speaks during a Senate Justice Committee hearing titled “Breaking the News: Censorship, Suppression, and the 2020 Elections” on Facebook and Twitter on Capitol Hill in Washington, USA on November 17 , 2020.
Hannah McKay | Reuters
Senator Amy Klobuchar, D-Minn., On Thursday unveiled a comprehensive antitrust reform bill that is tough in her new role as Chair of the Senate Judiciary Subcommittee on Antitrust Law.
Klobuchar has been a frequent critic of what she and other lawmakers have viewed as lax enforcement of existing antitrust laws, and has called for tough action against some of the big technology companies. While it has introduced several bills reforming various aspects of antitrust law in the past, the “Act Reforming Competition and Antitrust Law” is a comprehensive proposal that calls for a major overhaul of enforcement standards. If enacted, it would mean a significantly higher risk for companies like Facebook and Google, which are already facing federal lawsuits, as well as any dominant company looking to acquire another company.
With this bill, Klobuchar is screwing her line on cartel reform and signaling that she will use her post to demand substantial changes to the status quo. Broadly, the bill aims to reform antitrust law in three ways: 1) resetting the standard for enforcement and shifting the burden of proof to dominant companies in merger cases; 2) Obligation of the agencies to regularly examine the markets and merger effects with the help of additional funds; and 3) to provide the antitrust authorities with new tools such as the imposition of civil sanctions.
In the House of Representatives, Antitrust Subcommittee Chairman David Cicilline, DR.I., has also called for major reforms during an investigation by Amazon, Apple, Facebook and Google. That investigation culminated last year in a nearly 450-page report on alleged corporate monopoly power and proposed reforms to restore competition in the digital marketplace.
While the Republicans in the House subcommittee did not fully endorse the Democrats’ sweeping proposals, they saw the market problems and the need for reform largely on an equal footing. That could give hope that Klobuchar’s proposals will be at least partially accepted.
Klobuchar’s draft law aims to strengthen the enforcement of antitrust law in the following ways:
- Raising the bar for dominant companies wishing to merge with other companies, including by shifting the burden of proof to merging parties.
- Adding a prohibition on “exclusive behavior” to the Clayton Act, which regulates mergers, in order to make it difficult for dominant companies to demonstrate that their mergers will not affect competition if they engage in such acts. Exclusive conduct would include acts that disadvantage current or potential competitors or that limit the competitiveness or incentive of competitors to compete.
- Approved $ 300 million to increase the Justice Department Antitrust and Federal Trade Commission annual budgets that enforce antitrust laws.
- Enable antitrust authorities to impose civil sanctions for violations of the Monopoly Act and the offense of exclusionary behavior created by the law, in addition to other remedies they can already seek, such as separations and injunctions.
- Creation of an independent competition attorney’s office within the FTC that can conduct market research to inform enforcement and raise consumer complaints.
- Encourage merged companies to inform the agencies of the outcome of their transactions and to investigate the impact of previous mergers.
- Extending whistleblower incentives to those who report potential civil law violations.
Klobuchar has blamed flawed court decisions for weakening the importance of existing antitrust laws, an opinion shared by members of both parties, including former President Donald Trump’s antitrust leader at the DOJ. Her bill aims to reset the standards for determining the existence of a breach, which will give both government enforcers and private complainants a greater chance to fight dominant corporations.
This could come in handy as the agencies adjust to some of the largest, deeply pocketed companies in the world. Federal agencies and state enforcers are already facing lawsuits against Facebook and Google that will take years to resolve if brought to justice. And enforcers have also been keeping an eye on Amazon and Apple, multiple outlets have reported. All companies have refused to engage in anti-competitive behavior.
In the meantime, these companies would probably not be surprised if they received an invitation to testify before the Klobuchar subcommittee this year.
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