Dan Crane’s post on the DOJ’s antitrust activity, and in particular, monopolization enforcement, during the Obama administration notes the dissonance between rhetoric and reality. I thought I’d post the following data from the DOJ website concerning Section 2 investigations initiated and cases won over the last 40 years for some perspective.
What do these data show? As Dan notes in his post, and as we’ve discussed, interpreting case activity data as a measuring of competition agency success is problematic for a number of reasons. Case counts are notoriously poor measures of agency performance. Nonetheless, the picture is interesting for reasons unrelated to measuring quality of agency performance.
Recall, for example, the heavy and heated rhetoric related to the withdraw of the Section 2 Report and allegations that the the Tom Barnett DOJ was asleep behind the wheel. Don’t remember? For example, current FCC Chief Economist and TOTM guest-blogger Jonathan Baker described the Barnett DOJ as engaged in a mission of “deregulatory radicalism” and as “radical non-interventionist advocates of broad marketplace rights for big business” who had “gone sadly astray.” President Obama chimed in as well. Along with the promises to reinvigorate antitrust, the President also stopped to disparage the Barnett DOJ, asserting that “We’re going to have an antitrust division in the Justice Department that actually believes in antitrust law” and that “the Bush administration may have the weakest enforcement program in the past half century.” The American Antitrust Institute also relied on exactly these workload statistics to make the case that the Bush II DOJ was asleep behind the wheel with respect to monopolization. Of course, none of these claims is supportable based on case counts alone.
Its early. Very early. Too early to make too much out of these limited data. Perhaps a slew of monopolization filings is right around the corner. Who knows. But even if the current DOJ brings a Section 2 case, and wins it, would that really be enough to distinguish it as a different beast entirely from the Barnett DOJ? Enough to prove that one believed in the antitrust laws and the other doesn’t? Or that one is engaged in mainstream antitrust enforcement and the other an ideological mission of deregulatory radicalism? I don’t think so. But as Dan says, we’ll have to wait to see how the story develops. But the scoreboard at (almost) half-time should serve as a warning to those who would make dramatic rhetorical claims about agency performance based on activity levels.
In the meantime, let me offer the suggestion that whatever the ideological differences between the Barnett and Varnet DOJ’s (for example), one important commonality between the two that is likely to have significant explanatory power is that they both wanted to win the cases they brought. Ideology and rhetoric aside, both face the same Section 2 law. The component of the now-rejected Section 2 Report setting forth the law did so accurately and in great detail. Section 2 law, which derives largely from unanimous and supermajority opinions., is the tie that binds these administrations together. And unless and until the composition of the Supreme Court changes dramatically, it is hard to envision that body of law moving in ways that make it significantly easier for Section 2 plaintiffs. Until then, however many investigations are brought and cases filed, the number of victories is going to be low, and they are going to be limited to cases where there is clear evidence of consumer harm. Apparently, those cases are hard to find across political divides.
Whether or not that is a good thing is a question that must be answered empirically, and deserves serious analysis. But perhaps we can all agree that it is time to take a breather from attacking the competence and motives of enforcement agencies based on a reed as thin as monopolization case counts.