Time to get Trump’s new antitrust cop on the beat
This past week many of us watched the televised spectacle of the NBA draft. We saw teams willing to pay millions of dollars for young talent with the hope of changing their fortunes and filling the stands. But imagine if one of the top draft picks, someone whose talents were needed by a team and who was ready to play, had to sit on the sidelines for several months after the new season started. Would that be right? Would that make sense? Of course not.
But that’s what’s going on now as the full Senate has yet to take action to approve President Trump’s nominee to head the Antitrust Division of the Department of Justice, Makan Delrahim.
{mosads}Let’s make it clear what is at stake by the delay. The Antitrust Division is the nation’s most important antitrust enforcer. Its role — protecting consumers from cartels, anticompetitive mergers and exclusionary conduct — is essential to making markets work. At a time when markets are increasingly concentrated and companies in many different sectors are seeking to combine, this enforcement is greatly needed.
That protection is not enhanced by having your main antitrust cop on the sidelines.. In the midst of some of the biggest political fights in history, the Senate has neglected to confirm the new head of the Antitrust Division. Delrahim is not controversial and is regarded by both Republicans and Democrats to be perfect for the job. He has a strong reputation as a pragmatist with real world experience to guide the tough enforcement decisions the division faces.
In the late 1990s he worked as council to the Senate Judiciary Committee under Sen. Orrin Hatch (R-Utah) and from 2003-2005 during the Bush administration he was a Deputy Assistant Attorney General. He has the grit and experience to be the thoughtful leader of this essential force to enforce our competition laws. Not surprisingly he was approved by the Senate Judiciary Committee in a near unanimous vote.
Those who support effective enforcement couldn’t ask for a better choice. The selection of Delrahim shows there will be no disruption of the Antitrust Division’s critical and nonpartisan work. He knows the importance of competition in markets critical to economic growth, and his experience in high technology, media and healthcare ensures he is well equipped for this position. Delrahim will be a steady captain to guide the division as it continues an already effective course, while avoiding storms and reefs that could become setbacks in the work of the division.
Antitrust enforcement is a bipartisan endeavor. The Senate Subcommittee on Antitrust, Competition Policy, and Consumer Rights, led by Sens. Mike Lee (R-Utah) and Amy Klobuchar (D-Minn.), is one of the few remaining bastions of cooperation. Delrahim does not buck this trend, and his confirmation should not cause progressives sleepless nights. On the contrary, progressives should feel relieved that the Antitrust Division will be led by a qualified and seasoned antitrust lawyer.
Antitrust enforcement will face new challenges under the current administration, especially in high-tech industries in which navigating the challenging battles between intellectual property and competition concerns are so thorny and complex. Delrahim has the expertise necessary to address these tough issues. As a member of the Antitrust Modernization Commission, he helped make crucial recommendations to Congress especially in the area of interactions between antitrust and patent laws. Given the rapidly changing technology sector and its competition issues, Delrahim’s experience makes him better suited to judge which actions are truly anticompetitive and which actions are neutral or helpful to consumers.
Merger enforcement is one of the most important issues facing the Antitrust Division. In recent years the Obama administration took an aggressive stance in blocking harmful mergers and had an excellent record of winning cases. It successfully challenged the Anthem/Cigna and Aetna/Humana proposed mergers. The Antitrust Division’s criminal enforcement program has been active too: its work has recently led to the four largest corporate fines ever levied in criminal antitrust cases.
Just as the 1979 Los Angeles Lakers needed Magic Johnson as its leader as soon as he was drafted, the division needs a strong leader to guide its vital mission. It’s time for the Senate to move promptly and confirm Delrahim.
David Balto is an antitrust attorney based in Washington,D.C.. He previously served as policy director at the Federal Trade Commission and as an attorney in the Justice Department’s Antitrust Division. He is an expert in antitrust, consumer protection, financial services, intellectual property and healthcare competition.
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