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Congress Should Exercise Caution as Antitrust Bills Gain Steam



Federal antitrust efforts are meant to maintain free markets, which bring with them robust innovation, low prices, and high quality. However, recent pushes to expand the reach of antitrust law threaten the U.S. economy and those that contribute to it. Overly aggressive antitrust enforcement can be harmful to both American businesses and workers, but Congress and the Federal Trade Commission (FTC) have sought to increase burdensome regulation and consequently harm economic efficiency.

On September 29, the U.S. House of Representatives passed a package of three antitrust bills on a bipartisan 242-184 vote. The package included the Merger Fee Filing and Modernization Act, which would increase the amount of fees charged by the FTC for companies looking to merge, making a standard business process more complex and costly. It would increase funding to the FTC, which has already faced accusations of politicization and a hostile antitrust agenda. Such antitrust legislation is increasingly aggressive to businesses, jeopardizing the consumer welfare standard and, in turn, the health of our free market economy.

The House also passed the State Antitrust Enforcement Venue Act, which would increase control for state attorneys general to decide which court hears their antitrust cases. It aims to target companies that move their lawsuits to states with more favorable jurisdictions. The third and final part of the package is the Foreign Merger Subsidy Disclosure Act, which would require federal disclosure of subsidies by foreign adversaries for companies looking to merge. These pieces of legislation highlight Congress’s increased efforts to expand antitrust enforcement, and will likely receive additional attention as it moves to the Senate.

Recently, concerns regarding the effects of antitrust law have also been brought up by the bipartisan Journalism Competition and Preservation Act, proposed by Sens. John Kennedy (R-LA) and Amy Klobuchar (D-MN). The bill would create an exemption in antitrust laws for news companies under a certain size to collectively negotiate payment with online content distributors that display their content.

Debates over this bill have led to discussion about the actual impacts of such an antitrust exemption. Sen. Ted Cruz (R-TX) has been vocal about the importance of addressing concerns about partisan censorship and free speech issues. During debate, he gave an example of the Biden White House asking Twitter to ban a journalist for “misinformation,” effectively  using the platform to censor on behalf of the federal government. During the Senate Judiciary Committee markup, Sen. Cruz added a provision to keep antitrust regulation in place in cases where content moderation becomes an issue. His amendment passed with a 11-10 party-line vote, but Sen. Klobuchar subsequently withdrew the bill.

This surprising outcome for the journalism bill highlights the opposing political motivations regarding federal antitrust policy. Even so, Sens. Cruz and Klobuchar were able to agree upon a revised amendment that clarifies censorship matters are outside the bill’s scope.

NTU has long advocated for a measured approach to antitrust enforcement, emphasizing the dangers it can pose to both taxpayers and overall economic efficiency. Going forward, Congress and the FTC should be careful to respect free market principles and limit overly aggressive antitrust enforcement.