- The Washington Times - Thursday, February 4, 2021

Sen. Amy Klobuchar unveiled a plan to overhaul the nation’s antitrust laws by lowering the standards used to curb dominant forces’ power over the market and increasing the funding for enforcers to go after alleged monopolies.

The Minnesota Democrat now in charge of a key antitrust panel in the Senate is using the “Competition and Antitrust Law Enforcement Reform Act” to put on notice both Big Tech companies and much of corporate America.

“The civil remedies currently available to cure violations of the Sherman Antitrust Act, including injunctions, equitable monetary relief, and private damages, have not proven sufficient, on their own, to deter anticompetitive conduct,” reads Ms. Klobuchar’s proposed bill. “In some cases, effective deterrence requires the imposition of civil penalties, alone or in combination with existing remedies, including structural relief, behavioral relief, private damages, and equitable monetary relief, including disgorgement and restitution.”

Ms. Klobuchar’s legislation argues that federal antitrust enforcement budgets have failed to keep pace with economic growth. Her legislation aims to make dominant companies show that their conduct does not present an “appreciable risk of harming competition.”

“Let me be clear: I don’t want to punish success,” Ms. Klobuchar said Thursday on CNBC. “When we talk about structural remedies and breaking things up, those companies would then be unleashed to do even more. And my concern is that, while we’re seeing really good things happening, we also know there’s really bad things happening.”

Some liberal activists are cautiously optimistic about Ms. Klobuchar’s proposal. The American Economic Liberties Project cheered Ms. Klobuchar’s enthusiasm for new antitrust action but also raised concerns that she did not pursue aggressive enough changes.

“In this initial legislative package, we are particularly supportive of the inclusion of bright-line rules, such as the structural presumption that would effectively bar very large corporations from engaging in [mergers and acquisitions] activity,” Sarah Miller, American Economic Liberties Project executive director, said in a statement.

“We have concerns, however, about aspects of the legislation that retain the ‘rule of reason’ framework that grants judges wide discretion to arbitrarily or narrowly interpret antitrust law, and look forward to continuing to engage on that longer-term challenge.” Ms. Miller said.

Ms. Klobuchar’s proposal rankled some conservatives, who view it as overly broad.
Jennifer Huddleston, director of technology and innovation policy at the conservative American Action Forum, said that she was concerned by the proposal’s decision to let regulators begin antitrust action without defining the market at issue.

Ms. Klobuchar’s legislation proposed that neither the Federal Trade Commission nor courts need to determine what a relevant market is before evaluating evidence in an antitrust case or to determine liability.

“Market definition is a key disputed element in many antitrust cases, particularly in tech,” said Ms. Huddleston on Twitter. “It is also an important element to the accusations of market dominance. Shouldn’t you know what market you’re accused of dominating[?]”

Ms. Klobuchar, however, may find Republican lawmakers willing to work with her on the antitrust proposal. Sen. Josh Hawley, Missouri Republican, introduced on Wednesday an amendment to a proposed budget resolution that seeks to prevent mergers and acquisitions by various Big Tech companies.

While Mr. Hawley’s amendment does not expressly identify the Big Tech titans he is seeking to smash, he identified “Big Tech robber barons” at Amazon and Google in a statement promoting his amendment. 

• Ryan Lovelace can be reached at rlovelace@washingtontimes.com.

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