Nov 18 2020
Today I am introducing the One Agency Act—a bill to put all federal antitrust enforcement under one roof. For over a century, enforcement of the antitrust laws has been divided between the Department of Justice and the Federal Trade Commission – more than enough time to see that this arrangement does not work.
No one would intentionally design the system we have today. Even the DOJ and FTC, when assisting other nations in setting up their own competition authorities, to my knowledge have never advocated for creating two separate enforcers.
Strong, effective, and efficient antitrust enforcement is essential to maintaining free markets and a protecting consumers. But the status quo of divided law enforcement undermines these objectives.
Currently, DOJ and FTC work under an arrangement in which each agency must get “clearance” from the other agency before opening an investigation. This regularly leads to inter-agency turf battles as lawyers from each side fight over which agency should get the case. One significant matter was literally decided by a coin toss.
Every year government lawyers spend hundreds of hours managing these fights, wasting taxpayer money and delaying enforcement of the antitrust laws that protect American consumers. This is no way to run a government.
When they are not fighting, DOJ and FTC engage in their own form of market allocation, assigning certain industries to each agency. For example, most healthcare cases go to the FTC, while energy cases go to DOJ. This avoids waste, but it also creates the risk of antitrust enforcement varying between industries. The strength of antitrust enforcement should not hinge on a coin toss or a backroom deal.
The recent case against Qualcomm is the clearest example of the potential for conflicting enforcement policy. After FTC won at trial, DOJ supported Qualcomm in its successful appeal. Two federal agencies, tasked with enforcing the same laws on behalf of the federal government, argued against each other in court. If that isn’t the definition of a broken system, I don’t know what is.
The One Agency Act will solve these problems by moving all antitrust enforcement to the Department of Justice. DOJ is more politically accountable to voters and it is the only agency that can oversee criminal cases. This Act will make our antitrust enforcers stronger and more effective, eliminate wasteful spending and delays, and ensure the federal government speaks with a single, consistent voice on antitrust policy. This is an obvious, good-government solution that would be a win for consumers and the economy.
Op-ed originally published by the Wall Street Journal