Jan 27, 2025
On January 23, The Capitol Forum held a conference call with Bloom Strategic Counsel Principal Seth Bloom to discuss the congressional outlook on antitrust in 2025, focusing on the shifts in antitrust subcommittee leadership this Congressional term. The full transcript, which has been modified slightly for accuracy, can be found below.
TEDDY DOWNEY: Good morning and welcome to our conference call today with my good friend, Seth Bloom. I’m Teddy Downey, Executive Editor here at The Capitol Forum. Seth, he really needs no introduction at this point if you are familiar with The Capitol Forum. But he is the President and Founder of Bloom Strategic Council, spent a long time on the Senate Antitrust Subcommittee. And today we’ll be discussing the “Congressional Outlook on Antitrust in 2025”. And Seth, thank you so much for doing this today.
SETH BLOOM: Well, thank you very much. I appreciate the invitation. I look forward to it. I will start with my usual disclaimer that all my views are my own. They don’t represent any of my clients.
TEDDY DOWNEY: And I’m going to get into a few housekeeping things. But also, you have a few prominent clients that we should probably disclose at the jump just so that no one yells at me later. Can you just, some of the biggest ones, just say that you’re not talking about them. We’re not going to get into their issues.
SETH BLOOM: Well, a couple of the biggest ones are Amazon and Comcast. And yes, I am not going to talk about them. And I don’t, as I said, my views are my own, don’t represent them.
TEDDY DOWNEY: Okay, perfect. And really quickly, we’re going to try to take some questions at the end here. If you have questions, type them into the questions pane of the control panel or email them to editorial@thecapitolforum.com. And we’ll try to get to them towards the end of the conversation.
But first, Seth, I want to get your initial take on the new committee chairs, subcommittee chairs, ranking members, just everything you know so far, everything you’ve seen so far, how you think Congress is positioned to look at antitrust issues this year? This Congress.
SETH BLOOM: Sure. Well, there’s some pretty substantial changes in the Congressional committees with jurisdictions over antitrust. That is specifically the Senate Antitrust Subcommittee, the Subcommittee of the Senate Judiciary Committee and the House Antitrust Subcommittee, the Subcommittee of the House Judiciary Committee.
On the Senate side, there still remains some uncertainty. Of course, the control of the Senate flipped and the expectation is the former ranking member, Senator Lee, will become the chair. But the real question, on the minority side now, the Democratic side, is who will be the ranking member? You know, for a long time, for many years, the committee has been chaired by Senator Klobuchar, who’s really a leading person on antitrust, very strong views. She wrote a whole book about the subject.
But as you reported about a week ago, as The Capitol Forum reported about a week ago, Teddy, it’s commonly thought that she will no longer be the ranking member. Or if she was the chair, she won’t be in leadership. She won’t be the ranking member, primarily because of a rule of the Senate that you can’t both be the chair — or the rule of the Democratic Party I should say, not the Senate. You cannot be both a chair or ranking member of what they call an A committee and then a chair or ranking member of another subcommittee of a different committee.
In this case, she just recently assumed her position as ranking member of the Agricultural Committee, which is considered an A committee. So, that really throws into big doubt or makes it unlikely that she can be the ranking member of the Antitrust Subcommittee. And that’s a big change.
And so, the rumor is, and as The Capitol Forum reported, that it’s going to be Senator Cory Booker of New Jersey, who will take over the ranking membership. And I think that’s very likely to happen. The only caution I will give is that the Judiciary Committee has not yet announced it. And we don’t know for sure until it’s actually announced. With the Senate and with the Hill, you never know until you know. So, I’ll put that caution out there. But we can assume for purposes of this discussion that it will be Cory Booker.
On the House side, it has been announced who the leadership of the Antitrust Subcommittee is going to be. And where formerly, it was chaired by Representative Massey of Kentucky. It is now going to be chaired by Representative Fitzgerald of Wisconsin. And the ranking member, who had been Representative Correa of California, now will be Representative Nadler, the former Chair of the House Judiciary Committee, who basically had his choice of which subcommittee he wanted to take over when he was no longer the ranking member of the House Judiciary Committee because Jamie Raskin took that role.
So, that’s the leadership of the subcommittees. And if you want, we can continue to talk about what these people are likely to do if you’d like, if you want me to turn to that, Teddy.
TEDDY DOWNEY: Yeah, let’s start with Fitzgerald just because you’re familiar with Wisconsin politics, what a big change that is for Massey. And then let’s get into the ranking member. Let’s get into the ranking member of the House and then we’ll switch over to the Senate.
SETH BLOOM: Okay, we’ll go into that. So, Fitzgerald, it’s interesting. So, former Chair Massey really was not interested in the subject, hardly had any hearings. The one thing he really cared about was agriculture because he has some farming interests. But he just didn’t seem to have much of an interest in antitrust competition policy.
So, the subcommittee was very quiet. And I should say, antitrust is only part of its jurisdiction. It does regulatory reform, some other issues. But I’ll just talk about the antitrust side of it. So, the subcommittee was quiet on antitrust.
Now with Fitzgerald, I think he’s somebody who’s much more interested in antitrust issues. And having spoken to him and having spoken to his staff, I know they are. And where Massey might be considered sort of a MAGA figure on the right-wing of the Republican Party, Fitzgerald’s much more of a centrist. And so, I do think he will have a much more active antitrust subcommittee and they’ll start holding hearings. They’ll look at issues.
One thing I know they’re interested in is some reform of what they see as Lina Kahn’s excesses at the FTC. And particularly the new HSR filing requirement, filing form, I think they’re going to be — they may look to change that legislatively, but at least they’re going to look at that issue.
But I think they’re going to be across the board much more interested in antitrust and hold hearings on mergers or allegations of anti-competitive conduct, that kind of thing, and oversight hearings too. I just expect a much more active antitrust subcommittee in the new Congress under Chairman Fitzgerald’s leadership. And as I say, he’s a centrist. He’s a smart man. I think he could do some meaningful work on the antitrust subcommittee.
TEDDY DOWNEY: Nadler on antitrust, obviously, over the years, I think grew more sort of active on that issue. You had the House report.
SETH BLOOM: Right.
TEDDY DOWNEY: You just had a lot of activity on antitrust toward the end of his tenure as chair. What’s your take on his sort of evolution and where he is now on antitrust? And where can he work together, do you think, with Fitzgerald?
SETH BLOOM: I think Nadler is a pretty much like say a hardliner on antitrust or a neo-Brandeisian, very much in the line of Lina Kahn. In fact, Lina Kahn worked for the House Judiciary Committee, four years ago I guess it was. And you talked about, before she became an FTC commissioner, chair of the FTC, you talked about their report on anti-competitive, what they considered, well, the state of the tech economy, quite a long report they wrote when Nadler was chair, not in the past Congress, but the Congress before. They had hearings on it. They wrote this lengthy report, which I think Lina Kahn had a lot to do with actually.
And then most significantly, they introduced and passed out of the House Judiciary Committee, six pieces of very strong, aggressive pieces of antitrust legislation, all of which Nadler co-sponsored and all of which Nadler voted for. I mean, I just think that indicates where he comes from on these antitrust issues, which as I say, is a sort of an antitrust hardliner. So, I think he’ll be interested in pursuing those issues.
Now, the question when it comes to legislation in the House Judiciary Committee is that it’s now under the chairmanship of Jim Jordan. And Jim Jordan has quite a bit of hostility to antitrust legislation. And with one exception, no legislation moved this last Congress because he didn’t believe in it. So, whatever Nadler thinks as ranking member, that really doesn’t matter so much in the House. It’s really the majority has control here.
So, I wouldn’t expect a very active legislative docket in the House Judiciary Committee on antitrust, despite, I think, Fitzgerald’s interest in these issues, other than maybe something like change the HSR filing rules, pull back on some of the aggressive antitrust initiatives of former FTC Chair Kahn.
And by the way, I said only one bill passed out of the House Judiciary Committee on antitrust last Congress under Jim Jordan’s chairmanship. And that was the One Agency Act, which removed all antitrust authority from the FTC to the DOJ. So, it’s sort of a slap at the DOJ and slap at the FTC in a highly partisan vote.
TEDDY DOWNEY: Slap at the FTC, yeah. Let’s talk really quickly, I want to stay in the House for one more minute and then talk about things that could get out of the House. Obviously, the House has a very slim majority of Republicans. So, it will be tough to move some things. But there are other key subcommittee chairs that have anti-monopoly powers. I think most notably Buddy Carter is going to be Chair of the Health Subcommittee and Energy and Commerce, has been an absolute very aggressive champion of taking on PBMs.
SETH BLOOM: Yes.
TEDDY DOWNEY: If Jordan is sort of keeping a cap on legislation that involves sort of anti-monopoly stuff or aggressive antitrust policy — we’ll get to the HSR stuff in a minute. But is it really going to be these other subcommittees, other committees, where you could see some more pointed populist stuff coming out of the House?
SETH BLOOM: You could. And I think your PBM point with Buddy Carter is highly relevant here. The other thing is when it comes to specific antitrust legislation, it gets referred to the Judiciary Committee. So, I think there’s only so much those other committees and subcommittees can do. They can, of course, hold hearings and look at these issues.
And the other thing we should, maybe more broadly, is that this is not your father’s Republican Party. It’s a highly populist Republican Party. So, things like high drug prices are going to attract interest from Republicans that maybe wouldn’t have happened 10 or 15 years ago.
So, yeah, that’s going to go on, but still the role of Jim Jordan is sort of a — to put a blockade on antitrust legislation is really important. Unless it changes this Congress, but given his record, I don’t see it. But yes, other subcommittees may be looking at these issues. But when it comes to legislation, I think it’s pretty tough.
TEDDY DOWNEY: And when it comes to things that might pass out of the House when it comes to antitrust, you mentioned that, in terms of oversight, they’ll be looking to perhaps repeal things that the Lina Khan-led FTC did.
SETH BLOOM: That’s right.
TEDDY DOWNEY: You mentioned the HSR rule, the new HSR filing guidance basically, by the FTC.
SETH BLOOM: Yes.
TEDDY DOWNEY: I have a question from the audience here. Do you think that will be repealed under the Congressional Review Act? Or is there other legislation that we should be looking at when it comes to the HSR?
SETH BLOOM: Yeah, I mean, it’s possible under the Congressional Review Act. Or they can just enact legislation repealing it. I mean, it will be one of the two. I’m not sure which method they’ll use.
TEDDY DOWNEY: I think, didn’t that get a 5-0 vote?
SETH BLOOM: It did.
TEDDY DOWNEY: Didn’t Ferguson vote for that? So, it would seem a little odd to be repealing something that two Republicans voted for.
SETH BLOOM: That’s true. But it got it by reducing some of the changes that — actually, I think it was a 4-1 vote. So, I have to look that up, but it got it to get Holyoke onboard, but I’m not sure about Ferguson.
TEDDY DOWNEY: I’ll have to look it up.
SETH BLOOM: But at least 4-1. But they made changes to the proposal. But still the business community would say it’s really overbroad and excessive, burdensome and contrary to the intent or the meaning of the HSR statute. So, even with the changes they got, I don’t think it’s going to satisfy folks who are sort of pro-business kind of folks.
TEDDY DOWNEY: The only pushback I have here, and I’m curious to get your response, the leader of the charge on repealing the HSR rules is the Chamber of Commerce and like the antitrust defense lawyers I would think are just not very influential. You mentioned the not my father’s Republican Party.
SETH BLOOM: Yeah.
TEDDY DOWNEY: The Chamber is at an historically low point in terms of its influence in the Republican Party. I think you can safely argue that. There’s obviously a pro-business, pro-big business element of the Republican Party, but it’s not like the Chamber is particularly effective. And so, do you think that hurts the ability to do something like this? Or is it really ultimately going to be just most big businesses coming in and asking for this that would drive it potentially?
SETH BLOOM: Yeah, I mean, I think you made a good point. But I think there’s still a lot of opposition, or there was, to what Lina Kahn did as Chair of the FTC. And this was one of her many, one of her signature policies. So, I think the attempt to wipe the slate clean of Lina Kahn — I mean, this isn’t a legislative thing, but what do they do with the new merger guidelines? Does the new FTC and DOJ under Gail Slater try to repeal that? That’s another, and I guess it’s not a legislative, it’s sort of a policy statement or guidelines of the agencies. But that’s another really interesting thing that we should look for to see what their attitude is. And we have all kinds of things like that. Section 5, unfair methods of competition statements. What about the junk fee rulemaking?
So, in all this stuff, non-compete rulemaking, all this stuff, I think, just because it was done by Lina Kahn, and particularly in the House, there was a great deal of hostility to her from the Republican side, with a couple of exceptions. But by and large, the Republican, you know, if you saw oversight hearings that they had last Congress, she was always given a really hard time.
TEDDY DOWNEY: I want to come back to this because, obviously, the most prominent supporter of Lina Kahn in the Republican Party is now the Vice President of the United States.
SETH BLOOM: That’s true.
TEDDY DOWNEY: So, that makes it a little bit confusing at times.
SETH BLOOM: It makes it confusing, yes.
TEDDY DOWNEY: But I want to stay on the House for one more second, and then let’s move over to the Senate. Let’s come back to Slater and Meader as Trump’s picks and the Vice President’s role in all this after we get through the Congress. Because we really want to get through everything, congressional related here for our audience.
The one agency, you mentioned that — I would say Republicans seem extremely optimistic that they’re going to pass this sort of very aggressive, some form of a very aggressive roll-up of antitrust authority, taking it away from the FTC and giving everything over to the DOJ.
And I’m thinking about potentially trying to add this controversial sort of legislation to a must-pass budget vehicle at some point. What do you think the odds of that getting out of the House are? I mean, when we do the Senate, we can talk about that again in the Senate, but what do you think the odds are of doing something like that in the House?
SETH BLOOM: Well, okay. We should talk about the Senate too. The thing to understand about the One Agency Act, and which did pass on a strong partisan vote — I think almost all the Republicans voted for it and all the Democrats voted against it — the last Congress in the House Judiciary Committee. But that’s the Judiciary Committee. And, I mean, actually the same analysis applies to the Senate. But if antitrust authority is moved from, I mean, it’s shared now, but if it’s entirely moved from the FTC to the Justice Department, that means the Energy and Commerce Committee in the House or Commerce Committee in the Senate loses jurisdiction over antitrust because they are the primary oversight committee over the FTC.
This has been tried before and always institutionally it has enormous problems. And because of the pushback om jurisdictional ground from the Commerce Committees. So, this maybe is more powerful in the Senate because you have to have 60 vote thresholds in the Senate. Where in the House you can just pass things on a majority, but still. So, maybe in the House it’s easier to pass in the full chamber. But I’d be really surprised to see this enacted into law. Yeah, I’d be really surprised.
I mean, there was an effort 20 years ago, I think it was 2004, or 21 years ago, not to move everything to the DOJ, but just to delineate specifically what industries would be covered by the FTC and what industries would be covered by the DOJ. And all of media was moved to the DOJ under this proposal and huge objections from the Senate Commerce Committee at that time, the then chair, Fritz Hollings, basically didn’t allow it to move forward because they didn’t want to lose jurisdiction over media competition issues. So, that was just delineating the issues, not moving everything to DOJ. So, I just think it’s very difficult for something like this to pass Congress.
TEDDY DOWNEY: Yeah, in addition, obviously, if they do it on the must pass budget bill, it would only need 50 votes in the Senate, but it would have to pass the Byrd rule. It would have to jurisdictionally not be subject to whether or not this is a policy change or a budget issue. And I suppose they could try to craft it as a budget issue. But again, getting the amendment on, getting it added to the bill.
SETH BLOOM: Right, those are excellent points, Teddy. I’ll believe it when I see it. I don’t doubt that it passed the House Judiciary Committee again this year, a partisan vote.
But I guess the other thing I’ll say about it, some of it — I don’t think Senator Lee would say this because he was the original sponsor, main sponsor, in the Senate and the House just later picked it up — but some of it was also directed at Lina Kahn. You know, it was again, a slap at her. As these Republicans would see it as overstepping her authority. Now, of course, Lina Kahn is gone. I mean, that’s some of it. So, that may take a little bit of the impetus out of it, but some people —
TEDDY DOWNEY: And in addition to that, two Utah-based FTC commissioners, right?
SETH BLOOM: That’s a good point.
TEDDY DOWNEY: Holyoak and Meador. Lee’s going to gut the power of the agency that his former staffers changed.
SETH BLOOM: Well, it’s a good point, but I don’t think that will necessarily deter him. But I think on a more principled basis, he would say, we have these two agencies. It’s duplicative. They have inconsistent results, different procedures. So, all those reasons. It doesn’t have anything to do with Lina Kahn. And too bad about my Utah people. But all those reasons are reasons we should do this.
I will say one final thing about it though. Of course, we have the effort to cut federal spending, the Department of Government Efficiency. And this seems to be — and I would sympathize with this view — it seems to be very duplicative. Like if you were designing an antitrust enforcement regime, would you have two federal agencies doing the same thing? Actually, my old boss in 2000 said that. He didn’t have a specific goa. He just was questioning it.
So, I think on the issue of efficiency and reducing the budget, that’s the one new factor we have here. Because of Elon Musk and Doge and all that, that could maybe give some added impetus to it. So, I maybe ought to be more cautious in scoffing at it as I did two minutes ago. That is a factor.
TEDDY DOWNEY: In terms of taking money away from the agencies, they’re pretty much out of money. They’re pretty much tapped in terms of budget because of all the action that you saw during the Biden administration. We’re going to get to the Senate in a second. But overall, do you see the same funding cuts sought for these agencies that you saw during the Biden administration now that it’s Trump’s people in charge?
SETH BLOOM: Yeah, I do. And there was an effort to cut the agency budget in the last appropriation, the FTC’s budget — and I think the DOJ antitrust as well — in the last appropriation cycle.
TEDDY DOWNEY: They did cut the DOJ’s antitrust budget significantly by not letting them tap into the new HSR fund.
SETH BLOOM: Okay, but they never passed a budget either for the FTC or DOJ. It’s all continuing resolution. So, that hasn’t happened. But there was an effort to further cut it which Lina Khan and Amy Klobuchar and everybody really decried. So, I think we’ll probably see that too.
Although, and we can talk about it, the Trump administration is much more interested in antitrust than prior Republican administrations. I don’t know if they want to handicap the agency so much.
Anyway, the FTC had asked in this fiscal year for a 25 percent budget increase, which was pretty much DOA, Dead On Arrival. And I think there ain’t no hope of that. The question is, will it get cut further? And it’s an open question.
TEDDY DOWNEY: So, you think looking for the Trump budget when it comes out in terms of cuts will be significant.
SETH BLOOM: It’s possible. It’s possible, yeah.
TEDDY DOWNEY: Now, let’s get over to the Senate side. We’ll have a new ranking member in Booker. Let’s talk Lee. What would you expect Lee’s priorities to be in the Senate? And then we’d love to get your take on Booker.
SETH BLOOM: And let me just say this as a disclaimer, the same rule that applies to Democrats about the eight committees, that’s applied to the Republicans. And Lee just assumed the chairmanship of the Energy Committee, which is an eight committee. So, he’s subject to that rule, but most people say that there’s no problem. His caucus can waive it or the Republican caucus. And it looks like that’s going to happen. But I just wanted to get that out there.
TEDDY DOWNEY: So, his colleagues will give him a waiver to let him remain.
SETH BLOOM: Yes, that’s with everybody. We won’t know for sure until we see the subcommittee list, but that’s what we expect. So, let’s assume that he’s the subcommittee chair. Well, how will he run it? You know, he’s always, he’s not at all been like a Massie. He’s always been interested in antitrust. He’s really interested in antitrust. And he has sort of an academic interest. He cares about it.
Now, he’s a big follower of Robert Bork. He always talks about how Robert Bork is sort of his hero. And Robert Bork was the person who academically sort of started the idea of the consumer welfare standard, a really restrictive way of looking at antitrust and focusing mostly on the price effects. So, he’ll defend the traditional way antitrust has acted and be cautious about government intervention.
Well, but having said that, there’s a notable exception to that because he’s a big critic of Google. He started his career in the Senate that way. I remember when I was a general counsel of the Senate Antitrust Subcommittee for almost 14 years until early 2013. And when he came into office in 2011, he wrote us a letter saying, you ought to look at these allegations that Google’s been engaged in anti-competitive conduct, like in January, one of the first things. We were already planning on doing that. He didn’t have to write us a letter. We had a hearing that September. But that just shows you he’s been really very aggressive on Google antitrust issues.
And so, that’s, I think, a notable exception to his more laissez-faire approach on antitrust generally. And he has sponsored some, well, some antitrust legislation, one of them being the One Agency Act, one of them being a bill that passed in the last Congress saying with respect to state attorneys general, cases should not be removed to — when state attorneys general bring federal antitrust cases, which they can, they can no longer be removed to other federal districts out of the state. They have to be kept in the same state. Which also was sort of an anti-Google piece of legislation because the states filed several antitrust claims against Google, like Texas did. They wanted it to go in Texas.
But most notably, he sponsored the America Act, which would require Google to divest itself of part of the ad tech stack, where it has a dominant position in the ad exchange, the buying side tools, and the selling side tools. After this, if this legislation was enacted into law, it no longer could. There’s a case about this, which the DOJ has just — the trial’s just wrapped up in the state of Virginia. And there’s a Texas state case on this, but he also wants legislation on this. So, there’s a piece of aggressive antitrust legislation. But it’s anti-Google that he’s proposed.
So, I think it’ll sort of be a mixed bag. But I would expect it to be a fairly active antitrust subcommittee under his leadership. Just maybe not as hardline as Senator Klobuchar has been, but it’ll be fairly aggressive, while maintaining, in many areas, a more Borkian view of how antitrust should go.
So, I don’t know, in terms of legislation, beyond the One Agency Act and beyond the America Act, what particularly he’s going to push, if anything. But I think they’ll have an active oversight docket with the committee.
TEDDY DOWNEY: I want to get to Booker in a second here. But conservatives on the Supreme Court have speculated that maybe there should be some common carrier regulation of Big Tech. That is obviously something that has also been proposed by the neo-Brandeisians. Would you expect hearings, either in the House or the Senate, on some kind of utility style regulation of communications platforms, Big Tech?
You know, obviously, we’ve got an FCC that is going to be critical of Big Tech as well. Big Tech has been a clear target of the Trump administration, at least historically. And again, it’s a little confusing that they were all in the front row of his inauguration. So, there’s some speculation that that won’t continue.
But from your perspective, from a hearing standpoint, from an intellectual standpoint, this common carrier utility style, regulation of Big Tech came up in – it comes up with Section 230. It came up in the TikTok ban. It seems topical. I’m curious if you think that will get a hearing.
SETH BLOOM: Interesting. Well, it’s also come up very much in the proposed remedy in the Google search case, which will go to trial in April. And basically, you see the kind of restrictions that would be put on Google if the DOJ remedies proposal was adopted. That, I would say, is just like common carrier regulating like a public utility.
Will there be hearings? That’s a good question. I mean, yes, there’s a lot of hostility to Big Tech amongst the Republicans. It primarily comes, not because of Republicans’ great love for antitrust, but because they believe that Google, Facebook have discriminated against, suppressed, conservative viewpoints. And so, they look at any tool to go after Big Tech, which includes antitrust.
Will they seek that kind of regulation? It’s a little unclear. And will they push for hearings? You know, of course, the Republican majority will not support net neutrality. And so, that’s not Big Tech. That’s communications platforms. But I don’t know the answer to that question, Teddy.
TEDDY DOWNEY: Let’s keep going. What’s your take on Booker? And then I want to talk about Senate leadership after that.
SETH BLOOM: Sure. Well, Booker is very interesting because he’s been a member of the Antitrust Subcommittee, but he really has had no visibility. I have a hard time thinking of a statement he’s made on antitrust, with one exception, which I’ll get into. He has co-sponsored Senator Klobuchar’s aggressive antitrust legislation, such as AICOA. But he really hasn’t done much in the last five years or so. So, in that regard, he’s sort of a blank slate.
However, having said that, actually, in your article that you published last week on the changes to the Antitrust Subcommittee, you linked to a speech that Senator Booker gave to the Open Markets Institute in 2018. And that speech was the most aggressive, pro-enforcement speech. I mean, Lina Khan could have given that speech.
And so, I think that tells you where he’s coming from. I pulled out some quotes out of it because I’d listened to it. And I thank you for linking to it, because I had not been aware of that speech. He talked about the incredible concentration of economic and political power in the economy in 2018. He would say that today. “Small businesses are struggling to compete with multinational corporations.” He said, “the state of competition was most insidious”. I could go on and on with these quotes.
So, that tells you where he’s coming from. So, I think from that, and from his co-sponsorship of Senator Klobuchar’s legislation, he’s going to be an aggressive voice for the neo-Brandeisian point of view. I don’t think there’s any question about that, in a whole variety of areas.
He actually has a particular interest in food supply. And he’s concerned about people not being able to afford groceries. But beyond that, small farmers sort of being oppressed and not having these giant monopolies, meatpacking firms and food processors and the like of no choice where to sell their goods, either their grains or their beef or chickens. So, he’s really strong on that. So, I think he’s going to be a very strong and aggressive ranking member of the Antitrust Subcommittee.
TEDDY DOWNEY: We’ve seen Meader give talks about his support for the Robinson-Patman Act. Obviously, he has ties to Senator Lee, having worked for Lee. We have two major Robinson-Patman Act cases. It seems like there is some level of bipartisan interest in revival of the Robinson-Patman Act. Even Ferguson, the new chair, has said he thinks it was wrong to ignore the law and it deserves to be revitalized. Although, it’s very unclear how he would support that. He’s spoken about buyer power very specifically. But then he dissented in a case where it seems like Walmart was at the center of. And obviously they have tremendous buyer power.
So, there’s some level of bipartisan support for revitalizing the Robinson-Patman Act. Again, it gets to the center of this grocery price issue at some level. Do you think that that has any chance of getting some airtime in the Senate?
SETH BLOOM: Well, it doesn’t need any legislation. The law’s on the book. So, you don’t have to think about legislation. The question is whether —
TEDDY DOWNEY: The hearings. I mean, there’s been a general lack of attention to that law for so long. It seems like it could be — in terms of budget, there have been budget proposals to specifically fund RPIA enforcement at the agencies.
SETH BLOOM: Yeah. You’re right about Mark Meader talking about it. And I guess you identified the new chair, Ferguson. But I’ve never heard Senator Lee really talk about it. So, I’m not sure how much interest there is in Congress.
There’s certainly interested, as you pointed out, in the agencies, particularly the FTC. And I’d be surprised to see them not continue the cases that were just filed. I’m not sure that there’s going to be a lot of Congressional interest with all the other things that they can look at. They’ve been sort of silent on it. So, I don’t have any strong expectation of that. But we’ll see. It’s possible.
TEDDY DOWNEY: Let’s talk about leadership for a second. If you look at the Democratic leadership, there are a lot of names in there that are skeptical of a monopoly. You’ve got Warren. You’ve got Sanders, I think, Klobuchar, Booker, all at some level of leadership at this point.
The biggest Big Tech champion on the Democratic Party remains, I think it’s fair to say, Senator Schumer, carrying the water for Big Tech for a while now. You know, both of his daughters are employed by Big Tech companies. Do you think that will change at all, given that Big Tech is cozying up so directly to Trump? Do you think Schumer remaining champion is at risk, just given the way that we are seeing Big Tech come over to the Trump side of things?
SETH BLOOM: Interesting. By the way, I think I wouldn’t talk about Senator Schumer’s daughters. I think the real reason that Senator Schumer has been a champion of Big Tech is because of all the employment in New York State of Big Tech companies. I just want to put that out there.
TEDDY DOWNEY: Yeah, both are true, right?
SETH BLOOM: You say that. I’m not going to agree with that. I’m not going to agree with that. But anyway, now I said that, I lost your question.
TEDDY DOWNEY: Do you think his unwavering support of Big Tech will waver at all? Just given the danger of Facebook changing their algorithms to follow Twitter, just the overt outreach to the Trump campaign to bend the knee effectively. It seems problematic just from a — if you’re just concerned about democracy, or even if you’re just looking at the raw exercise of political power, I think the Democrats have, in my estimation, naively tried to think that Big Tech would engage in content moderation that was supportive of their views or what have you, or at least neutrally. That is just a very questionable view, naive view from my perspective.
But now you don’t even have that. Now they’re not even pretending to do any content moderation anymore. They’re giving up, at least Facebook, giving up on it. We’ve seen obviously Twitter and Musk, pretty clear the dangers of Musk owning a communications platform after he’s doing Nazi salutes. What’s your take on Schumer? Will that waver? Will that support for the industry waver? Or do you think, hey, this is a political calculation? He’s got jobs in the state and he’s not going to be moved by this?
SETH BLOOM: Yeah, I mean, I think you raise some really important points there, but I’m not sure. I mean, he’s been so entrenched, particularly in support of Google. I remember he was one of the biggest supporters of Google in our September 2011 hearing that I mentioned going back to the time that I worked at the Senate. And that really hasn’t changed for —
TEDDY DOWNEY: That was before the jobs were in New York.
SETH BLOOM: No, they had acquired DoubleClick. So, the jobs — no, the jobs were in New York. There were a lot of Google jobs in New York at the time. So, anyway, and, of course, most notably, he blockaded Senator Klobuchar’s AICOA bill from getting a vote on the Senate floor in 2022, I guess, at the end of, yeah, in 2022, the end of the Congress before this last one.
And so, will all of that change? I don’t know. I mean, I think you raised some good issues. And yeah, the content moderation issues you point to are important. But I’ve yet to see it. I guess I don’t have a good answer to your question. I think you raised some important points, but yeah.
TEDDY DOWNEY: What about Republican leadership? What do you think about that?
SETH BLOOM: But just to finish my last point, then we’ll go on. You know, he’s now minority leader.
He’s not a majority leader anymore. So, his view is less important on these issues. He can’t blockade things on the Senate floor anymore.
So, Republican leadership, well, we have Thune as Minority Leader. They haven’t really, I mean, I think they’re going to really follow what Trump says and the Trump administration. And obviously, the Trump administration is hostile to Big Tech for the reasons that I said. But we’ve yet to see how that’ll all work out. But yeah, I think they’ll pretty much follow what their leader says. And also, sadly, with somebody like Elon Musk says.
TEDDY DOWNEY: So, you think Republican leadership in the Senate will get in line with Trump?
SETH BLOOM: I think so. Well, look they’ve gotten in line so far.
TEDDY DOWNEY: Well, let’s talk about Trump and his two key appointments here, Meader and Gail Slater. Would you expect them to get a prompt hearing and vote in the Senate? And what is your view on how they will continue or deviate from the Biden administration enforcement? And maybe we could talk maybe first about mergers and then conduct after that.
SETH BLOOM: Well, just on the question of the timing of their hearings, it’s sort of the easier question. You know, I’ve heard that Slater’s talking to members, Senators, and nothing’s been scheduled. But given that, I think that she will get a hearing fairly soon. You know, I could see in the next two or three weeks before the Judiciary Committee. And then it becomes a matter of how quickly her nomination can be processed on the floor. You know, these things aren’t overnight. There’s a lot they’re doing. But you could see her getting confirmed by end of March, say. I think that’s realistic.
And then for Meader, he’s got to get a hearing before Senate Commerce Committee. I don’t know exactly the status of that. I follow the Judiciary Committee more closely than Commerce. But they’ve got a lot to do. But I would say his scheduled hearings, floor action, two to three months is what I would say.
TEDDY DOWNEY: I was surprised how quickly they were announced out of the Trump camp. It was pretty high up on the list.
SETH BLOOM: Yes, it was.
TEDDY DOWNEY: And then you also saw Bondi in the hearings.
SETH BLOOM: And they’re going to have a vote on her committee next Wednesday, Pam Bondi.
TEDDY DOWNEY: Strong support. So, I would expect, I mean, it seems like that’s a priority.
SETH BLOOM: I think it is a priority.
TEDDY DOWNEY: Kind of prompt, within three months. I think that’s pretty quick, historically speaking.
SETH BLOOM: It is quick, historically. We haven’t seen — people have been named until several — even nominated until several months into the new administration. It’s very quick. But everything about Trump’s choices have been quick. You know, that’s what he did. But it’s very quick. Yeah.
TEDDY DOWNEY: Let’s talk about merger policy first from the new enforcers. I think the consensus is that we’ll see more openness to consolidation, a little bit of a friendlier regime. But perhaps more aggressive mergers and still probably roughly the same number of challenges. I’m curious of what you think of the overall outlook on the merger front. I think that’s consensus or it’s close. I mean, friendlier but still pursuing some deals.
SETH BLOOM: Definitely the same number of challenges. I’m not sure. I don’t agree with that. But let me make the general point — Teddy and I spoke on the phone yesterday. The general point I made to you, Teddy, and I said this earlier on this call, this is not your father’s Republican Party. So, this is mergers and non-mergers. But what’s their approach to antitrust?
You know, if you think the Biden administration, Lina Khan, Jonathan Kanter, was a 10 on a scale of one to 10, 10 being the strongest antitrust enforcers, I think they were a 10. If you want to think about traditional Republicans, say George W. Bush, and how they looked at antitrust enforcement, I would say it was a two or a three. Very pro-business laissez faire.
What is what is the Trump approach, both Ferguson at FTC and Gail Slater at DOJ? I would say it’s a six or a seven. And I would say on Big Tech issues, it could be a seven or an eight. So, it’s much stronger.
Okay, so that’s my general comments about what I expect to be the general Trump administration antitrust enforcement. I mean, maybe I’ll just go on. Beyond this hostility to Big Tech, which we’ve talked about, he’s a populist. You know, he cares about issues that are going to care to ordinary folks like drug prices. So, health care. The case against Live Nation Ticketmaster ticketing fees. People hate that. And he’s going to be a populist. I would expect his Justice Department to continue that case. So, all of that. So, that’s why I say it’s a six or a seven in general and maybe a seven or eight on tech.
Now, specifically going to your question about merger policy, let’s start with Ferguson. It was interesting. We have the love note that Ferguson wrote to then President-elect Trump, I guess in November, which was publicized. He wrote a — or you might call it a job application. He wrote this two-page note about what his antitrust priorities would be. And he said a number of things in that.
First of all, he’s going to get rid of the woke policies, things like that. He continued to maintain hostility to Big Tech. And he talked about Big Tech being a monopolist and destroying Americans, getting a fair shake to Americans to get their viewpoints out. You know, this content suppression, suppression of conservative views. He talked about that.
But then I think significantly on this question, he has sort of attacked Lina Kahn’s merger policy and said we need to go back to normal merger review. So, I think that to me, on your question of merger policy, indicates to me that Andrew Ferguson is going to be — and that’s why I disagreed with you said the same number of cases. Andrew Ferguson is going to be more laissez faire if we get out of the hot button Big Tech companies when it comes to mergers. I think he really is going to be. And he is going to be early terminations again, which had been struck down in the Biden administration. I guess with part of that HSR rule, they said they would start them again. But things like that. It’s going to be a friendlier merger policy outside of Big Tech.
You know, if we think about Gail Slater then at DOJ, I mean, we don’t know of any love letter like that. So, we don’t know what she really thinks. But we do know her record. I mean, she was at the FTC for years. And then she worked for the Internet Association. But after that, she took sort of an anti-tech turn and she ultimately worked for then Senator Vance as an economic policy adviser. And we know that Senator Vance was aggressive on antitrust, particularly against Big Tech, and said the one good appointment that Biden made was Lina Kahn.
So, whether she would share that, I don’t know. But I think to her, that may indicate she might be a more aggressive antitrust enforcer than I expect Ferguson to be. But still, I don’t expect them to have the same — outside of these hot button industries, you know, Big Tech — I don’t expect to have the same highly aggressive antitrust enforcement.
For example, the tapestry capri handbag merger, which the Wall Street Journal and sort of traditional Republicans just skewered attacked. Now, ultimately, the FTC was successful in blocking that merger. But I don’t think we would see a case like that being brought by either the FTC or DOJ. That’s the kind of thing I just don’t think will happen and other mergers like that.
The really interesting question is what are they going to — I think I mentioned this earlier — what are they going to do with the new merger guidelines, which are quite extreme? You know, the way I look at those merger guidelines — and I know my some of my friends would not like this. But if you look at those merger guidelines, basically, you can litigate to block any merger, you can challenge any merger. They’re so broad, and there are so many ways you can go after mergers. So, I know Lina Khan would say the courts have endorsed these guidelines, that’s fine. But they are really very strong guidelines.
Will they seek to withdraw them? I think that’s a decision they have to make fairly soon. And that’ll be a real indicator. Do they keep them? Or do they withdraw? I would say that I might lean to the more withdraw side. But we’ll see.
TEDDY DOWNEY: Well, I would note that Trump has not repealed the executive order on competition.
SETH BLOOM: He has. And I was going to bring that up.
TEDDY DOWNEY: Trump has not fired Rohit Chopra, or Lina Khan for that matter.
SETH BLOOM: Well, she’s leaving.
TEDDY DOWNEY: She’s leaving in a week, but didn’t fire her. So, it will be interesting, I think, to your point, I just want to clarify what I was saying earlier is that I think that Trump has signaled that he wants to be pro-growth. In addition to being populist, I think he’s generally supportive of the Dow going up, mergers, economic, sort of like Wall Street activity.
SETH BLOOM: Yeah.
TEDDY DOWNEY: So, there’s sort of a little bit of a not inconsistency in some respects of being populist and pro-growth. Or you can sort of point, well, he’s pro-growth and he’s going to be pro-merger. But then he appoints Gail Slater. So, my point was more that because of the pro-growth signaling, and some of the discussion out of Ferguson, there’s going to be a lot more mergers. And they’re going to be pushing the envelope a lot more. So, you could get horizontal overlap cases that are easy for enforcers to bring. And by the way, there just aren’t that many litigated antitrust cases. You saw a lot of people walk away from their deals because of the posture, but you also saw a lot of deals that just didn’t happen because of the way that Lina Khan and Jonathan Kanter worked.
SETH BLOOM: You did some litigated ones like Tapestry, Capri, JetBlue and Spirit and others. So, there has been more litigation, but I take your points. Those are good points. Those are good points. But there certainly will be more merger filings and the companies will test the envelopes of this. I know our time is running short. Can we talk about the non-merger side of the equation?
TEDDY DOWNEY: Yes, I would love to. I was about to ask you a question about that. Can I start with my first question?
SETH BLOOM: Yeah, go ahead.
TEDDY DOWNEY: That to me is the most important. UnitedHealth. We did a lot of reporting that DOJ was close to bringing a Section 2 case against UnitedHealth but ran out of time. Would you expect Gail Slater to continue that investigation and ultimately bring that case in 2025?
SETH BLOOM: Ultimately bring that case is a hard one to say. You know, one doesn’t know what evidence they’ve uncovered. But yes, I would expect her to continue it. I think healthcare antitrust issues are going to be a priority. And this maybe gets into the populism. I’d expect her to continue that. Sure.
TEDDY DOWNEY: Okay. And then obviously, we have a lot of other litigation. The vast majority focus on Big Tech when it comes to conduct, Google search, Google AdTech, Ticketmaster, Apple, Amazon, Facebook, Visa, RealPage when it comes to financials and housing, PBMs, anesthesia roll up at the FTC on healthcare, Agri Stats, Syngenta, Corteva, Southern Glazer RPA. And then you’ve got the other RPA case against big soda.
I just rattled off all the litigation. You know, obviously, we have other investigations into Microsoft, SpaceX. I imagine that one will be dropped. NVIDIA, Uber One, Realtors. What’s your outlook on the conduct side. And what should we be looking for in terms of the Trump era focus, if any, on conduct?
SETH BLOOM: Yeah, and I won’t say anything about Amazon, as I said earlier. On the conduct side, this is very interesting. So, it was another signature initiative of particularly Jonathan Kanter to bring monopolization cases. And he felt that the whole monopolization, since the Microsoft case concluded in 2001, had just been abandoned by DOJ. And it needed to be revived. And he clearly did that.
So, the question is, will this be continued in the Trump administration? Now, I would point out that the Google search case was begun under — in the Trump administration, at the end of, in October of 2020. And the Facebook, Meta/Facebook, case at the FTC was brought under the Trump administration FTC, Joe Simons. So, another monopolization case. But the signature emphasis that Kanter in particular put on monopolization issues, will that continue? I’m not sure. I mean, but I think the anti-monopoly forces have taken a hit with the departure of Jonathan Cantor. I’ll say that.
Now, but we have something very interesting, which is going to happen in March, which is that there’s a deadline of March 7th for the DOJ to file new remedies or a revised remedy provision proposal in the Google search case here in federal court in D.C. Will they continue the same remedy proposal that the Biden DOJ filed in November? It was quite a sweeping treating Google like a public utility in so many ways and divestitures. And will they continue that at full throat? That’s going to be an early test.
Now, the problem for DOJ is going to be that it’s a question mark whether Gail Slater would be confirmed by March 7th. So, this probably could be a decision for Pam Bondi or some lieutenant of hers, some acting head of the Antitrust Division. But that’s something to look at.
TEDDY DOWNEY: And the states would have a say in all that as well, right?
SETH BLOOM: Well, they would. I mean, the states could continue to seek the same remedy even if DOJ were to pull back, certainly, certainly. But having said that about the remedy, I don’t see any abandonment of the cases that you listed off.
Now, the investigations, we don’t know, but the cases you listed off. I already said, like Ticketmaster. I expect the Trump DOJ to vigorously push Ticketmaster and probably Apple too. Although, it’s true that Tim Cook got close to Trump and was one of those people at the inauguration and giving gifts to the inaugural committee and all that.
We’ll see if that has any impact. But I, in general, think that the cases that have been launched will be continued. But will new cases be launched? What happens with these investigations? We don’t think they’re going to go away. But like the United Healthcare investigation you talked about, that’s a question mark. I just don’t think the same emphasis that Jonathan Kanter put on monopolization cases will necessarily carry through into the Trump administration.
TEDDY DOWNEY: All right. I know we’re out of time, but I’ve got one question from the audience. How do you think the new antitrust decision-makers will approach tech and AI like the Getty/Shutterstock proposed merger? Will any of the Congressional committees try to influence the FTC or DOJ on mergers?
SETH BLOOM: Well, Congressional committees always try to influence FTC and DOJ on mergers. It’s a question of how much they pay attention to it. Now, that it’s, you know, before when the Democrats ran the Senate, Amy Klobuchar and Elizabeth Warren would write letters to, well, actually to the Democratic administration, they’d pay attention to it. But the House Judiciary Committee, if they tried to influence, they probably wouldn’t be met with much success. But now it’s a unitary government, they’ll try to influence it. I don’t know specific cases. I don’t really have any thoughts other than big tech. Yeah, as I said earlier, this administration is hostile to big tech. So, anything involving big tech is going to be problematic. I’d say that.
TEDDY DOWNEY: Okay. We’re out of time. We covered a lot of ground. This is our annual opportunity to get the wisdom from the great Seth Bloom. Seth, thank you so much for doing it again today. It was a real pleasure. Hopefully, our audience enjoyed it as much as I did. I very much enjoyed it.
SETH BLOOM: Thank you, very much, Teddy. I commend everybody to continue to read The Capitol Forum. It’s the best reports of antitrust anywhere.
TEDDY DOWNEY: Thank you, Seth. Always appreciate it. And thanks to everyone for joining us today. This concludes the call. Bye-bye.
SETH BLOOM: Bye-bye.
