A wave of cases are slowly moving through the courts that could bring major change for consumers.

By Peter Cameron, THE BADGER PROJECT

Lower prices on everything from meat to medication to airfare could be coming if a political movement to free up economic markets continues pushing forward.

Unlike recent administrations from both parties, the Biden Administration has taken an aggressive approach on antitrust, which includes the regulation of anticompetitive business practices, challenging large corporate mergers and enforcing laws aimed at keeping economic markets competitive.

The results, experts believe, may be lower prices, more consumer choices and better products. But those benefits may take years to arrive.

One of the clearest indications of that work to free up markets is the 50 legal challenges to corporate mergers the Federal Trade Commission and Department of Justice’s antitrust division filed in 2022, the most recent year for which that data is available, according to a recent report from Bloomberg. That’s the most in decades.

The push for more marketplace competition is not only coming from Democrats. Hard-right GOP politicians such as Sen. Josh Hawley, vice presidential candidate and Sen. J.D. Vance and U.S. Rep. Matt Gaetz have sided against big business on some antitrust issues, bucking some in their own party, and some Democrats as well.

“There is a movement, and it’s a bipartisan movement, towards doing more antitrust cases, full stop,” said Gwendolyn Lindsay Cooley, the former assistant attorney general for antitrust at the Wisconsin Department of Justice. “Particularly against Big Tech.”

Congress has generally been unwilling, or unable, to update antitrust laws, especially those pertaining to enormously influential, and enormously profitable, big tech companies such as Amazon, Apple, Microsoft, Facebook and Google.

So another branch of the federal government is stepping in, as are many states and their attorneys general, Cooley noted.

Big Tech provides some of the most prominent examples of massive mergers. Google bought YouTube, a then-unprofitable startup, in 2006 for less than $2 billion. Facebook bought Instagram in 2012 for $1 billion and WhatsApp for $19 billion in 2014. Microsoft bought LinkedIn for $26 billion in 2016 and is finalizing a massive $69 billion purchase of the video game company Activision Blizzard, which the Biden Administration tried and failed to block through the courts.

“It’s important to remember that being big is not illegal,” Cooley said. “It’s the conduct that’s illegal.”

MA BELL AND BABY BELLS

One of the most well-known and successful antitrust actions the U.S. government has undertaken was the breaking up of AT&T, also known as “Ma Bell,” in 1983. The company had held a monopoly on telephone service in most of the U.S. and Canada for more than a century.

“Once things were broken up, the world changed dramatically,” said Peter Carstensen, a professor emeritus at the University of Wisconsin Law School who focuses on antitrust law and competition. “Technological innovation blossomed.”

Increased competition between the “baby bells,” new phone companies created by the breakup, lowered prices and unleashed new technology, including the cell phone, which AT&T had developed but kept secret out of fears it would cut into its monopoly profits, Carstensen said.

“It’s an important lesson that changing the structure of markets really can produce enormous benefits,” he said.

But splitting up a company is not the only way to promote freer and fairer markets. Simply enforcing existing laws, and penalizing companies that violate them, can have similar effects, experts say.

THE PUBLIC BENEFITS OF TOUGHER ENFORCEMENT

Advocates of stricter antitrust enforcement argue that the concentration of corporate power has limited consumer choices, hurt new business growth and contributed to higher prices.

Opponents say tougher enforcement can hamper the economic freedoms of businesses big and small. Those opponents contend that the Biden administration is overstepping its legal authority.

Either way, President Joe Biden made a definitive shift in the government’s antitrust approach when he was elected president in 2020, experts say.

Previously, presidential administrations from both parties in recent decades had been relatively lenient toward antitrust and the regulation of big companies merging or buying each other, experts say. Those administrations were also less enthusiastic about enforcing existing antitrust laws.

The aggressive tack on antitrust already has reaped benefits, argues the American Economic Liberties Project, a nonprofit advocating for laws on corporate accountability and muscular antitrust enforcement.

Airfares have dropped slightly since before the pandemic, and flight cancellations were at a 10-year low over the 2023 holiday travel season, the AELP stated in a memo released earlier this year. It credited the administration’s blocking of airline mergers and a record $140 million fine it slapped on Southwest Airlines after it caused mass flight disruptions in 2022.

Bank overdraft fees have dropped in recent years, as have the price of inhalers, insulin, turkey and pork, as a result of government enforcement, the organization contends.

And Americans filed more than 5.5 million new business applications in 2023 — a record high and a strong indication that the Biden administration approach has created a more startup-friendly atmosphere, AELP says.

THE FUTURE OF ANTITRUST

Multiple government lawsuits are pending against most big tech companies, including Amazon, Facebook and Google, and a breakup of one or more is possible, Carstensen, Cooley and other experts said.

But, the potential benefits to consumers from those actions could take a while. The cases are complicated, often stretching out five years or more before being resolved, said Matthew Mitten, a professor at the Marquette University Law School who focuses on antitrust.

“I don’t think consumers are seeing the effects of these suits yet,” he said.

Congress could always take action, a more likely prospect in recent years as public disillusion with Big Tech companies has grown.

The presidential election could jam a stick in the wheel of stronger antitrust enforcement. Former President Donald Trump is unpredictable, as would be his administration’s position on much of the Biden administration’s antitrust movement, Carstensen said.

But regardless of one election’s outcome, the antitrust tide has shifted.

“I spent 50 years yelling about these issues and until now didn’t see much progress,” Carstensen said. “Here I am, 82 years old, wishing that I was 30 years younger so that I could really get much more actively involved. I’ve been waiting and waiting and waiting, and finally, things are popping.”

The Badger Project is a nonpartisan, citizen-supported journalism nonprofit in Wisconsin.

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