Tulsa Law Review Volume 17 Issue 4 Summer 1982 The Federal Trade Commission and Congressional Oversight of Antitrust Enforcement William E. Kovacic Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation William E. Kovacic, The Federal Trade Commission and Congressional Oversight of Antitrust Enforcement, 17 Tulsa L. J. 587 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol17/iss4/1 This Article is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Kovacic: The Federal Trade Commission and Congressional Oversight of Antit TULSA LAW JOURNAL Volume 17 1982 Number 4 THE FEDERAL TRADE COMMISSION AND CONGRESSIONAL OVERSIGHT OF ANTITRUST ENFORCEMENT* William E. Kovacic** I. INTRODUCTION ............................................ 589 II. THE 1969 REPORT OF THE AMERICAN BAR ASSOCIATION COMMISSION TO STUDY THE FEDERAL TRADE COMMISSION .............................................. 592 A. Findings and Recommendations ...................... 593 1. General Criticism ................................. 594 2. Antitrust .......................................... 596 3. Conclusion ........................................ 599 B. ExternalInfluences on FTC Performance.............. 602 1. Stature of Competition Policy ..................... 602 2. Federal Judiciary ................................. 611 3. President .......................................... 617 4. Congress .......................................... 623 C. Implicationsfor FTC Competition Programs .......... 628 * The opinions expressed in this Article are solely those of the author and do not express the views of the Bureau of Competition, the Commission, or any individual Commissioner. The author is deeply grateful to Neil W. Averitt, Donald S. Clark, Kenneth M. Davidson, Kathryn M. Fenton, Albert A. Foer, David P. Frankel, James D. Hurwitz, John B. Kirkwood, Robert H. Lande, Thomas K. McCraw, Toby J. McIntosh, Ross D. Petty, Michael Pertschuk, and Barry R. Weingast for their useful comments. I also wish to thank Deborah L. Hebb for her exceptional secretarial assistance. ** Attorney, Planning Office, Bureau of Competition, Federal Trade Commission. A.B., 1974, Princeton University, J.D., 1978, Columbia University. Published by TU Law Digital Commons, 1981 1 Tulsa Law Review, Vol. 17 [1981], Iss. 4, Art. 1 588 TULSA LAWJOULM4L [Vol. 17:587 III. THE FEDERAL TRADE COMMISSION'S COMPETITION PROGRAMS: 1969-1980 .................................... 630 A. 1969-1976 ............................................ 632 1. Congressional Guidance .......................... 632 2. Commission Response ............................ 643 B. 1977-1980 ............................................ 652 1. Congressional Guidance .......................... 654 2. Commission Response ............................ 659 3. Proposed Limitations ............................. 665 IV. CONCLUSION .............................................. 668 https://digitalcommons.law.utulsa.edu/tlr/vol17/iss4/1 2 Kovacic: The Federal Trade Commission and Congressional Oversight of Antit 19821 FTC 0 VERSIGHT/ANTITR UST ENFORCEMENT 589 The FTC is a "passel of ideologues who are hostile to the business system, to the free enterprise system, and who sit down there and invent theories that justify more meddling and interference in the economy."' -David Stockman, Director, Office of Management and Budget I. INTRODUCTION For the second time in three years, Congress is contemplating seri- ous changes in the law enforcement role of the Federal Trade Commis- sion (FTC). Following months of intense, widely-publicized debate, Congress in 1980 curtailed the agency's statutory authority, restricted several ongoing programs, and authorized the agency's operations through September 30, 1982, with promises of unrelenting scrutiny.2 Within the past year, several members of Congress have introduced bills to limit further the Commission's powers.3 As the agency's appro- priations and authorization measures come before the Congress, these proposals are likely to receive serious attention.4 An important articulated basis for the 1980 legislation and current limiting measures is the congressional perception that the Commission has contradicted the legislature's policy preferences in selecting its law enforcement programs. Congressman William Frenzel pungently cap- 1. Chicago Tribune, Feb. 23, 1981, at A-I, col. 2-3. Budget Director Stockman's remark came soon after the Office of Management and Budget (OMB) had recommended budget reduc- tions that would eliminate the FTC's Bureau of Competition, the agency's antitrust enforcement division. See FTC Commissioners Foresee Budget Cuts 4s Instant Doom for Competition Pro- grams, [Jan.-June] ANTITRUST & TRADE REG. REP. (BNA) No. 1002, at A-1 (Feb. 19, 1981). The OMB withdrew this proposal in the following month. See Budget Cuts Won't Scrap FTC's Compe- tition Mission, Jan.-June] ANTTRUST & TRADE REG. REP. (BNA) No. 1004, at A-4 (Mar. 5, 1981). See generally Impact of OMB-ProposedBudget Cuts For the Federal Trade Commission " HearingsBefore a Subcomna ofthe House Comm on Government Operations, 97th Cong., 1st Sess. (1981) [hereinafter cited as House 1981 Government OperationsHearings]. 2. Federal Trade Comm'n Improvements Act of 1980, Pub. L. No. 96-252, 94 Stat. 374 (codified as amended in scattered sections of 15 U.S.C.). For a discussion of the origins and content of the 1980 statute, see infra text accompanying notes 429-43. 3. See, eg., S.1984, 97th Cong., 1st Sess., 127 CONG. REc.,S15,685 (daily ed. Dec. 16, 1981). Senators McClure and Melcher introduced S.1984 which would (1) bar the FTC from interven- ing in the affairs of any state-regulated profession; (2) require the FTC to bring all of its cases in federal district court; (3) direct the Commission to reimburse private parties for the cost of re- sponding to its subpoenas and other information requests; and (4) limit substantially the scope of the agency's mandate to address "unfair methods of competition" and "unfair or deceptive acts or practices" under § 5 of the Federal Trade Commission Act. Id; see also H.R. 3722, 97th Cong., IstSess., 127 CONG. REc. H2489 (daily ed. May 28, 1981) (bill with over 130 co-sponsors placing moratorium on FTC actions affecting the professions). 4. See Senate Unit Votes Strict FTC Curbs, Wash. Post, May 12, 1982, at Al, col. 1; Congress threatens to extract some of the FTC's sharpestfangs, 14 NAT'L J. 535 (1982). Published by TU Law Digital Commons, 1981 3 Tulsa Law Review, Vol. 17 [1981], Iss. 4, Art. 1 TULSA LAW JOURTAL [Vol. 17:587 tured this view in 1979 as Congress debated bills to restrict the agency's activities: [T]he FTC is. .a king-sized cancer on our economy. It has undoubtably added more unnecessary costs on Ameri- can consumers who it is charged with protecting, than any other half dozen agencies combined. It is bad enough to be counterproductive and therefore highly inflationary, but the FTC compounds its sins by gener- ally ignoring the intent of the laws, and writing its own laws whenever the whimsey strikes it. Ignoring Congress can be a virtue, but the FTC's exces- sive nose-thumbing at the legislative branch has become leg- end. In short, the FTC has made itself into virulent political and economic pestilence, insulated from the people and their representatives, and accountable to no influence except its own caprice. On my most charitable days, I think repealing the FTC would be a good idea. Whenever I pick up the paper and read of another atrocity wrought by it, I think more hideous thoughts about making the punishment fit the crime. For in- stance, every staff member and every Commission member should spend 20 years at hard labor filling in their own asi- nine forms. And then they should spend the rest of their lives resubmitting the same material upside down and backward. 5 The Commission, Representative Frenzel concluded, was "a rogue agency gone insane."6 Congress' acute interest in the FTC's policies comes roughly a dec- ade after the last comparable congressional assessment of the FTC's performance. In the late 1960's and early 1970's several committees with appropriations or oversight responsibilities extensively analyzed the Commission's work and recommended a fundamental reorientation 5. 125 CONG. REc. HI0,757-58 (daily ed. Nov. 14, 1979) (statement of Rep. Frenzel). Dur- ing debate over the 1980 Improvements Act, supra note 2, the principal Senate sponsors of the Act also expressed the view that the FTC had neglected to heed congressional policy guidance. See 126 CONG. REc. S5676 (daily ed. May 21, 1980) (remarks of Sen. Ford); id at S5681 (remarks of Sen. Cannon). 6. Id at H10,758. See also, e.g., 121 CONG. REc. S15,687 (daily ed. Dec. 16, 1981) (Sen. McClure: "In recent years, we have seen unprecedented efforts by the Commission to expand its activities into areas well beyond those charted by Congress. It is time for Congress to curb these actions."); House 1981 Government OperationsHearings, supra note 1, at 168 (OMB Director Stockman: "[I]nrecent years the FTC has served the public interest very poorly, in major part because it has sought to expand its power and influence beyond that envisioned by Congress.") https://digitalcommons.law.utulsa.edu/tlr/vol17/iss4/1 4 Kovacic: The Federal Trade Commission and