Overview
Antitrust enforcement in both the United States and the European Union may soon change – or it may not. The presidential election in the United States could result in changed leadership at the FTC and Antitrust Division of the DOJ, while the European Union is also undergoing leadership changes, as well as an internal critique of its vision of antitrust enforcement.
In the United States, the direction of the FTC and DOJ Antitrust Division will depend on the new president. Although Vice President Kamala Harris has closer ties to Silicon Valley than President Biden did, it is unlikely she will deviate from his antitrust agenda significantly. If elected, a President Harris is likely to continue to investigate and pursue litigation against Big Tech, as well as to oppose consolidation in other industries, reflecting the continued influence of intervention-minded neo-Brandeisian thinkers on Democrat policymaking. A hint to Harris’s priorities may be soon available, as FTC Chair Lina Khan's term expired on September 25, 2024. Although Khan can stay on until a successor is confirmed, there is pressure on President Biden to reappoint her now, while Democrats know they have control of the Senate. If he does seek to reappoint her for what would be a seven-year term, Vice President Harris may be forced to declare whether she supports Khan's reappointment before the election.
If former President Donald Trump is elected, the outcome is less certain. Republican administrations have traditionally had a less aggressive antitrust posture, especially compared to the Biden administration’s interventionist approach. Former President Trump, though, is somewhat of an anomaly as he has advocated for a more populist approach to antitrust enforcement. Indeed, it was the Trump DOJ that launched the first federal antitrust lawsuit against Google in October 2020. Moreover, Trump's running mate, Senator J.D. Vance, has made his name advocating for a crackdown on Big Tech and more populist economic positions on issues like international trade. In fact, Senator Vance has even praised Chair Khan at the FTC, a position that would have been outside of Republican orthodoxy just a few years ago. While the potential vice president has staked out these positions, it is more likely that a second Trump administration would be similar to the first - more amenable to mergers than a Harris administration and more selective with its enforcement initiatives, especially as much of the Trump populist sentiment is directed more at Big Tech than business generally.
In the European Union, the future is also unsettled. On October 31, European Commissioner for Competition Margrethe Vestager will depart, leaving a position she has held since 2014. Vestager pursued an aggressive antitrust agenda, including targeting Big Tech. Teresa Ribera Rodriquez, currently Spain's Minister for the Ecological Transition and a member of the Spanish Socialist Workers Party, has been nominated as Vestager's replacement, with a broader portfolio as ‘Executive Vice-President of the European Commission for a Clean, Just, and Competitive Transition'. In addition, European Commissioner for Internal Market Thierry Breton recently resigned, blaming President of the European Commission Ursula von der Leyen for maneuvering to replace him. Breton had led the charge against Big Tech in the EU, actions which had recently begun to attract criticism from even his fellow commissioners. France announced that Stéphane Séjourné will be his replacement, but Séjourné's antitrust perspective is unknown at the moment.
The loss of economic policy leaders Vestager and Breton takes place against the backdrop of a strategic reset for antitrust enforcement in the European Union. President Von der Leyen’s aides have indicated that the merger policy of the EU needs reform and former European Central Bank President Mario Draghi recently released a sweeping report on the future of the European Union that calls for modifying EU antitrust policy to allow consolidation that would enhance global competitiveness for European companies, while encouraging robust but more targeted competition enforcement.
Overall, one near certainty is that Big Tech will continue to face scrutiny in both the US and EU, even if the political sands may shift. In the US, a Trump presidency may go back to a more business-friendly approach to antitrust enforcement, albeit with a populist flavor. In the EU also, there appears to be an opening for rethinking key assumptions around merger enforcement, driven by persistent low economic growth and concern that regulation may be hampering rather than helping innovation. The new competition commissioner will be instrumental in determining whether the EU follows the same competition policy as before or prioritizes industrial policy, allowing some mergers that may increase consolidation where they allow leading national and EU companies to compete better on the world stage.
