Amy Klobuchar Pitches Bill to Revamp 100-Year-Old Antitrust Laws

The list of corporate megamergers permitted by U.S. regulators over the last decade is a jaw-dropping study in the failure of the country’s antitrust laws. It’s against this backdrop that Senator Amy Klobuchar’s proposal to overhaul competition policy is not only sensible, but urgent.

In 60 instances since 2011, companies were able to buy a competitor worth at least $20 billion, and plenty were much larger, at $50 billion and above. Three transactions even topped $100 billion, a stratospheric level reached only one other time in U.S. history: during the dot-com bubble. That all of these deals ostensibly passed regulatory muster suggests current statutes are lacking. They’re also quite outdated, having been written more than 100 years ago for a very different world.

Klobuchar, a Minnesota Democrat who will lead the Senate’s competition panel, plans to introduce legislation that would give antitrust enforcers at the Federal Trade Commission and Justice Department greater power and resources to block potentially harmful mergers. Her proposal directly targets the biggest shortcomings of today’s laws and, importantly, would shift the burden of proof from the regulatory bodies to the companies. Because of the costs and time associated with that added burden, chief executives might be discouraged from even attempting the most visibly problematic deals.

Those who went ahead with a deal would face other significant hurdles. The Clayton Act of 1914 forbids transactions that demonstrably produce a reasonable probability of reducing competition, which essentially requires regulators to present a crystal ball at every case. Klobuchar would rewrite the rules to instead prevent any mergers that “create an appreciable risk of materially lessening competition,” where the mere risk of harm is enough and where “materially” is defined as “more than a de minimis” or trivial amount. Regulators also wouldn’t have to first define the market as they do now — a process that can trip them up in today’s world because the lines between industries have so blurred. Some businesses straddle a few.

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