Federal Trade Commission Lina Khan. (Photo by Michael M. Santiago/Getty Images)
In a tight, historically expensive presidential election, both candidates are seeking the support of powerful business interests. That’s raising fears that newly robust antitrust enforcement under President Joe Biden will be short lived.
A huge, bipartisan majority of Americans supports the enforcement of laws meant to curb anticompetitive abuses. But the candidates aren’t saying whether they’ll keep a key antitrust official in place, while some billionaire surrogates of Vice President Kamala Harris have openly called for the official’s removal.
The two major antitrust watchdogs, the Federal Trade Commission and the Antitrust Division of the Justice Department, have been taking high-profile steps to reverse a decades-long trend in which Republican and Democratic administrations allowed most corporate corporate mega-mergers to move forward.
Their new enforcement includes an FTC investigation of huge pharmacy middlemen, a lawsuit the agency filed over their insulin-pricing practices, a lawsuit to stop the proposed merger of grocery giants Kroger and Albertsons, and a crackdown on tech companies such as Google. For its part, DOJ’s Antitrust Division is suing to break up Live Nation Entertainment, which owns Ticketmaster.
Prior to the last few years of newly vigorous enforcement, regulators mostly kept their hands off as businesses sought to buy each other up and become ever bigger.
Major antitrust laws were passed around the turn of the 19th to the 20th centuries and during the Great Depression. Alvaro Bedoya, a member of the Federal Trade Commission, in 2022 told the Capital Journal that their goal was fairness — especially to average people, small businesses and small farmers.
But starting in the late 1940s, some at the University of Chicago Law School argued that the laws really had a radically different goal — economic efficiency. They didn’t care how big a business was so long as they perceived it as being more efficient.
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A student of theirs, former U.S. Solicitor General Robert Bork, in 1978 published a book making the same arguments and the Reagan administration embraced some of them when it took office in 1981. Subsequent administrations have mostly been loath to tell businesses that they can’t get as big as they want, however they want.
Some of the resulting conglomerates have become so unwieldy that they’re considering breaking themselves up voluntarily.
For example, the Trump administration in 2019 OK’d CVS Health’s acquisition of Aetna, a top health insurer. The conglomerate also owns the nation’s largest brick-and-mortar pharmacy chain, the largest pharmacy benefit manager, a major mail-order pharmacy, and it’s making a big play to be a healthcare provider.
Now, under pressure from investors, CVS is considering spinning off Aetna, its pharmacy benefit manager, CVS Caremark, or some other parts or groups of parts of its operation.
Among the reasons Forbes cited for the breakup is “increased government scrutiny of Caremark.”
That’s the company’s pharmacy benefit manager, or PBM. It and two other huge middlemen — Express Scripts and OptumRx — control access to about 80% of insured patients in the United States and they’ve been accused of improperly profiting through a host of non-transparent practices.
State legislators, attorneys general and Congress have all been scrutinizing the big PBMs over the past five years. But perhaps the biggest threat the industry faces is from the FTC.
As possible evidence of that, Express Scripts has filed suit in attempt to stop the commission’s investigation into their operations, and all three of the big PBMs have called on Bedoya, FTC Chair Lina Khan and Commissioner Rebecca Kelly Slaughter to recuse themselves from the insulin suit. The businesses say the commissioners are biased because they’ve said the massive, non-transparent rebates the PBMs extract from drugmakers appear to lead to higher list prices and often to higher out-of-pocket costs for patients. But the University of Southern California’s Schaeffer Center in 2020 issued a white paper that came to the same conclusion.
The health conglomerates are far from the only business titans who want to put an end to the FTC’s vigorous antitrust enforcement under Khan’s leadership. And while high grocery and drug prices are top issues in this election, the presidential candidates haven’t rushed to defend her.
Two of Harris’ billionaire donors — Barry Diller and Reid Hoffman — in July called on Harris, if she wins, not to reappoint Khan, whose term expires this year. Another important Harris surrogate in the world of big money, The Financial Times earlier this month reported that the billionaires’ views are representative of many on Wall Street, and that they might be getting a sympathetic hearing from Harris as she seeks their support. The big-money people perceive Trump as better on taxes and regulation, but many view him as erratic.
Meanwhile, they worry that Harris would regulate them too aggressively, and she’s trying to calm those fears, the story said. Among the CEOs Harris has met was Karen Lynch of CVS, the Financial Times reported.
The Harris campaign didn’t respond to questions for this story. However, the news organization NOTUS on Thursday reported that Brian Deese, Harris’s economic advisor, is advocating for Khan’s reappointment.
The Republican Vice Presidential nominee, Ohio Sen. J.D. Vance, in February said Khan was “doing a pretty good job.” But the Trump campaign was noncommittal when asked whether an again-President Trump would reappoint her.
“President Trump announced a Trump-Vance transition leadership group to initiate the process of preparing for what comes after the election,” Communications Director Steven Cheung said in an email. “But formal discussions of who will serve in a second Trump Administration is premature. President Trump will choose the best people for his Cabinet to undo all the damage dangerously liberal Kamala Harris has done to our country.”
Sen. Sherrod Brown, D-Ohio, has been a fierce critic of what he sees as consumer abuses by PBMs and other huge businesses. His office was somewhat more supportive of Khan.
“Sen. Brown voted with the majority of his colleagues in the Senate to confirm Lina Khan as an FTC Commissioner in 2021,” his staff said in an email. “As he always has, Sen. Brown will give each and every presidential nominee the tough, fair look that the Constitution requires.”
The campaign of his Republican opponent, Bernie Moreno, didn’t respond when asked about the FTC chair.
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