Page 22 - CLT020121

22 ¦ FEBRUARY 1, 2021 NEWS

¦ From AN ANTITRUST on PAGE 21 reform in how the United States treats monopolies
For the Republicans, the push for antitrust re- and competition.”
form gained newfound momentum when their base To the extent the Republicans are hesitant about
expressed outrage over the way Big Tech titans ex- the sweeping reforms Democrats appear to be on
ercised their market power by banning users who the cusp of proposing, they might not be in any po-
violated their terms of service in the wake of the sition to stop them. Senate leaders Mitch McConnell
violence at the Capitol on Jan. 6. Indeed, more than and Chuck Schumer have now tentatively reached
a dozen new House Republicans recently wrote a power-sharing deal that would allow bills to ad-
Biden, expressing hope that they could work togeth- vance to the Senate floor even if they are tied during
er to “enforce our antitrust laws against emboldened committee votes. It is also conceivable (if unlikely)
technology monopolies.” that the Senate could nix the Republicans’ remain-
Biden’s focus also appears to have turned to anti- ing tool to stall votes—the filibuster.
trust: Just in the last week, he has been considering Even with the filibuster in place, Republicans
“creating a White House position focused on com- might be leery of filibustering a bill to reform the an-
petition policy and issues relating to antitrust.” titrust laws, particularly if the bill targets industries
Biden’s interest in antitrust is not or companies that are unpopular
fleeting. He has put forward a pro- with their base. Democrats may
posal focusing on competition in also be able to pull together the 10
the labor markets, hoping to “[e] Republican votes needed to over-
liminate non-compete clauses and come a filibuster, invoke cloture,
no-poaching agreements that hin- and ultimately take a bill to a vote.
der the ability of employees to seek Historically, Democrats Whatever the specifics of future
higher wages, better benefits, and have advocated for
working conditions by changing legislation, it is undeniable that
employers.” And he has surround- strengthening antitrust some antitrust reform is woefully
ed himself with advisers with laws. But there are signs overdue. The Sherman and Clay-
strong views on antitrust enforce- ton acts are more than a century
Republicans will also old. And Congress’s most recent
support reforms.

ment. Even Merrick Garland, piece of major antitrust legisla-
Biden’s pick to lead the Depart- tion—the Hart-Scott-Rodino
ment of Justice, taught antitrust Antitrust Improvements Act—was
law at Harvard and has published passed in 1976. To put that in con-
on the topic. text, 1976 was the year Steve Jobs
Just on Tuesday, moreover, the New York Times and Steve Wozniak founded Apple. The economy
reported that Sen. Amy Klobuchar plans to intro- and markets that exist today were unimaginable
duce a sweeping antitrust bill “with a particular eye then.
on tech” in the “coming weeks.” Such a bill would Biden’s first term presents a unique opportunity
be right in Klobuchar’s wheelhouse, as the incom- to run an update on the antitrust laws. Whether that
ing Democratic chairwoman of the Senate Judiciary update will turn into a total rewrite, however, re-
Subcommittee on Antitrust, Competition Policy mains to be seen.
and Consumer Rights. Over the years, she has in- ¦

troduced a number of antitrust bills, including bills Jennifer Fischell is an attorney at MoloLamken
to make it easier to challenge mergers and to deter with a practice focusing on complex civil
other anti-competitive abuses. She has previously litigation and appeals. Before joining the firm,
indicated interest in pursuing “an investigation of Fischell clerked on the U.S. Court of Appeals for
the online platform giants.” And she recently an- the Sixth Circuit and the U.S. District Court for
nounced she is writing a book that will “call for the Southern District of New York.

CONNECTICUT
Law Tribune