What Will Antitrust Policy in 2020 Look Like?
This year is a big election year, and antitrust has proven to be a surprisingly hot topic that could become a regular feature on the campaign trail. This likely means lots of antitrust policy discussion, but not necessarily technocratic antitrust discussion. These discussions will be dominated by political needs, and will focus on what antitrust should look like rather than what it currently is.
Antitrust policy discussions will also need to be simplified for non-experts. Antitrust policy is, at its core, a very simple idea. It’s about supporting competition by policing monopolistic and collusive practices. However, much of our modern thinking about antitrust takes into account the impact of counterintuitive results and unintentional consequences from under- or over-enforcement. These are harder to explain, they had to be learned over years of lessons from enforcement and advances in economic thinking. I expect that little of this nuance will come through in political discussions about antitrust. However, this simplified conversation will make it easier for what CCIA President Matt Schruers calls “swampetition”, or attempting to beat rivals through political influence rather than through the marketplace. We’ve already seen some evidence of this.
That is not to say that antitrust policy in 2020 will be bad, much can be gained from both healthy debate over core antitrust principles and simplifying ideas while retaining their essential values. However, the price of this healthy debate will likely be an increased risk of swampetition and unintended consequences.
In addition to this political focus, here are some other things to watch for in 2020.
One of the most interesting things to look for is whether the national antitrust conversation remains tech focused or expands to cover all industries. There are a lot of signs that antitrust policy proposals will start to be more holistic in nature. Many candidates have discussed industries other than tech when outlining their stance on antitrust policy and several have released plans that are either industry agnostic or focus on other industries, like the farm industry. Antitrust commentators and organizations well known for calls for new tech enforcement are either broadening their focus or making clear they care about a much wider range of issues.
So is the tech industry a special case for competition, or was technopanic just a way to get antitrust in the public spotlight? There simply isn’t much evidence for the former, and the holistic approach to antitrust is far more likely to produce healthy policy results.
But Let’s Face It, Still Tech Focused
There are a lot of ongoing investigations into the tech industry, from the FTC, the DOJ, and the states. It is likely that these will have developments, maybe even results, by the end of the year. This scrutiny is probably a good thing, as long as it remains grounded in facts. The tech industry is young compared to other major industries, many of which have had plenty of time under the antitrust microscope. The tech industry is also increasingly important to our economy and the lives of consumers. It would be unusual if there weren’t investigations.
However, the tech industry does have a long list of enemies and these investigations could get politicized. It’s important to remember that antitrust enforcement is a fact-based endeavor and that investigations do not always mean that enforcement actions will result (or that the specific enforcement actions some are cheering for will happen). The various agencies investigating the tech industry will still have to prove a case, and there is no certainty whether one will emerge or what it would ultimately look like.
Last Year’s Leftovers
Last year I predicted three things would be important: the end of the FTC hearings, privacy and data protection, and lowering drug prices through more competition. These things were important, but all remain unfinished in some way. The FTC hearings concluded, but we still haven’t seen what the FTC will do with all of the information they received. A report seems the likeliest, and as I stated last year these things can take a long time. The FTC received a ton of information at these hearings, and it’s a lot of work to take that information and turn it into a document that the antitrust and policy world will likely be referencing for years to come. The FTC may try to release a report based on the hearings before the 2020 election, and the possible change in FTC leadership. Otherwise it could be another year or two before we see anything, based on the length of time past FTC studies have taken.
Privacy legislation was a hot topic in 2019, and the California Consumer Privacy Act officially took effect on January 1st. However, there still is no federal privacy law. Many federal privacy bills have been introduced, including the Social Media Privacy Protection and Consumer Rights Act of 2019, Privacy Bill of Rights Act, and the Online Privacy Act of 2019. Privacy legislation is complicated, with many potential unintended consequences. Still, it is probably better to have one federal privacy law rather than several state laws that could ratchet up the compliance costs and complications of doing business nationally.
Finally, drug prices remain a hot topic in Washington. However, the only step taken in 2019 was the passage of the CREATES Act. It is clear that much more work needs to be done in 2020.