Though presumptive Democratic presidential nominee Joe Biden had a center-left record on legal issues during his Senate career, some of his party's more liberal voices have been influencing his view on antitrust policies.

The former vice president hasn't touched on antitrust in a general election speech. But the joint economic task force between his campaign and one-time rival Senator Bernie Sanders, an Independent from Vermont, promotes aggressive enforcement and adopts some of the language favored by those on the party's left.

"Democrats are concerned about the increase in mega-mergers and corporate concentration across a wide range of industries, from hospitals and pharmaceutical companies to agribusiness and retail chains," according to a 110-page report from the task force.

"We will direct federal regulators to review a subset of the mergers and acquisitions that have taken place since President Trump took office, prioritizing the pharmaceutical, healthcare and agricultural industries, to assess whether any have increased market concentration, raised consumer prices, demonstrably harmed workers," the report states.

The task force also calls for future antitrust enforcers to consider the impact on job losses, racial equity and the environment when reviewing mergers.

Representative Karen Bass, a California Democrat and chair of the Congressional Black Caucus, and Sara Nelson, international president of the Association of Flight Attendants, co-chair the task force.

The Biden campaign didn't respond to e-mails from FTCWatch seeking additional comment on its antitrust policies, nor did former Federal Trade Commission member and Biden adviser Terrell McSweeny, who has counseled him on these topics.

The task force's report alarmed some centrist Democrats who have been involved in antitrust enforcement.

"I worry that this may lead to bringing cases just to bring cases, even if there isn't a good justification," said one ex-enforcer, who requested anonymity to speak more candidly. "A body of law needs a set of guiding principles or it becomes a tool of political agendas. The goal of antitrust is to protect markets and that means there will be short-term losses."

While the shift is disturbing, it reflects the changes in the Democratic Party's composition, according to another former enforcer who doesn't see the pendulum swinging back any time soon.

In May, a group of former Democratic antitrust officials wrote a letter to the House Judiciary Committee, which is investigating Big Tech platforms, calling for changes in antitrust law.

The letter included a proposal to have Congress codify that in an antitrust case, direct proof of anticompetitive effects can satisfy the plaintiff's initial burden without need for circumstantial proof. (See FTCWatch, No. 983, May 18, 2020.)

Biden wasn't especially active on antitrust matters while in the Senate, even though he was a member of the Judiciary Committee throughout his tenure and chaired the panel from 1987 to 1995. (See FTCWatch, No. 980, March 30, 2020.)  

He didn't talk about antitrust much during the campaign for the nomination other than opposing so-called no poach agreements and saying the government needs to pay more attention to antitrust enforcement. Biden also said he wouldn't be opposed to breaking up Facebook.

Senator Elizabeth Warren, a Massachusetts Democrat who was another Biden opponent for president, has influenced the campaign's thinking. She has been vocal on antitrust matters throughout her time in office. She criticized the Obama administration for being insufficiently aggressive in its enforcement. (See FTCWatch, No. 899, July 15, 2016.)

FTC Commissioner Rohit Chopra, who is one of Warren's proteges and worked with her at the Consumer Financial Protection Bureau, has criticized the FTC for not being tough enough in trust-busting.

Warren has also been mentioned as a possible running mate for Biden. But it isn't clear how high she is on the campaign's list. One possible liability for her is that Massachusetts has a Republican governor, Charlie Baker. He would presumably name a Republican to succeed Warren in the Senate if she left before her term expires and this would weaken the Democrats' strength in that chamber.

When she was a presidential candidate, Warren called for unwinding certain mergers such as Bayer-Monsanto and breaking up Big Tech companies such as Facebook and Google.

Trump hasn't mentioned antitrust enforcement in any of his reelection campaign speeches. But the Department of Justice and FTC recently sent a joint report to Congress highlighting their uptick in enforcement actions.

"Second requests" were issued for 3 percent of all merger notification filings during the fiscal year that ended last September, the highest rate in three years. (See FTCWatch, No. 987, July 13, 2020.)

References:
https://joebiden.com/wp-content/uploads/2020/07/UNITY-TASK-FORCE-RECOMMENDATIONS.pdf
https://www.ftc.gov/system/files/documents/reports/federal-trade-commission-bureau-competition-department-justice-antitrust-division-hart-scott-rodino/p110014hsrannualreportfy2019.pdf
https://www.justice.gov/atr/file/788426/download
https://www.ftc.gov/competition-enforcement-database