Everyone Wants to Get Tough on Antitrust Policy, but Not Really

[Commentary] The White House recently issued an executive order, supported by a report from the Council of Economic Advisers, discovering that monopoly is on the rise and directing federal agencies to look for ways to bolster competition and control specific anti-competitive abuses. The order, however, is all rather frustrating to those toiling in the regrettably dusty precincts of antitrust policy, especially coming from a president who so raised our hopes.

In his first presidential campaign, President Obama promised to direct his Administration “to reinvigorate antitrust enforcement,” since “antitrust is the American way to make capitalism work for consumers.” It would be frustrating enough that the initiative seems certain of fairly complete failure, for reasons backed by a hundred years of history and evidence. It is directed to sector-specific federal agencies, which by and large have no antitrust enforcement power and have almost always used their powers to keep competition at bay. Moreover, initiatives under the order will probably be piecemeal, small and easily evaded. Consider what apparently is the sole initiative the government has planned so far, a call on the Federal Communications Commission to regulate cable TV boxes. (A request to be made by that stalwart champion of the consumer interest, the Commerce Department.) Those boxes may be overpriced, but will controlling that one little thing really keep cable companies from making it up somewhere else? The Justice Department just recently approved another very big merger, Charter Communications’ acquisitions of Time Warner Cable and Bright House Networks, in a very concentrated and troubled industry. It was a move opposed by a whole coalition of consumer groups because it creates a national duopoly controlling 90 percent of high-speed broadband. In the end, this move keeps alive an old criticism of American competition policy. We all — across the political spectrum — are quite certain we want to have an antitrust law and to speak of it with due reverence. The one thing most of us really don’t want to do is actually use it. Politically, it would have been better for the president’s legacy just to have continued quietly doing nothing than to come out and admit it.

[Chris Sagers is James A. Thomas Distinguished Professor of Law at Cleveland State University.]