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LCII Policy Brief the Antitrust Policy of America's Next President: Clinton V

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LCII Policy Brief the Antitrust Policy of America's Next President: Clinton V LCII Policy Brief Issue 2016/3 October 2016 The Antitrust Policy of America’s Next President: Clinton v. Trump With the US presidential elections fast Empirical evidence linking the party in approaching, competition scholars and power to antitrust outcomes has proved practitioners naturally question how the elusive.2 outcome might affect the US antitrust landscape. This policy brief offers some insights by analyzing both Hillary Clinton Hillary Clinton and Donald Trump’s campaign platforms. In office Because these broad policy outlines do not touch upon antitrust issues – or only do so Hillary Clinton has vast political experience. in relatively vague terms – this brief goes She has occupied no less than three high- one step further. It systematically looks at level political positions: First Lady, Senator each candidate’s background, public and Secretary of State. For obvious reasons, declarations, running-mate and campaign her time serving as First Lady, and that as advisors, and potential picks for the vacant Secretary of State offer little insights as to seat on the Supreme Court. her antitrust views. During her time on the Senate floor, Clinton was not very active on The brief shows that antitrust law is a questions of economic policy. Only one out relatively peripheral issue in both of the 417 bills she sponsored touched upon candidates’ programs. At the same time, the antitrust matters.3 The bill, which was never evidence identified in this brief suggests enacted into law, proposed to limit the that, if elected, Hillary Clinton would award of government contracts to firms with pursue a more expansive antitrust policy poor records of integrity and business ethics, than Donald Trump. of which antitrust violations were a 4 These findings are in line with the idea that component. democrat leaders pursue a more Public declarations interventionist agenda than their republican counterparts.1 Whether the successful On the campaign trail, Clinton has offered a candidate will effectively deliver upon his detailed roadmap of her economic policy, or her policy positions is another matter. which includes the type of antitrust The Antitrust Policy of America’s Next President enforcement she would push for.5 In many Running-mate and advisors ways, the roadmap is close in spirit to the Both Clinton’s running-mate and her close policy that is currently pursued in the circle share her view of a more expansive European Union (“EU”). It is also antitrust enforcement. Though Time Kaine reminiscent of the speech given by has not pronounced himself on the topic of Elizabeth Warren earlier this year.6 antitrust, his record suggests that his views Clinton’s plan places consumers and SMEs are to the center of the democrat party.11 A at the forefront of antitrust policy, and red-state democrat, Tim Kaine is broadly displays a certain suspicion of big business. supportive of Free Trade.12 However, his Some of its provisions are particularly political areas of expertise suggest he would noteworthy.7 not take on a great role in US antitrust First and foremost, her policy tackles the in policy. An overview of the bills sponsored vogue issue of “excess concentration” in US by Kaine shows he has little experience in industries.8 To address this, it envisages a matters of economic policy.13 stricter enforcement of One man who might be merger provisions. It Hillary Clinton: central to Clinton’s also contemplates policy is Alec Ross.14 retrospective reviews of ü Plans to reduce industry One of Clinton’s tech consummated mergers. concentration ü Will appoint “strong policy advisors, Ross is A second, important leadership” to head the the author of “The measure is the promise antitrust agencies Industries of the to appoint “strong ü Vows to fight “unjustified” Future”, a best-selling 2 leadership” to head the price increases book on the policy antitrust agencies. implications of present During the run-up to the campaign, Clinton and future technological advances.15 Though praised Tom Wheeler, the chairman of the the book is light on actual policy Federal Communications Commission recommendations, it paints Silicon Valley (“FCC”), for his work on net neutrality.9 companies, and Google in particular, in a She even intimated that further legislation very positive light. This suggests a greater on the issue might be necessary. One can latitude than what the Clinton campaign’s only assume that this is what she has in platform might hint to at first sight. mind for the antitrust agencies: a leader in Clinton has two main economic advisors: the Wheeler mold with a commitment to Michael Shapiro and Michael Schmidt.16 muscled intervention, even in controversial Having recently graduated from Yale law cases. school, both are relative novices and, Finally, Clinton’s policy note takes a strong without any serious publications to their stance on so-called “unjustified” price name, one can only guess what their increases in the pharmaceutical sector, perspective on economics might be. citing the EpiPen price hike as an example.10 Clinton’s campaign has also been associated The roadmap suggests drastic solutions such with a number of external advisers, some of as the reimportation of drugs sold abroad which are better known to the antitrust and fines. Such measures, if they ever community. The most famous name on the became a reality, could significantly impact list is probably Joseph Stiglitz17. Though he investments in healthcare innovations. received the Nobel Prize for his work on the economics of information – in particular information asymmetries – and worked on LCII Policy Briefs are published quarterly. They can be downloaded at www.lcii.eu The Antitrust Policy of America’s Next President industrial organization issues18, Stiglitz is has she mentioned any other potential now widely associated with a movement candidates. That said, during her second against free markets and laissez faire debate with Donald Trump, Clinton detailed capitalism. He is also critical of the US her vision on an ideal candidate.29 The patent system.19 Another advisor is Alan picture that she painted – someone with a Krueger. Krueger recently co-authored a diverse background and “real-life” paper on capacity utilization in the taxi experience – hardly matches Garland’s sector – i.e. the amount of time during profile. which a vehicle is carrying passengers rather than looking for them – showing that Uber achieves better outcomes than regular Donald Trump 20 taxis. This suggests that Krueger is Business career sensitive to the efficiency gains brought about by Uber and the sharing economy as a During his long and media-bathed business 21 career, Donald Trump had three brushes whole. Clinton’s other economic advisers , 30 notably Alan Blinder22, Simon Johnson23 with antitrust law. In the first of these and Heather Boushey24 are all on the left- cases, Trump was charged with violating side of the economics profession. Hart-Scott-Rodino merger notification requirements. Trump failed to notify the A final point of note are Hillary Clinton’s acquisition of shares in two gaming 25 alleged ties to seed giant Monsanto. With a companies, acquired in the name of his Bayer-Monsanto merger unlikely to be banker, Bear Stearns.31 Trump ultimately cleared before the end of the Obama settled the case and agreed to pay a penalty 26 administration , the next President might of $750.000. 3 have some influence over the outcome of the case. Especially if the alleged ties are The second case was brought by the USFL – true, the merger will provide the ideal test a failed football league which was once a for Clinton’s commitment to fighting rival to the vastly more successful NFL – of concentration in US industries. which Donald Trump owned one of the teams. Allegedly trying to engineer a merger Supreme Court picks between the two leagues, the USLF and By filling the vacant seat on the Supreme some of its teams with Trump as their figurehead brought a section 2 suit against Court, the next President could significantly 32 influence US antitrust law. Merrick the NFL. The suit notably argued that the Garland’s name has been put forward by the NFL’s contracts with three major TV Obama administration. Garland has networks constituted anticompetitive significant experience in the field of monopolization, and that the NFL was antitrust. He authored articles27 on the attempting to co-opt owners and players subject, taught it at Harvard Law School, from its rival franchise. Though the jury and decided a number of cases in this area.28 ultimately found in favor of the USFL on Though his early scholarship seems to be the latter issues, it only awarded symbolic relatively pro-government, his later damages, judging that the USFL’s failure decisions cast him in a much more moderate was not a result of the NFL’s actions. light. Finally, Trump found himself on the other As things stand, Garland’s candidacy is akin side of a monopolization suit when a rival, to Schrodinger’s cat. Clinton has neither Sands Resorts, filed a complaint against one backed him as her potential nominee, nor of Trump’s casino/hotel resorts in Atlantic City.33 Sands Resorts had initially struck a LCII Policy Briefs are published quarterly. They can be downloaded at www.lcii.eu The Antitrust Policy of America’s Next President deal to purchase development land next to There is nothing to suggest that his position one of Trump’s resorts. Due to various has changed since then. A trump victory setbacks the deal fell through and Trump might thus make Tom Wheeler’s current was able to swoop in. Trump eventually position as chairman of the FCC untenable. prevailed in Court.34 Another point of note is Trump’s opposition to Obamacare which, unsurprisingly, he It is unclear how these antitrust experiences proposes to repeal.
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