As has been reported by William McConnell at TheStreet, former FTC Chair Bill Kovacic delivered a frank assessment of the four leading presidential candidates’ antitrust stances at a program sponsored by the Heritage Foundation on Tuesday. Kovacic noted that the dearth of express statements from the candidates regarding antitrust law requires one to look at their experience to gauge how their prospective administrations might approach issues of competition, stating, “I want to look not just at their comments but at their experience to gauge what they might do.”
Hillary Clinton - Kovacic was critical of Clinton’s characterization of antitrust enforcement as “weak.” In particular, Clinton’s campaign has voiced concern over the FTC’s current efforts to check pay-for-delay agreements in which manufacturers of brand-name drugs that face patent expiry pay generic companies to refrain from launching patent challenges and otherwise delay launching competing, generic drugs. Kovacic was critical of Clinton’s characterization of the current state of the law, about which she purportedly stated, “[r]ight now it’s perfectly legal for a pharmaceutical company to pay a competitor to keep a generic drug off the market.” Kovacic noted that “[i]t’s not perfectly legal to do so” in light of Supreme Court precedent holding that such deals, while not per se anticompetitive, must be assessed on a case-by-case basis.
Ted Cruz - Notably, from 2001 to 2003, Cruz served as head of the FTC’s Office of Policy Planning (Cruz’s tenure overlapped Kovacic’s time as the FTC’s general counsel). Kovacic noted that despite Cruz’s attacks on overreaching federal regulation, his time at the agency should call into question Cruz’s presumed hostility to all federal regulation. Kovacic noted that contrary to press depictions of Cruz as unpopular, he was well liked at the FTC, during which time he pushed the agency to scale back local and state rules regarding teacher certification, hospital accreditation, and local government agreements with cable television providers, all of which he felt discouraged competition.
Bernie Sanders - Not surprisingly, Sanders is the candidate who, in Kovacic’s view, most clearly favors a “process of deconcentration,” particularly in key industries. Sanders has complained in the past of downward pressure on prices paid to farmers who provide livestock and harvests to major food producers. In addition, he has expressed his views that industries with particularly high levels of concentration, namely financial services firms, should be unwound.
Donald Trump - Kovacic noted that while Trump is the hardest candidate to assess, he is interestingly also the only candidate who has been a plaintiff in an antitrust case. According to Kovacic, citing press accounts, Trump was instrumental in persuading the other co-owners of the USFL, established to challenge the dominance of the NFL, to move its season from summer to fall, when it could directly compete with the NFL. In addition, Trump led the charge to file an antitrust lawsuit against the NFL over TV rights and players’ salaries. (Ultimately, the USFL won $3 and disbanded before the fall season commenced.)