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Antitrust policy wasn’t a priority for Biden before hitting campaign trail

By Claude Marx

Published on March 30, 2020 in Issue 980

During his 36 years on the Senate Judiciary Committee, likely Democratic presidential nominee Joe Biden was an active legislator on a range of issues including civil rights, women’s rights, judicial confirmations and national security law. But when it came to matters of antitrust policy, not so much.

Biden served on the panel from when he joined the chamber as the junior senator from Delaware in 1973 until he left it in 2009 to become vice president under President Barack Obama. He never served on the subcommittee that dealt with antitrust issues. He was chairman of the full committee from 1987 to 1995, and the panel didn’t report out any major antitrust bills during that time.

“Antitrust just wasn’t a priority for him. I can’t remember any positions he took on it,” Seth Bloom, the top Democratic staff member on the antitrust subcommittee during much of the time from 1999 to 2008, told FTCWatch.

Bloom recalled Biden was extremely hands-on when he cared about and worked on a subject. The presidential contender was a quick study on other subjects when they came up for a debate or vote.

During that time, depending on which party controlled the Senate, the subcommittee chairmanship alternated between Senator Herb Kohl, a Wisconsin Democrat, and Senator Mike DeWine, an Ohio Republican. 

Bloom said Biden and his staff tended to defer to Kohl and the subcommittee staff on antitrust matters.

Congress dealt with a big antitrust issue fairly early in Biden’s career in the Senate. In 1976, Congress passed the Hart-Scott-Rodino Act, amending the Clayton Act to set up pre-merger notification requirements for companies to file with the Justice Department and the Federal Trade Commission. There is no record of Biden making any comments on the legislation, which he voted for.

The only record of his active involvement in an antitrust bill came in 1979 when he was one of two Democrats who voted with Republicans to oppose a bill by then-Senate Judiciary Committee Chairman Edward Kennedy that would have reversed the Supreme Court’s 1977 decision in Illinois Brick, which prohibits indirect purchasers from recovering antitrust damages. The bill also contained a provision to deny standing to foreign governments to sue under US antitrust laws unless the country had antitrust laws of its own.

The New York Times described Kennedy, who was the senior senator from Massachusetts, as being “vexed” by Biden’s position, especially since Biden had backed a similar bill the previous year. Biden later said he only wanted to move the legislation and “I never was committed to the bill,” he told the newspaper.

The bill passed the committee but never came up for a vote on the Senate floor.

During Biden’s subsequent years on the panel, Congress passed numerous antitrust bills, including measures updating the thresholds under Hart-Scott-Rodino and a bill giving the Department of Justice the power to wiretap suspects in criminal antitrust cases.

In 2004, Congress approved a rider to an unrelated pensions bill that granted an exemption to antitrust laws for the National Resident Matching Program and its participating hospitals. Biden voted for all those bills, too, but there are no known records of any comments he made about them.

Because many businesses are incorporated in his home state of Delaware, Biden’s voting record was more supportive of business interests than many other Democrats. He voted with the positions of the US Chamber of Commerce 36 percent of the time in 2008, his last year in the Senate.

During the current presidential campaign, Biden has been less vocal on antitrust matters than his sole remaining opponent, Senator Bernie Sanders of Vermont, and two of his former opponents, Senators Amy Klobuchar of Minnesota and Elizabeth Warren of Massachusetts, all of whom have talked about the issue a great deal.

But when Biden has spoken about antitrust, he has called for more enforcement.

In a 2019 interview with the Associated Press, Biden said he would be open to breaking up Facebook. “I don’t think we spend nearly enough time focusing on antitrust measures. And the truth of the matter is, I think it’s something we should take a really hard look at,” he added.

The campaign’s statement on rural policy said farmers and ranchers are hurt by increased concentration in areas such as seeds, and a Biden administration would be more aggressive in enforcing the Sherman Act, the Clayton Act and the Packers and Stockyards Act (see Chopra, others blast proposed change to agriculture rule by Kirk Victor).

In a statement on strengthening the efforts of organizing workers, collective bargaining and unions, the campaign expressed support for eliminating non-compete clauses and no-poach agreements because they “hinder the ability of employees to seek higher wages, better benefits, and working conditions by changing employers.”

The Biden campaign didn't respond to repeated requests for additional comments on his views about antitrust.

Bloom predicted if he is elected, Biden will defer to the FTC chairman and assistant attorney general for antitrust, and won’t have a pre-set agenda.

He said Biden’s enforcement strategy on antitrust “will be similar to that of President Obama, though keeping in mind that the temperature has been raised on the subject.”

Former FTC member Terrell McSweeny, who was an aide to Biden in the Senate and when he was vice president, has been mentioned as a possible FTC chair should he win. McSweeny, who declined an interview request, remains close to Biden. When she was sworn in at the agency on April 28, 2014, Biden administered the oath.